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Original Opinion Withdrawn June 13, 2019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.
OPINION
BEA,
CIRCUIT JUDGE:
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 ...