The opinion filed on August 20, 2010, slip op. 12331, and appearing at [620 F.3d 962] 2010 WL 3274506, is amended as follows:
In Section I.C.1 of the opinion, at slip op. 12351 [620 F.3d at 972-73] 2010 WL 3274506, at *8, the first paragraph, which states:
shall be deleted and replaced with the following paragraph:
In Section II.A of the opinion, at slip op. 12360 [620 F.3d at 976-78] 2010 WL 3274506, at *12, the second paragraph, which states:
shall be deleted and replaced with the following paragraph:
With these amendments, the panel has voted to deny Appellant's and Appellee's petitions for rehearing. Judges Fisher and Berzon have voted to deny Appellant's petition for rehearing en banc and Judge Farris so recommends.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
Appellant's petition for rehearing and petition for rehearing en banc, filed September 16, 2010, is
FISHER, Circuit Judge:
In 1989, a California jury convicted Steven Crittenden of two murders and sentenced him to death. He now appeals the denial of his federal habeas petition. Four claims are at issue here: (1) whether the state trial prosecutor exercised a peremptory challenge to exclude an African-American prospective juror on account of her race in violation of the Equal Protection Clause of the Fourteenth Amendment, as articulated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) whether Crittenden's trial counsel were constitutionally ineffective; (3) whether the shackling of Crittenden during trial was objectively unreasonable; and (4) whether a juror's consultation of the Bible at home and her discussion of a biblical passage with other jurors during penalty-phase deliberations constituted prejudicial juror misconduct. On the Batson claim, we vacate the district court's judgment and remand for further proceedings in light of the standard articulated in
On January 17, 1987, Joseph Chiapella found his parents—both in their late sixties—bound, gagged and stabbed to death in their Chico, California home. Katherine Chiapella sustained massive injuries to her head and face and two deep knife wounds to her chest and upper abdomen. The cause of her death was multiple trauma, primarily from her forehead and chest wounds. William Chiapella suffered 13 wounds of varying severity. The cause of his death was multiple trauma, caused primarily by a large chest wound—a knife was driven completely inside his body— and blunt-force injuries to the right side of his head. Both killings had taken place four days before, on January 13.
The police quickly focused their suspicions on Crittenden. Several months before the murders, the Chiapellas had hired Crittenden, then a student at California State University at Chico, to perform yard work. An eyewitness selected Crittenden's photograph as resembling the college-age, African-American man he saw walking towards the Chiapella residence on January 13. On January 14, Crittenden cashed a $3,000 check signed by Katherine Chiapella, made payable to him and dated January 13. On January 21, the police executed a search warrant on Crittenden's apartment, where they found sheets with a strawberry pattern that matched the design on the bindings used to tie up the Chiapellas. They also seized a pair of black tennis shoes whose soles matched a shoe print left in the Chiapella residence. Crittenden was arrested the same day. At the police station, Crittenden said that Katherine Chiapella had paid him to perform various sexual activities on at least 12 occasions between August and December 1986. He claimed that the $3,000 check was payment for one particular encounter on January 9, which took place in Room 96 of the Thunderbird Lodge. He stated that he had not worn his black tennis shoes since the previous fall. He also told police that he had never gone inside the Chiapella residence and had spent the afternoon of January 13 at the gym with three people he named. These explanations could not withstand scrutiny. Crittenden's bank account did not reflect any of the supposed payments other than the $3,000 check. Neither Katherine Chiapella nor Crittenden had registered at the Thunderbird Lodge on January 9; tellingly, there was no Room 96 at the motel. Crittenden's left thumbprint was obtained from an automatic teller slip found on the desk in the Chiapellas' study. And his alibi witnesses said they last saw him at the gym on January 7, but not thereafter, and so discredited Crittenden's alibi.
While awaiting trial in the Butte County jail in May 1987, Crittenden escaped and then kidnapped a man, commandeering his truck and forcing him to drive towards Chico, and later Sacramento. Upon arriving in Sacramento, Crittenden fled on foot but was apprehended later that day. Crittenden made two subsequent escape attempts in September 1988 and March 1989, the September attempt involving an assault on a prison guard.
The guilt phase of trial began March 14, 1989. Crittenden presented an alibi defense. On April 24, the jury found him guilty of two counts of first-degree murder (with special findings that the murders were willful and premeditated and committed
Penalty phase proceedings began on May 3. The prosecution did not present additional evidence in aggravation. The defense offered testimony from two mental health experts, who testified that Crittenden had brain abnormalities. Crittenden had abnormal electrical activity in the frontal lobe region of his brain, which serves an "executive decision type of function" and judges the appropriate level of emotional response for a given situation. This condition, one expert explained, could be treated with medication, which would "quiet down" the abnormal activity and lead to "improvement in some of the dysfunctional areas." The defense also offered testimony from approximately 20 other witnesses, who remarked on Crittenden's good character and his positive role in their lives. At the conclusion of the penalty phase, the jury fixed the penalty at death.
The California Supreme Court affirmed Crittenden's conviction and sentence in December 1994. See Crittenden I, 36 Cal.Rptr.2d 474, 885 P.2d at 895. (His initial state habeas petition had been denied three months earlier.) Crittenden filed a federal habeas petition containing both exhausted and unexhausted claims on October 18, 1996. In March 1997, the district court dismissed that petition without prejudice as a mixed petition under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Crittenden then filed a second state habeas petition. While that was pending, Crittenden filed a federal habeas petition in April 1997 containing only his initially exhausted claims. Following the California Supreme Court's dismissal of his second state habeas petition in 1999, he amended his April 1997 federal habeas petition to include his initially unexhausted claims. In 2000, the district court granted reconsideration of its dismissal of Crittenden's October 1996 federal habeas petition. It deemed his April 1997 federal habeas petition, as amended in 1999, filed nunc pro tunc in October 1996.
The district court directed the magistrate judge to hold an evidentiary hearing on Crittenden's Batson and juror misconduct claims. Following a December 2002 hearing before the magistrate judge, and after reviewing de novo the magistrate judge's findings and recommendations, the district court denied Crittenden's federal habeas petition in its entirety in February 2005. The district court subsequently denied Crittenden's motion to amend the judgment, but modified its analysis of his shackling claim to account for an intervening decision of the United States Supreme Court. Crittenden immediately filed a timely notice of appeal. The district court granted a certificate of appealability for all claims advanced in this appeal.
