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Kirkpatrick v. Chappell

United States Court of Appeals, Ninth Circuit

June 13, 2019

William Kirkpatrick, Jr., Petitioner-Appellant,
Kevin Chappell, Warden, California State Prison at San Quentin, Respondent-Appellee.

          Argued and Submitted February 17, 2017 Pasadena, California

          Original Opinion Filed October 10, 2017

          Panel Rehearing Granted July 18, 2018

          Re-argued and Submitted December 10, 2018 San Francisco, California

          Original Opinion Withdrawn June 13, 2019

          Appeal from the United States District Court for the Central District of California No. 2:96-cv-00351-WDK William D. Keller, District Judge, Presiding

          Patricia Ann Young (argued) and Mark R. Drozdowski, Deputy Federal Public Defenders; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

          A. Scott Hayward (argued), Deputy Attorney General; James William Bilderback II, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

          Before: Kim McLane Wardlaw, Carlos T. Bea, and Morgan Christen, Circuit Judges. [*]

         SUMMARY [**]

         Habeas Corpus / Death Penalty

         The panel filed (1) an order withdrawing the original opinion and (2) a new opinion affirming the district court's denial of William Kirkpatrick's habeas corpus petition challenging his capital sentence for two first-degree murders.

         In its order withdrawing the original opinion, the panel explained that this case was originally decided by a panel comprised of Judge Stephen Reinhardt, Judge Kim McLane Wardlaw, and Judge Alex Kozinski. Appellee's petition for panel rehearing and rehearing en banc was pending when Judge Kozinski retired. Following Judge Kozinski's retirement, Judge Christen was drawn by lot to replace him. Following the death of Judge Reinhardt, Judge Bea was drawn by lot to replace him. The newly constituted panel granted Appellee's petition for rehearing before a three-judge panel, and the newly constituted panel re-heard the appeal.

         In its opinion, the panel affirmed the district court's denial of Kirkpatrick's claim that his Eighth Amendment right against arbitrary and capricious sentencing was violated by the jury's consideration, at the penalty phase of his trial, of evidence that he threatened a person's property and poisoned her dogs. The panel assumed that the claim was exhausted, and it concluded that, even under the more favorable standard of de novo review, Kirkpatrick was not entitled to relief. The panel assumed without deciding that the error of California law in allowing the jury to consider the threats and poisoning as aggravating evidence amounted to constitutional error under the Eighth Amendment. The panel held that Kirkpatrick failed to show that he was prejudiced because, in light of the substantial aggravating evidence presented in comparison to the minimal mitigation evidence, absent the improperly-considered facts, the jury still would have found that the aggravating circumstances outweighed the mitigating circumstances and therefore would have been required to impose the death penalty. Thus, any constitutional error was harmless.

         Expanding the certificate of appealability, the panel addressed Kirkpatrick's claim that district court erred in dismissing as unexhausted the claims from his state court habeas petition that the California Supreme Court deemed waived. Kirkpatrick argued that the California Supreme Court erred in finding that he validly waived his state habeas petition because he was not competent to withdraw his petition, and his waiver was not voluntary, knowing, and intelligent. The panel deferred to the California Supreme Court's factual determinations that Kirkpatrick was competent and that his waiver was knowing and intelligent. As to the mixed question of law and fact whether the waiver was voluntary, the panel deferred to the California Supreme Court's underlying factual findings. The panel concluded that Kirkpatrick had not rebutted by clear and convincing evidence the California Supreme Court's finding of waiver.

         The panel declined to expand the certificate of appealability as to the district court's dismissal as unexhausted of a penalty-phase claim of ineffective assistance of counsel.



         I. BACKGROUND

         In September 1983, William Kirkpatrick was arrested and subsequently tried and convicted for robbing a Taco Bell restaurant in Burbank, California and for murdering two Taco Bell employees in the course of his robbery. He was 23 years old. The two victims, one of whom was 16 years old, were later found stuffed in a closet; both had been shot in the head, "execution style." Because the California Supreme Court's opinion in People v. Kirkpatrick, 874 P.2d 248 (Cal. 1994) (in bank), disapproved of on other grounds by People v. Doolin, 198 P.3d 11, 36 n.22 (Cal. 2009), explains the details of Kirkpatrick's brutal double murder, we do not restate them here.