Even giving Crittenden the benefit of the district court's nunc pro tunc filing order, his federal habeas petition was not "pending" before April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, federal habeas review is governed in the first instance by AEDPA's highly deferential standard of review. See Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003).
We review de novo the district court's denial of habeas relief, see Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir.2000) (en banc), as well as its grant of summary judgment, see Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004). We review de novo the district court's legal determinations, see Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir.2002), including whether the district court properly applied AEDPA's standards, see Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004).
Crittenden is African-American. The victims were a white couple in their late sixties. Crittenden contends that the prosecutor's peremptory challenge of the only African-American prospective juror was on account of her race in violation of the Equal Protection Clause. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm the district court's conclusion that the California Supreme Court's resolution of Crittenden's Batson claim was contrary to clearly established federal law under AEDPA. We also affirm its conclusions at Batson's first and second steps respectively that Crittenden made a prima facie showing of discrimination and that the state carried its burden of articulating a race-neutral justification for the peremptory strike. On Batson's third step, however, we vacate the district court's decision and remand for further proceedings in light of the standard set forth in Cook v. LaMarque, 593 F.3d 810.
Before voir dire, prospective jurors completed a questionnaire asking them about their background and beliefs, including their feelings about the death penalty. Ms. Casey, the only African-American prospective juror, noted on her questionnaire "I don't like to see anyone put to death." During voir dire, Ms. Casey said she was "against death—being put to death" and "against killing people." She said she thought her feelings concerning the death penalty would not cause her to vote against a first degree murder conviction or special circumstances if proven. She later stated, however, that she did not know whether her feelings about the death penalty might impair her ability to fairly evaluate all of the evidence and make a decision regarding the death penalty.
After questioning Ms. Casey, the prosecutor challenged her for cause "based upon her answer that she doesn't believe in the death penalty." The trial court immediately denied the challenge without explanation.
During a short recess, the trial court took Crittenden's Wheeler motion under submission and suggested that jury selection continue because, if the court ultimately granted the motion, the court would simply discharge the jury that had been selected to that point. Ms. Clark, a white woman, was the next juror placed in the jury box. She was not challenged. The defense and the prosecution each made three additional challenges. At that point, 11 jurors were seated in the jury box, including Ms. Clark. The prosecution had used 18 of its peremptory challenges and had eight remaining; the defense had used 17 and had nine remaining. The court then excused the jury and heard argument on the Wheeler motion. It noted that it had read the motion and accompanying documents submitted by the defense counsel and reviewed the transcript of the voir dire.
The defense argued it had made a prima facie case of discriminatory purpose: Ms. Casey was the only African-American prospective juror, she was a solid member of the community in terms of demographic factors and the prosecutor had used only "desultory" voir dire in examining Ms. Casey. The prosecutor did not comment on the prima facie case issue. The court denied the motion, stating:
By the conclusion of jury selection, the prosecutor exercised all 26 of his peremptory challenges. Most of the jurors he peremptorily challenged were equally disinclined from a philosophical standpoint to impose capital punishment as Ms. Casey or more so, although some of the challenged jurors appeared more inclined to impose the death penalty.
On direct appeal, the California Supreme Court rejected Crittenden's Batson claim. In explaining the requirements for establishing a prima facie case, the court stated that the "moving party must show a strong likelihood that such persons are being challenged because of group association." Crittenden I, 36 Cal.Rptr.2d 474, 885 P.2d at 902 (emphasis added) (internal quotation marks omitted). The California Supreme Court concluded that the record supported the trial court's finding that Crittenden failed to make a prima facie showing that Ms. Casey was excluded on the basis of race. Id., 36 Cal.Rptr.2d 474, 885 P.2d at 905.
In his federal habeas petition, Crittenden claimed that this decision was erroneous. Subsequently, the district court ordered an evidentiary hearing on Crittenden's Batson claim, directing the magistrate judge to determine under the second and third steps of Batson whether there was a Batson violation in the trial court.
The prosecutor was deposed before the evidentiary hearing. He said 14 years had elapsed since the jury selection and he had no independent recollection of it or the bases of his for-cause and peremptory challenges of Ms. Casey. Noting that his response was not based on memory, but rather his views after reviewing the record, he said that he used a peremptory challenge to remove Ms. Casey from the jury because she opposed the death penalty, did not want to sit on the jury and had transportation problems. He said he "was looking for strong, independent jurors that [he] thought would be able to unequivocally vote for the death penalty" and "she was not that juror." He also noted that he could not recall what his personal observations were, but that such observations are "very important in the selection of a jury" and "the transcript of Ms. Casey's voir dire ... [had] dashes and spaces, so there must have been pauses" and she thus could have "appeared ... equivocal."
At the evidentiary hearing the prosecutor testified, after reviewing transcripts and questionnaires, that he made three challenges for cause before challenging Ms. Casey on the basis of objections to the death penalty and that when he challenged her for cause he believed it would be granted because "[she] did not believe in the death penalty. She stated that she hated death and did not believe in the death penalty." He answered again the question of why he exercised a peremptory to remove her:
Finally, he explained his rating system for prospective jurors in the jury selection process. After voir dire he would make a notation at the bottom corner of the questionnaire, either a series of X's or checkmarks to indicate his preference and its strength or his hesitation about accepting the prospective juror. The notations referred to whether he thought the prospective juror was favorable or unfavorable to the prosecution, with significant focus on the death penalty issue.
The prosecutor's copies of the juror questionnaires for Ms. Casey and other jurors were entered into evidence. The question about the juror's death penalty views was number 56 on the questionnaire, and, before voir dire began, the prosecutor wrote "56" on the front page of Ms. Casey's questionnaire. Additionally, his copy of Ms. Casey's questionnaire reflected that, at the conclusion of Ms. Casey's voir dire, the prosecutor gave her a rating of "XXXX," the most negative rating within his system, and wrote "DP," "transport problems" and "can't say if would set aside" on her questionnaire.
At step two of the Batson inquiry, the magistrate judge found the prosecutor was "credible and forthright in his factual testimony relating his non-recollection and recollections with respect to his systemic practices and the rating system in this case." Further, he found the prosecutor "was not purposeful in his non-recollection, nor was he creating recollections where he really had none." The magistrate judge then concluded that the prosecutor's articulation of a race-neutral reason could be "reconstructed" based on circumstantial evidence. Relying on (1) Ms. Casey's answers to the juror questionnaire, (2) the prosecutor's pre-voir dire notation of his concern about her response to the death penalty question 56 on the questionnaire, (3) the voir dire transcript and (4) the prosecutor's post-voir dire notations rating her as "XXXX," the magistrate judge found the circumstantial evidence was sufficiently specific to discern with confidence that the prosecutor would have articulated a race-neutral justification for his peremptory challenge had he been asked to do so—namely Ms. Casey's "reluctance or indecision to impose the death penalty"— and therefore that the state had carried its burden at Batson's step two.
At step three, the magistrate judge found "race played some part in the prosecutor's evaluation of Ms. Casey, but was not `the real reason' or effective reason for her being struck from the jury." The magistrate judge reached this conclusion through a comparative juror analysis and found that the prosecutor's extremely negative "XXXX" rating of Ms. Casey could not be explained by her views on the death penalty alone because other jurors who expressed similar views on the death penalty received less negative ratings. The magistrate judge concluded, however, that Ms. Casey's race was not the actual reason for her strike, because "prosecutor Flanagan had a good reason to exercise his challenge which outweighed the bad."
The California Supreme Court's decision with respect to Crittenden's Batson claim was contrary to clearly established federal law under AEDPA because, in affirming the trial court's ruling, it required Crittenden to show a "strong likelihood" that the prosecutor's challenge had been racially motivated. See Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir.2008) (en banc) ("[U]se of the wrong legal rule or framework ... constitute[s] error under the `contrary to' prong of § 2254(d)(1)."). The "strong likelihood" standard impermissibly places on the defendant a more onerous burden of proof than is permitted by Batson's standard of "rais[ing] an inference" of discriminatory purpose. See Johnson v. California, 545 U.S. 162, 169, 170-73, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005); Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir. 2000). We thus must "resolve the claim without the deference AEDPA otherwise requires." Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007); see also Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Wade, 202 F.3d at 1197. In doing so, we review de novo questions of law and mixed questions of law and fact. See Williams, 529 U.S. at 400, 120 S.Ct. 1495; Frantz, 533 F.3d at 739. Factual findings and credibility determinations that were not made by the trial court but were made by the district court after an evidentiary hearing are reviewed for clear error. See Lambert, 393 F.3d at 964.
Batson established a three-step process for adjudicating a claim that a peremptory challenge was based on race:
Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ("Miller-El II") (quoting Batson, 476 U.S. at 94, 96-98, n. 20, 106 S.Ct. 1712) (internal citations omitted). "[T]he burden to prove purposeful discrimination is always on the opponent of the challenge," so the first two steps represent "mere burdens of production" that aid the court in determining, at step three, whether the petitioner has satisfied the ultimate burden of persuasion. Yee v. Duncan, 463 F.3d 893, 898 (9th Cir.2006). Petitioner's burden of proof at
Under Batson's first step, the defendant must establish a prima facie case of purposeful discrimination. See Batson, 476 U.S. at 93-94, 106 S.Ct. 1712. He must show that (1) the prospective juror is a member of a "cognizable racial group," (2) the prosecutor used a peremptory strike to remove the juror and (3) the totality of the circumstances raises an inference that the strike was on account of race. Id. at 96, 106 S.Ct. 1712; see Johnson, 545 U.S. at 169, 125 S.Ct. 2410; Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006). The first and second elements of the test are met here, because the prospective juror is African-American and the prosecutor used a peremptory strike to remove the prospective juror. Thus, only the third element of the prima facie case is at issue—whether the California state court erred in failing to recognize that the totality of the circumstances raised an inference of racial motivation.
The Supreme Court clarified the threshold requirements of Batson's step one in Johnson. There, the prosecutor used three of his 12 peremptory challenges to strike all of the African-American prospective jurors from the jury pool. See Johnson, 545 U.S. at 164, 125 S.Ct. 2410. The defense counsel made Wheeler/Batson motions after the second and third strikes of African-American prospective jurors. After the third strike, the trial court warned the prosecutor that the situation was "very close," but found the defense had not established a prima facie case. Id. at 165, 125 S.Ct. 2410. The Supreme Court reversed, clarifying that the first step was not an onerous burden:
Id. at 170, 125 S.Ct. 2410. On the same day, the Supreme Court also decided Miller-El II, using comparative juror analysis to determine whether the prosecution was motivated by racial bias in exercising its peremptory strikes. See Miller-El II, 545 U.S. at 241, 125 S.Ct. 2317.
With this precedent in mind, and in light of the "totality of the relevant facts," Batson, 476 U.S. at 94, 106 S.Ct. 1712, we conclude that Crittenden produced evidence sufficient to draw an inference that discrimination occurred. Several considerations lead to this conclusion.
As an initial matter, the prosecutor's use of a peremptory strike against the only African-American prospective juror is a relevant consideration, although it does not by itself raise an inference of discrimination. We have previously stated that "[a] pattern of striking panel members from a cognizable racial group is probative of discriminatory intent, but a prima facie case does not require a pattern because `the Constitution forbids striking even a single prospective juror for a discriminatory purpose.'" United States v. Collins, 551 F.3d 914, 919 (9th Cir.2009) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994)); see also Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). We have also recognized that, "[t]he fact that the juror was the one Black member of the venire does not, in itself, raise an inference of discrimination" because "it is not per se unconstitutional, without more, to strike one or
Comparative juror analysis is an established tool at step three of the Batson analysis for determining whether facially race-neutral reasons are a pretext for discrimination, see, e.g., Miller-El II, 545 U.S. at 241, 125 S.Ct. 2317; see also Boyd, 467 F.3d at 1149; Kesser v. Cambra, 465 F.3d 351, 360 n. 2 (9th Cir.2006) (en banc). In addition, comparative juror analysis may be employed at step one to determine whether the petitioner has established a prima facie case of discrimination. Boyd, 467 F.3d at 1149. Crittenden argues that a comparison of Ms. Casey with other jurors—particularly Ms. Clark, the white juror who took her place on the jury— provides evidence sufficient to permit a judge to draw an inference that discrimination occurred.