         A. Kirkpatrick's Trial

         More relevant to Kirkpatrick's appeal is the procedural history of his case. After the guilt phase of Kirkpatrick's trial, the jury deliberated for five days. The jury found Kirkpatrick guilty on two counts of first-degree murder, burglary, and robbery. The jury also found that because Kirkpatrick was convicted of two murders and the murders were committed during the commission of a robbery and burglary, special circumstances existed under California Penal Code § 190.2 that rendered Kirkpatrick eligible for the death penalty.

         During the penalty phase of Kirkpatrick's trial, the jury was tasked with deciding whether Kirkpatrick should receive the death penalty or a sentence of life imprisonment without parole. Cal. Penal Code § 190.3. The prosecution and defense had the opportunity to present aggravating and mitigating evidence to the jury to support their arguments regarding which sentence Kirkpatrick should receive. The prosecution presented aggravating evidence of Kirkpatrick's character and his other troubling actions. First, Stephen Thomas told the jury that when he was 16, Kirkpatrick became angry with him while they were drinking at a park after he refused to assist Kirkpatrick in a violent robbery. Thomas stated that Kirkpatrick dragged him to the park restroom, choked him, and tried to stick his head in a toilet.

         Another witness, Jacob De Binion, testified that when he was 17, he met Kirkpatrick in a Der Wienerschnitzel restaurant parking lot and accepted Kirkpatrick's invitation to drink beer in the back of a van. After having a few drinks together, De Binion testified that Kirkpatrick physically forced him to perform oral sex and kiss him and threatened to kill him if he refused.

         Finally, Shirley Johnson testified that Kirkpatrick left his calculator, bicycle, and projector at her house in late May 1983. Kirkpatrick attempted to retrieve his belongings from her house, but his calculator was nowhere to be found. Kirkpatrick subsequently made numerous phone calls to Johnson and threatened to "do damage" to her dogs, daughter, house, and herself if his calculator was not returned.

         In late June 1983, Johnson came home and found that her two dogs had been poisoned and temporarily paralyzed. Later, Kirkpatrick called Johnson to tell her that he had "taken care" of the dogs. Kirkpatrick's defense counsel objected to Johnson's testimony about Kirkpatrick's dog poisoning and property threats, and argued that making threats to property and poisoning dogs were not facts that may be considered as aggravating evidence under California Penal Code § 190.3, which permits the jury to consider only violent acts and threats of violence to people. The court overruled defense counsel's objection without explanation.

         The defense's mitigation presentation consisted solely of Kirkpatrick's testimony, in which he reasserted his innocence and said he aspired to be a writer. Kirkpatrick's lawyers spoke to his mother in preparation for the mitigation presentation and told the court that she would be "very, very helpful to the defense," but Kirkpatrick ordered his lawyers not to contact or present any family members as witnesses.

         After both sides rested, the court instructed the jury. Relevant here, the court told the jury:

         Evidence has been introduced for the purpose of showing that Defendant Kirkpatrick has committed the following acts:

1. Oral copulation by means of force upon Jacob De Binion, age 17;
2. An assault upon Stephen Eugene Thomas;
3. Making threatening telephone calls to Ms. Shirley Johnson;
4. Administering poison to animals;
Which involved the express or implied use of force or violence or the threat of force or violence. Before you may consider any such criminal acts as an aggravating circumstance in this case, you must first be satisfied beyond a reasonable doubt that the Defendant Kirkpatrick did commit such criminal acts. You may not consider any evidence of any other criminal acts as an aggravating circumstance.

         In closing argument, the prosecutor noted the absence of mitigating factors from Kirkpatrick's presentation. He urged the jury to impose the death penalty because the aggravating evidence outweighed the mitigating evidence. He also relied heavily on the dog poisoning incident to highlight Kirkpatrick's character:

We brought in Shirley Johnson. Shirley Johnson committed the crime of having the defendant's calculator and he wanted the calculator back.
So what did the defendant do? The defendant made a series of threatening phone calls. "I will get you; I'll get your dogs and I'll get your children. Your daughter."
The next day or a few days later, Mrs. Johnson came home and her dogs were paralyzed. A few days later she gets a phone call from Mr. Kirkpatrick.
"I have taken care of your dogs. You and your daughter are next. Give me back my calculator." . . .
What does it show you about Mr. Kirkpatrick? It shows you he is a man who has callousness, a callous disregard for the feelings of other people. This person who is absolutely amoral and will stop at nothing to get what he wants. He will go so far as to poison Mrs. Johnson's dogs to get his calculator.