The prosecutor rated Ms. Casey in his notation system as "XXXX," indicating a very undesirable juror in his view, and Ms. Clark as "✓✓✓" indicating a fairly desirable juror. They were demographically similar apart from race, however, and a comparison of their voir dire responses shows some similarities to the extent that they both expressed general opposition to the death penalty and some hesitancy about its imposition.
A comparative analysis between Ms. Casey and juror Krueger, a white woman who received a rating of "✓✓½✓" from the prosecutor, adds to the evidence from which such an inference could be drawn. Ms. Casey and Ms. Krueger were demographically similar in most respects apart from race. Like Ms. Casey, Ms. Krueger noted on her questionnaire that she was against the death penalty. As was the case with Ms. Clark, although there were some differences in voir dire responses generally, given the demographic similarity and somewhat analogous views on the death penalty, the marked difference in the prosecutor's ratings buttresses Crittenden's prima facie case.
In addition to the above considerations, the circumstances of the prosecutor's for-cause challenge of Ms. Casey also add to the evidence from which an inference of improper discrimination could be drawn. The prosecutor said he challenged her for
In light of the above considerations, we conclude that Crittenden made a prima facie showing sufficient for the first step of Batson.
After the opponent of the peremptory strike makes a prima facie case raising an inference of discrimination, "the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two)." Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The explanation does not have to be "persuasive, or even plausible," because "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Id. at 768, 115 S.Ct. 1769. As we explained in Yee v. Duncan:
463 F.3d 893, 899 (9th Cir.2006).
In the usual case, the Batson analysis takes place during or shortly after jury selection. In those cases, the prosecutor offers a contemporaneous explanation for the strike at step two. Where time has passed since the jury selection, the prosecutor may offer an explanation based on his present recollection of his reasons for striking the juror. Where, as here, time has passed and the prosecutor no longer has a present recollection of his or her reasons for striking the juror, the state may offer an explanation based on circumstantial evidence. See Paulino II, 542 F.3d at 700 ("Evidence of a prosecutor's actual reasons may be direct or circumstantial,
As we explained in Paulino II, the court may reject a reconstructed articulation as mere "speculation" or accept it as properly based on relevant circumstantial evidence. See id. ("[T]he district court did not err in concluding that the speculative reasons offered by the prosecutor did not constitute circumstantial evidence of her actual reasons."). But regardless of how the state offers its race-neutral justification, it is not the task of the district court at step two to assess the truth of the explanation. That is part of the step three analysis. Nor is it the district court's role to conduct its own reconstruction, based on the circumstantial evidence, of what the prosecutor would have said. At step two, the court's role is limited to determining whether the state has met its burden of production at all.
In this case, the government took advantage of its step two opportunity by offering relevant circumstantial evidence suggesting several race-neutral reasons for removing Ms. Casey from the jury. On this basis, the district court properly concluded that the state satisfied its burden of production at step two, which merely required it to show that the prosecutor would have articulated some race-neutral justification if asked.
In step three of the Batson inquiry, the court must decide whether the opponent of the peremptory challenge has carried his burden of proving purposeful discrimination by a preponderance of the evidence. See Batson, 476 U.S. at 98, 106 S.Ct. 1712; Cook v. LaMarque, 593 F.3d at 815 (to show "purposeful discrimination at Batson's third step" the petitioner must establish that "race was a substantial motivating factor").
Acting prior to our decision in Cook, the district court appears to have conducted its step three analysis by asking whether race played a "significant" part in the decision to issue the peremptory strike, and if so whether the defendant could prove under a mixed motives analysis that the strike would have issued even if race had played no role. Cook framed the first inquiry in different terms and eliminated the second. As Cook explains, the proper analysis at Batson's step three is whether the peremptory strike was "motivated in substantial part" by race. Id. If it was so motivated, the petition is to be granted regardless of whether the strike would have issued if race had played no role. Id. ("[W]e reject the ... mixed-motives analysis, and limit our inquiry to whether the prosecutor was `motivated in substantial part by discriminatory intent.'").
As the district court was operating under the erroneous impression that the Batson inquiry required an additional step— i.e., mixed motives analysis—we remand to
Crittenden next argues that he did not receive constitutionally effective assistance from his trial counsel, Dennis Hoptowit and Donald Blake, because they (1) delayed neuropsychological testing until it was too late to present a mental state defense in the guilt phase; (2) did not conduct an adequate investigation into mitigating evidence, which would have revealed that Crittenden had (i) an organic mood disorder with bipolar features and (ii) a history of behavioral problems and childhood abuse; and (3) ineffectually presented social background and mental health evidence in the penalty phase. We affirm the district court's denial of federal habeas relief because the California Supreme Court's rejection of Crittenden's ineffective assistance of counsel ("IAC") claim was not an objectively unreasonable application of clearly established law.
We begin by ascertaining the appropriate standard of review. In relevant part, the California Supreme Court's order denying Crittenden's first state habeas petition stated:
(Emphasis added.) We reject Crittenden's contention that the California Supreme Court adjudicated on the merits only the "delay in seeking neuropsychological testing" aspect of his IAC claim.
Crittenden contends that trial counsel did not timely investigate his mental health and therefore failed to present a mental state defense during the guilt phase that might have won him acquittal of first-degree murder with special circumstances, thereby removing him from death eligibility under California law. See Cal.Penal Code § 190.2(a) (1987) (defining special circumstances). To prevail on a claim of ineffective assistance, the petitioner must show that trial counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Without resolving whether trial counsel's guilt-phase investigation was constitutionally deficient, we hold that it is not objectively unreasonable to conclude that Crittenden has not established prejudice. Consequently, Crittenden is not entitled to federal habeas relief.
For background, we summarize trial counsel's investigative efforts. Hoptowit entered his appearance in January 1987. He obtained from Crittenden's mother some "materials and information regarding prior psychological treatment and counseling received by Mr. Crittenden." Recognizing that the physical evidence against Crittenden was strong, he "assumed from the beginning that there would be a penalty phase" and "[r]elatively early on ... made the decision to have a complete psychological/neurological workup performed." The trial court approved funds for psychological testing in February 1987, but trial counsel did not begin testing until October 1988, one month before jury selection began. On October 21, Dr. Bruce Kaldor, a psychiatrist, met with Crittenden for four hours, took a medical history and administered an alcohol abuse screening test. A week later, Dr. Michael Erickson, a clinical psychologist, met with Crittenden for six hours, completed a life history survey and performed six psychological tests. Drs. Kaldor and Erickson concluded that Crittenden had an antisocial personality disorder. Neither found any indication of organic brain impairment. Dr. Kaldor recommended, however, that further neurological testing be conducted because there were "certain organic mental conditions which are associated with aggressive behavior and poor impulse control." Dr. John Seals subsequently performed electroen-cephalogram ("EEG") and Brain Electrical Activity Mapping ("BEAM") testing on February 24, 1989, three weeks before the guilt phase began. Dr. Seals concluded that Crittenden suffered from an organic brain defect in the frontal lobe region. On March 2, Hoptowit consulted
We do not condone unnecessary delay in starting the investigative process. Fully cognizant of the importance of a "prompt and timely examination," trial counsel nonetheless waited 21 months between obtaining funds for psychological testing and arranging for Crittenden to be examined by Drs. Kaldor and Erickson.
Crittenden asserts that trial counsel should have "concede[d] that [he] committed the killings, but . . . contest[ed] whether he acted with the requisite" intent to kill the Chiapellas. He claims that he intended only to "enter[] the Chiapella residence to commit a burglary" and was surprised by the Chiapellas' unexpected return, whereupon his brain abnormalities prevented him from controlling himself and he killed the Chiapellas. Dr. Bittle averred that Crittenden, "subjected to a highly stressful situation, might very well[have] . . . engage[d] in impulsive, violent behavior." The killings "might, therefore, be more the result of an inability to control certain impulses than deliberate, thought-out planning or premeditation." Dr. George Woods, a psychiatrist who examined Crittenden after the trial, opined that Crittenden "was acting under extreme stress" at the time of the killings and "most likely did not form the requisite intent to kill the Chiapellas." The crimes, he explained, were instead the result of an "explosion of violence." Presented with this testimony, Crittenden argues that the jury may have found reasonable doubt in whether the killing was "deliberate and premeditated," and so acquitted him of first-degree murder with special circumstances.
The facts established in the state court proceedings demonstrate this.
Reviewing the evidence in a post-trial motion to modify the sentence, the trial court commented on the planning and sophistication displayed by the murders: Crittenden "arrived at [his choice of victims] by some degree of planning and calculation," "armed himself in advance and prepared his crimes by bringing with him a pillow case from his own home" and then "rendered [his victims] totally defenseless and at [his] absolute mercy" before killing them. The California Supreme Court agreed, observing that "the totality of the circumstances of the crime amply demonstrates defendant's intent to torture William and suggests neither an `explosion of violence,' nor, in the case of the nonfatal wounds, inadvertent infliction." Id., 36 Cal.Rptr.2d 474, 885 P.2d at 920. "The careful, even excessive, binding and gagging of the victims, involving a considerable expenditure of time and effort, . . . is inconsistent with the theory that an `explosion of violence' occurred." Id.
In the face of this evidence, it is not objectively unreasonable to conclude that the mental state defense presently urged by Crittenden had no "reasonable probability" of altering the jury's verdict. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Neither Daniels v. Woodford, 428 F.3d 1181 (9th Cir.2005), nor Jennings v. Woodford, 290 F.3d 1006 (9th Cir.2002), directs a different result. Daniels, unlike Crittenden, committed his crime before California abolished the diminished mental capacity defense in 1982 and therefore could have avoided a first-degree murder conviction even in the face of "[s]ubstantial evidence supporting . . . premeditation and deliberation." Daniels, 428 F.3d at 1207 & n. 29 (alterations in original) (quoting People v. Cruz, 26 Cal.3d 233, 162 Cal.Rptr. 1, 605 P.2d 830, 835 (1980)).
Crittenden's reliance on Jennings is also unconvincing. Jennings stabbed the victim 14 times in the course of a rape and apparent robbery, and bound the victim's neck and ankles. See 290 F.3d at 1008. Reviewing the matter de novo because the defendant filed his habeas petition before AEDPA's effective date, see id. at 1011, we held that it was reasonably probable that the jury, apprised of evidence that Jennings suffered from "schizoaffective disorder and amphetamine psychosis," might have found a "reasonable doubt as to [his] ability to form the intent required for a first degree murder conviction," id. at 1017, 1019. By contrast, Crittenden's crimes reflected a qualitatively higher degree of deliberation and planning, as evidenced by his extensive preparation beforehand (e.g., rescheduling an overdue rent payment and procuring a knife and binding materials) and his goal-oriented behavior throughout (e.g., methodically incapacitating the Chiapellas and making Katherine Chiapella write him a check).
Given the "ample evidence in the record to demonstrate that a mental impairment defense was wholly inconsistent with [the defendant's] actions," and therefore had no reasonable probability of avoiding a death-eligible, first-degree murder with special circumstances conviction, Totten, 137 F.3d at 1176; see also Douglas v. Woodford, 316 F.3d 1079, 1087 (9th Cir.2003) (finding no prejudice where the evidence overwhelmingly pointed to premeditation and deliberation and it was thus not reasonably probable that the jury would have credited the defendant's mental defense had it been offered), we hold that it was not objectively
Crittenden also contends that his trial counsel conducted an inadequate investigation into his mental health and social history, and then compounded this deficiency by presenting mitigation evidence ineffectually. The California Supreme Court's rejection of these arguments does not warrant federal habeas relief under AEDPA. It is not objectively unreasonable to conclude that trial counsel's investigative efforts did not fall below Strickland's standard of reasonableness and were adequate to support a strategic choice to emphasize Crittenden's positive characteristics and limit testimony about his mental health and history of behavioral problems. For that reason, we hold that Crittenden has not alleged facts stating a colorable, penalty-phase IAC claim. We do not reach Strickland's prejudice prong.