         The prosecutor continued: "With the Johnsons, he had a choice. He had a choice to leave [them] alone and get his calculator back some other way: but he chose to poison the dogs and to make threats. . . . Mr. Kirkpatrick is here right now because of choices he made. . . . I would ask you to think about that when you think about pity, when you think about sympathy."

         At closing argument, Kirkpatrick told the jury that he had not received a fair trial.[1] He argued that his attorneys failed to call certain witnesses and ask specific questions. He said he was "frightened" and "mad" that prosecutors were sending an innocent person to jail. He also told jurors that he did not blame them for finding him guilty and that he would have done the same thing if he had been in their position.

         Prosecutors rebutted Kirkpatrick's closing argument by suggesting that Kirkpatrick was "an anarchist" and that his only contribution to society was "to inflict havoc, pain and suffering on innocent people." The prosecution reminded the jury that Kirkpatrick made deliberate choices to kill two Taco Bell employees; to force Jacob De Binion to perform oral sex and kiss him; to assault Stephen Thomas after he refused to help him with a violent burglary; and to threaten Shirley Johnson, her daughter, and her dogs to retrieve his calculator. The prosecution concluded by stating that because the aggravating factors "so far outweigh anything in mitigation," the jury "shall impose the penalty of death."

         The jury began its penalty deliberations on June 19, 1984. Several hours into deliberating on June 20, 1984, the jury sent a note to the court asking: "[W]hat [are] the legal definitions for aggravating and mitigating circumstances as they apply to the instructions in making the determination of this sentence?" The court responded that the jury members "have been given all the legal definitions [they] need [and that] [a]ll other words have their common definitions." On June 21, 1984, the jury returned a death verdict for both murders.

         At Kirkpatrick's sentencing hearing on August 14, 1984, Kirkpatrick moved to modify the verdict imposing the death penalty. The court reviewed the aggravating circumstances and stated that the only mitigating factors were Kirkpatrick's lack of prior felony convictions and his young age of 23. Because the court found that the aggravating circumstances outweighed those in mitigation, it denied Kirkpatrick's motion to modify the verdict and imposed a sentence of death.

         B. Kirkpatrick's Direct Appeal and State Habeas Petition

         In 1988, Kirkpatrick filed an automatic direct appeal with the California Supreme Court as provided by the California Constitution. Cal. Const. art. VI, § 11, subsec. a. Kirkpatrick argued, in relevant part, that the trial court violated state law and his Eighth Amendment rights when it instructed the jury that it may consider evidence of Kirkpatrick's dog poisoning and property threats as aggravating circumstances in deciding whether to impose the death penalty. Specifically as to his Eighth Amendment argument, Kirkpatrick argued that allowing the jury to consider those facts violated the Supreme Court's "narrowing" requirement that a capital sentencing scheme must provide a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." He further argued that these statements "were highly prejudicial" and had "minimal, if any, legal relevance to the important issue of whether the death penalty should be imposed."

         The California Supreme Court affirmed Kirkpatrick's conviction and sentence in a lengthy published opinion. Kirkpatrick, 874 P.2d at 269. The court held that evidence of Kirkpatrick's dog poisoning and property threats was admissible as a matter of state law because it showed the surrounding circumstances of Kirkpatrick's threats to harm Johnson's daughter. Id. at 263. The court did, however, hold that the trial court erred in instructing the jury that it could consider evidence that Kirkpatrick threatened Johnson's property and poisoned her dogs as aggravating circumstances in determining whether to impose the death penalty because California Penal Code § 190.3 allows the jury to consider "only those threats of violent injury that are directed against a person or persons." Id. at 264. It nevertheless found that the error was harmless. Id. at 264- 65.

         As to Kirkpatrick's Eighth Amendment argument, the court explained that California law performs its required narrowing at the eligibility phase, not the penalty selection phase of the trial. Id. at 264. As a result, it held that the aggravating factors considered at the penalty selection phase are not relevant to whether the State's scheme adequately narrows the class of persons who receive the death penalty. Id. Because the court found that Kirkpatrick's Eighth Amendment argument was "founded upon a mistaken understanding of the purpose of aggravating and mitigating circumstances in [California's] death penalty scheme," it denied him relief on his Eighth Amendment claim. Id.

         C. Kirkpatrick's Federal Habeas and State Habeas ...

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