We first address Crittenden's argument that trial counsel's investigation was inadequate because it did not turn up evidence of an organic mood disorder with bipolar features. He asserts that the factual basis for such a diagnosis—a "history of mood swings, aberrant behavior, and psychiatric treatment"—"was well-documented and readily available to trial counsel." In his youth, Crittenden had been prescribed and responded well to lithium, a standard treatment for an organic mood disorder with bipolar features. According to Dr. Woods, its "manifestations" were "readily apparent for many years" and should have been "easily discernable from a review of [Crittenden's] medical and social history." An adequate mitigation investigation would, Crittenden argues, have enabled his psychiatric experts to make that diagnosis before the penalty phase began.
The California Supreme Court's rejection of this claim was not an objectively unreasonable application of clearly established federal law. Trial counsel's performance in the penalty phase is assessed using the "same `clearly established' precedent of Strickland" that applies to all IAC claims. Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In preparing for the sentencing phase of a capital trial, it is imperative that trial counsel undertake a diligent investigation into all reasonably available mitigating information. See Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447, 452-53, 175 L.Ed.2d 398 (2009) (per curiam); Rompilla v. Beard, 545 U.S. 374, 380-81, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins, 539 U.S. at 524, 123 S.Ct. 2527; Summerlin v. Schriro, 427 F.3d 623, 630-31 (9th Cir.2005) (en banc) (describing the "minimal type of `objectively reasonable' investigation any competent capital defense attorney should conduct in preparing a penalty phase defense"). Counsel must conduct "reasonable investigations or. . . make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. The investigation supporting counsel's decision to stop investigating must itself be reasonable, see Wiggins, 539 U.S. at 523, 123 S.Ct. 2527; Stankewitz, 365 F.3d at 719, "evaluat[ing] the conduct from counsel's perspective at the time," Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
In addition to the mental health experts already consulted (Drs. Kaldor, Erickson, Seals, Bittle and Dublin), Crittenden's trial counsel retained Dr. Daniel Edwards, a psychiatrist, to perform additional testing on March 26, 1989. Dr. Edwards also reviewed the results of Dr. Seals' EEG/BEAM testing. The following day, Dr.
None of the seven mental health professionals trial counsel consulted before the penalty phase diagnosed an organic mood disorder with bipolar features. After being informed by Dr. Kaldor that there were "certain organic mental conditions which are associated with aggressive behavior and poor impulse control," trial counsel explored this potential source of mitigating information. It is not disputed that the experts they retained were competent and "qualified to evaluate" Crittenden's mental impairments. Frierson v. Woodford, 463 F.3d 982, 991-92 (9th Cir. 2006); see also Caro v. Calderon, 165 F.3d 1223, 1226-27 (9th Cir.1999) (emphasizing that effective assistance of counsel means employing experts who are qualified to perform the investigation necessary). Trial counsel therefore fulfilled their obligation to "conduct an investigation which will allow a determination of what sort of experts to consult." Caro, 165 F.3d at 1226.
Their investigative duties were not then at an end, however, because in the preparing for the penalty phase, counsel must also "present [appropriate] experts with information relevant to the conclusion of the expert." Id. Here, Dr. Kaldor took Crittenden's medical history and reviewed some of his medical records, although not the ones describing the lithium treatment. Dr. Erickson took his life history. Neither diagnosed an organic mood disorder. Dr. Bittle reviewed Crittenden's "complete medical/psychological file, which at that time included his childhood records," and the reports of Drs. Kaldor, Erickson and Seals. He disputed Drs. Kaldor and Erickson's conclusion that Crittenden had an antisocial personality disorder, but also did not diagnose an organic mood disorder. Dr. Dublin's MRI study found that the "structural integrity" of Crittenden's brain was within normal limits. Dr. Sauer's independent neurological evaluation turned up no abnormalities. Even with the benefit of Dr. Seals' EEG/BEAM results, as well as his own clinical evaluation, Dr. Edwards did not diagnose an organic mood disorder. None of the experts suggested that additional background information or testing was necessary before they could make an accurate evaluation of Crittenden's mental health.
"At the end of the day," Crittenden's "argument turns on a latter-day battle of experts" that is insufficient to warrant federal habeas relief. Sims v. Brown, 425 F.3d 560, 584 (9th Cir.2005). Dr. Woods' singular diagnosis of an organic mood disorder with bipolar features amounts to a difference in medical opinion, not a failure to investigate. See Fields v. Brown, 431 F.3d 1186, 1205-06 (9th Cir.2005), aff'd on reh'g in relevant part, 503 F.3d 755, 783 n. 24 (9th Cir.2007) (en banc). Trial counsel alerted the mental health specialists to the possibility that Crittenden might have organic brain damage and then provided them with relevant background information.
When a reasonable investigation does not turn up signs of additional, reasonably available mitigating evidence, competent counsel may make the judgment not to pursue a line of inquiry further. See Bobby v. Van Hook, ___ U.S. ___, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009) (per curiam). We hold that the California Supreme Court's rejection of this subclaim was not objectively unreasonable.
Crittenden also contends that trial counsel did not adequately investigate his history of childhood abuse and behavioral difficulties. Dr. Woods related that Crittenden had told him that his mother "often used broomsticks, electrical cords, or branches from trees to beat him" and "kept very tight controls" on him. An investigator retained for state post-conviction proceedings reported that Crittenden's younger brother had told her that he and Crittenden "were physically beaten by their mother for the smallest infractions" and "constantly berated" while growing up.
Trial counsel's mitigation evidence presented during the penalty phase belies Crittenden's allegation of insufficient investigation and instead confirms the thoroughness of trial counsel's investigative efforts. Over 20 character witnesses— coaches, teachers, employers, ministers, friends, parents of friends and Crittenden's entire immediate family—ultimately spoke on his behalf. They uniformly said that Crittenden was polite, helpful, honest, hardworking, cooperative, courteous, kind, respectful and close with his family.
Strickland does not require counsel to continue "[q]uestioning a few more family members . . . when a lawyer truly has reason to doubt" that additional mitigating information will be found. Rompilla, 545 U.S. at 389, 125 S.Ct. 2456. Here, trial counsel's investigators spoke with family members and friends who had information about Crittenden's childhood and relationship with his family, but none of them reported anything that would have placed counsel on notice to investigate further. See Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir.1998) ("`[C]ounsel is not deficient for failing to find mitigating evidence if, after a reasonable investigation, nothing has put the counsel on notice of the existence of that evidence.'" (quoting Matthews v. Evatt, 105 F.3d 907, 920 (4th Cir.1997))); accord Douglas, 316 F.3d at 1088.
Crittenden lastly criticizes trial counsel's presentation of mitigating evidence, contending they should have linked his brain dysfunction to the killings, explained that it was amenable to treatment and contextualized it within his history of behavioral problems. Given that it is not objectively unreasonable to conclude that trial counsel undertook a reasonable investigation into mitigation evidence, see supra Op. at 962-66, we hold that Crittenden has not rebutted the presumption that trial counsel's subsequent decisions were reasonable under prevailing professional norms.
Crittenden first argues that trial counsel should have presented the import of his brain dysfunction more clearly and stressed that it could be treated. The record does not support this contention. During the penalty phase, Dr. Edwards and Dr. Seals offered medical testimony about Crittenden's brain abnormalities.
Crittenden complains that trial counsel did not say that such damage affected his "impulse" control, which Hoptowit now says was a "terrible oversight." We decline to assign any talismanic quality to the word "impulse." Although "lay people" might well be "unable to make a reasoned judgment" by themselves about the significance of a technical medical finding, Hoptowit had Dr. Seals explain the practical effect of frontal lobe damage on a person's ability to control himself. Cf. Caro, 165 F.3d at 1227 (emphasizing the importance of having experts explain technical psychological conditions to the jury). The jurors heard that the frontal lobe area inhibited behaviors, selectively released activities, regulated emotional responses, judged the appropriateness of actions and served as the "executive control" area of the brain, all of which provided the context needed to make the relevance of Crittenden's brain dysfunction clear.
We also reject Crittenden's contention that trial counsel's mitigation strategy was so "ill-chosen that it was unreasonable on its face" because it emphasized Crittenden's positive characteristics "without offering some compelling . . . evidence about why he suddenly committed two murders."
Hoptowit's opening statement in the penalty phase explained that Crittenden had an "average normal childhood, much like any of us would have had." By hearing from his family and friends, the jury would gain "some understanding of Steve Crittenden, the person." Hoptowit then capably elicited humanizing testimony that emphasized Crittenden's positive qualities. His closing argument returned to that theme, speaking of the love, respect and caring for Crittenden displayed by the many witnesses who testified on his behalf and downplaying his future dangerousness. Returning a sentence of life without parole instead of death would "allow the good to continue" in Crittenden—because up until the time of the murders, Hoptowit said, he had led a "legally blameless life"—while punishing, controlling and treating the "bad in Steve." To dwell on his extensive history of behavioral problems and his brain dysfunction, as Crittenden now suggests, would have undermined this strategy. Hoptowit believed that "presenting extensive evidence" about those issues would just have given the jury more "reason for imposing the death penalty."
Trial counsel faced a tough choice given what they knew at the time: they could elaborate upon Crittenden's brain dysfunction, discuss his history of behavioral problems and hope that the jury would find him less culpable, even if still legally responsible, for the murders. Or they could portray him as a young man with many redeeming personal qualities, who, perhaps because of a treatable brain defect, lost control of himself in a fateful departure from an otherwise law-abiding life. Although Strickland allows reviewing courts to engage in a rough comparison of the risks and benefits associated with a lawyer's decisions, see, e.g., Darden v. Wainwright, 477 U.S. 168, 186, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir.1992) (per curiam), we do not view Crittenden's newly proposed strategy as so obviously superior that any reasonably competent counsel would be compelled to select it over the
The stringent standards for habeas relief established by 28 U.S.C. § 2254(d) have not been satisfied. We hold that Crittenden has not stated a colorable ineffective assistance of counsel claim with respect to either the guilt or penalty phases of his trial, and therefore affirm the district court's dismissal of this claim.
Crittenden contends that his shackling was not objectively reasonable because there was no compelling justification and the trial court failed to pursue less restrictive alternatives before imposing the physical restraints. We apply AEDPA's deferential standard of review with respect to the state court's reasoned denial of this claim when it rejected Crittenden's first state habeas petition. In Crittenden's subsequent federal habeas proceedings, the district court determined that the shackling was not unconstitutional in light of Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), which clarified that the requirement of considering less restrictive alternatives to shackling was not clearly established Supreme Court law at the time. We agree.
Before trial, the court held a hearing to determine whether to implement security measures during the trial. An assistant marshal for the Placer County Sheriff's Office and a criminal investigator for the Butte County District Attorney's Office testified. After escaping from jail in May 1987, Crittenden entered a house and took the resident at gunpoint, with what was later identified as a toy gun, and forced him to drive to Sacramento, where police apprehended Crittenden. Several months later, Crittenden attempted another escape with two other inmates. Crittenden grabbed a guard and slammed him against cell bars. Additional correctional staff intervened and foiled the attempted escape.
Both the assistant marshal and criminal investigator also testified that Crittenden had not had any behavioral problems in his previous court appearances during which security arrangements were limited to physical restraints while he was escorted into the courtroom, which were released when he sat down at counsel table. The criminal investigator testified that he believed Crittenden was an escape risk.
The assistant marshal proposed security arrangements for the trial, which included escorting Crittenden into and out of the courtroom in leg irons and handcuffs, outside of the jury's presence, and placing him in a security chair and using a chain to secure him to the chair when seated at the counsel table. The chain would be hidden by loose clothing and the leg irons and handcuffs would be removed before the jury entered the courtroom. He stated that Crittenden would need to be chained or handcuffed to the security chair to prevent him from being free to move about, but that he intended "not to have Mr. Crittenden appear in any sort of restraints in the presence of the jury," and that the jury not see the chain.
The trial court found a "likelihood of escape in the courtroom or . . . nonconforming conduct relating to that in the courtroom" based on Crittenden's escape from jail, his subsequent attempted escape
First, Crittenden argues that his shackling was not objectively reasonable because the justification was not compelling. He fails to rebut by clear and convincing evidence the trial court's finding on the record that the restraints were justified by a state interest specific to Crittenden's trial, namely his likelihood of escape or "nonconforming conduct." See § 2254(d)(2), (e)(1). Although his escape history stemmed from a time "long before commencement of trial" and he was cooperative in his previous court appearances, these arguments and their factual basis were before the trial court at the time it decided to impose restraints. Crittenden has not presented any new evidence to warrant a different conclusion.
Next, Crittenden argues that the trial court, contrary to clearly established federal law, did not pursue less restrictive alternatives before shackling him to the chair and did not weigh the benefits and burdens of shackling against other options. The procedures that Crittenden refers to are rooted in a line of our cases such as Castillo v. Stainer, 983 F.2d 145, 147-48 (9th Cir.1992), and Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir.2003). We agree with the district court that established Supreme Court law at the time of Crittenden's trial did not require such procedures.
In Deck, the Supreme Court concluded that "[t]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial." 544 U.S. at 629, 125 S.Ct. 2007. The Court made clear: "The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling." Id. at 633, 125 S.Ct. 2007. One of the security concerns the Court specifically identified is "escape risk[ ] related to the defendant at trial." Id.
Of importance here, Deck suggests that there was not clearly established law requiring a trial court to take specific procedural steps before imposing physical restraints. The Supreme Court stated that
Id. at 629, 125 S.Ct. 2007. The Court cited federal and state cases, including case law from this circuit, that discuss and apply various different procedural and evidentiary requirements to justify restraints. Id. at 628-29, 125 S.Ct. 2007. This suggests that our case law requiring a court to weigh the benefits and burdens of shackling and pursue less restrictive alternatives was not clearly established federal law. See Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (divergence of courts reflects lack of guidance from the Supreme Court as to clearly established federal law). Deck also does not itself mandate specific procedures or evidence that must be considered before imposing restraints. Deck leaves this to the discretion of the trial court, stating that it "may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial." 544 U.S. at 629, 125 S.Ct. 2007.
Therefore, even if the trial court did not weigh the benefits and burdens of shackling or consider less restrictive alternatives, as Crittenden argues it failed to do, clearly established federal law did not require it to do so. The trial court held a hearing and then exercised its discretion to take account of special circumstances, specifically "the likelihood of escape . . . or the fact of nonconforming conduct relating to that in the courtroom," that it determined called for shackling in the manner ordered. The trial court made a clear record of its findings and explained that its determination was based on Crittenden's prior escape, escape attempt, the nature of the charges and his athleticism.
We hold that the trial court's decision to permit physical restraint of Crittenden at trial was not based on an unreasonable determination of fact, and Crittenden has failed to rebut this presumption by clear and convincing evidence and has not established a violation of clearly established law. We need not reach the issue of whether Crittenden was prejudiced by the shackling.
Crittenden appeals the district court's denial of relief on his claim of juror misconduct based on juror Clark's consultation of the Bible and the jury's brief discussion of a biblical passage during penalty phase deliberations. The California Supreme Court denied this claim on the merits. We affirm.
Penalty phase deliberations began on the afternoon of Wednesday, May 10, 1989, and continued all day Thursday and Friday. Over the weekend, Clark later acknowledged,
We need not decide here whether clearly established Supreme Court law required the treatment of the Bible as extrinsic evidence, compare McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir.2005) (holding that biblical passages constituted extrinsic evidence), with Robinson v. Polk, 438 F.3d 350, 363 (4th Cir.2006) (holding that biblical passages did not bear on facts at issue in the case and so were not "extraneous prejudicial information"), or whether reading and sharing biblical passages constitutes juror misconduct, see Fields v. Brown, 503 F.3d 755, 778, 781 (9th Cir. 2007) (en banc) (declining to decide whether juror misconduct occurred when a juror shared his notes, including a biblical reference, with other jurors because the noted had "no substantial and injurious effect or influence in determining the jury's verdict"). Even if Clark's consulting of the Bible and sharing of the Genesis 9:6 passage with other jurors violated Crittenden's Sixth Amendment right to a jury "verdict . . . based upon the evidence developed at the trial," Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), he has not established prejudice. The alleged introduction of extrinsic evidence into deliberations did not have a "`substantial and injurious effect or influence in determining the jury's verdict'" of death. Lawson v. Borg, 60 F.3d 608, 612 (9th Cir.1995) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).
Clark's private study of the Bible was not prejudicial. Although we agree that he was "entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors," Parker v. Gladden, 385 U.S. 363, 366, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (per curiam), the bare showing that a juror read a religious text outside the jury room does not establish prejudice. Such a rule has no support in precedent and is, at the very least, in tension with the Supreme Court's teaching that "a sentencing jury must be able to give a reasoned moral response to a defendant's mitigating evidence." Brewer v. Quarterman, 550 U.S. 286, 289, 127 S.Ct. 1706, 167 L.Ed.2d 622 (2007) (internal quotation marks omitted).
Our opinion in Fields, in which we also considered a claim of Bible-related juror misconduct, forecloses Crittenden's claim that Clark's mention of Genesis 9:6 prejudiced him. In Fields, the jury's discussion of biblical passages was far more extensive, but we nonetheless concluded, reviewing the matter de novo, that there was no prejudice. The foreperson there "checked
Crittenden attempts to distinguish Fields, but the differences identified—for example, the timing of the Bible-related discussion and the less aggravated nature of his own offenses—do not alter our conclusion that Fields controls here. See Fields, 503 F.3d at 781-82. Clark's conduct had even less of an "effect or influence in determining the jury's verdict" than that of the foreperson's in Fields. Id. at 781. Fields was unable to establish prejudice on more troubling facts and a less deferential standard of review. Nor can Crittenden here. His claim fails.
We vacate the district court's denial of Crittenden's habeas petition on the Batson claim and remand for a determination under Batson's third step whether Crittenden has proved by a preponderance of the evidence that the prosecutor's decision to strike Ms. Casey was "motivated in substantial part by race." Cook, 593 F.3d at 815. In all other respects we affirm the district court's denial of Crittenden's habeas petition.
