This court's opinion, filed August 28, 2012, is amended as follows:
2. On page 9872, replace the first sentence of the paragraph that begins on the bottom of the page and extends to the next page, with the following sentence:
With the opinion as amended, the Appellant's petition for panel rehearing and petition for rehearing en banc, filed October 2, 2012, is denied. The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35; 9th Cir. R. 35-1 & advisory committee note 2. No subsequent petitions for rehearing, rehearing en banc, or rehearing before the full court may be filed.
CLIFTON, Circuit Judge:
Jonathan Lee Gentry was convicted in a Washington state court of aggravated first degree murder, with a finding of the aggravating circumstance of committing the murder to protect or conceal the identity of a person committing a crime, and was sentenced to death. The Washington Supreme Court affirmed the conviction and sentence and the United States Supreme Court denied Gentry's petition for certiorari. State v. Gentry ("Gentry"), 125 Wn.2d 570, 888 P.2d 1105, 1156, cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995). Subsequently, the Washington Supreme Court denied Gentry's petition for post-conviction relief. In re Personal Restraint Petition of Jonathan Lee Gentry ("Gentry PRP"), 137 Wn.2d 378, 972 P.2d 1250, 1271 (1999). Through several orders, the district court denied Gentry's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and he appeals that denial to us.
One of Gentry's habeas claims is that his trial counsel was ineffective at the penalty phase for failing to investigate Gentry's psychological history and consequently failing to present mitigating evidence of dysfunction within that history. The district court determined that this claim was not exhausted before the Washington Supreme Court and, ultimately, that the claim was procedurally defaulted. We disagree with this conclusion of the district court and hold that Gentry exhausted this claim. We also hold that the Washington Supreme Court adjudicated this claim on the merits. We nevertheless affirm the district court's denial of habeas relief on this claim because the Washington Supreme Court's disposition of the claim was not an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts.
We are not persuaded by the other arguments Gentry sets forth. Thus, we affirm the denial of habeas relief on those claims as well.
The body of 12-year-old Cassie Holden was found near a footpath just off of the main trail in a wooded area, adjacent to a golf course in Bremerton, Washington, on June 15, 1988. The victim had been missing since she had gone on a walk in the area two days earlier. She had just arrived in Bremerton on June 11 to spend
The autopsy revealed that the victim was struck in the head with a blunt object 8 to 15 times, and that one of those blows was the cause of death. A 2.2-pound rock was found at the crime scene and believed to be the murder weapon. Although her clothing was partially removed, the autopsy did not conclusively show any evidence of sexual assault.
At the time of the murder, Jonathan Lee Gentry was free on bail and awaiting trial on a charge of first degree rape. He was staying at his brother's home near the golf course. Witnesses reported seeing a man on the golf course trail at about the time of the murder. Their descriptions led to an investigation involving Gentry, which the Washington Supreme Court described as follows:
Gentry PRP, 972 P.2d at 1254.
The State ultimately charged Gentry with first degree felony murder and first degree premeditated murder, and the State gave notice of its intent to seek the death penalty. As to the charge of premeditated murder, the State alleged three aggravating circumstances to support the death penalty: (1) the murder was committed to conceal the commission of a crime; (2) the murder was committed to conceal the identity of a person committing a crime; and/or (3) the murder was committed during the course or furtherance of a sexual assault.
At trial, the State relied on scientific evidence linking the victim with blood found on Gentry's shoe. The tests excluded Gentry and his brother as the source of the blood. The forensic scientist testified that only 0.18 percent of the Caucasian population would have blood matching all of the characteristics examined in the investigation. The victim's blood matched all of the characteristics of the blood taken from Gentry's shoe.
Additionally, the State introduced scientific evidence linking Gentry to a hair found on the victim. The forensic scientist testified that one hair found on the victim was microscopically similar to the arm hair of Gentry and his brother Edward. At the time of the murder Gentry was living at his brother's home, while his brother was at sea with the Navy. The scientist testified, however, that the evidence did not establish that the hairs came only from either Gentry or his brother; the hair could match any other African-American individual with similar hair characteristics.
The State also introduced testimony linking Gentry to the area where the victim's body was found. Three witnesses testified to seeing an African-American man in the area of the murder scene around the time that the victim disappeared. The first two witnesses, a mother and daughter, testified that they saw a man walking past their home, a short distance from where Gentry was living, toward the golf course. The mother later identified the man she saw as Gentry. The third witness testified seeing an African-American man who matched the description given by the mother and daughter standing just off the main trail adjacent to the golf course.
The State called inmates Dyste, Smith, and Hicks to the stand, all of whom testified about incriminating statements Gentry made to them while in prison, consistent with statements they had previously given to authorities. Dyste testified that a card game he was playing with Gentry was interrupted when Gentry was called to speak with investigators. Upon Gentry's return, Dyste testified that Gentry said "They found my hair on the bitch," and that Gentry admitted to killing the victim, but stated that "they can't prove it." Dyste further testified that he was not given or promised anything for testifying and that he did not know Hicks or Smith.
Smith testified that while playing cards with Gentry in prison, Gentry unexpectedly stated, "I killed my girlfriend," and that Gentry proceeded to call her a "bitch." Smith testified that Hicks was also present during this statement, along with a few other inmates who were playing cards together. Smith further stated that Gentry later made similar statements in a conversation between just Smith and Gentry. Smith was cross-examined on his criminal history and his failure to come forward with Gentry's confession until a year after it happened.
Hicks, the last of the three inmates to testify, described a similar statement Gentry made while playing cards with several other inmates, including Smith. Hicks also stated that Gentry referred to the victim as a "bitch." The cross-examination of Hicks included questions about his substantial criminal history, and specifically addressed his conviction for perjury. Hicks stated in both direct and cross-examination that he was not given or promised anything for his testimony.
The jury found Gentry guilty of both felony murder and premeditated murder. The jury also found that Gentry committed the murder to protect or conceal the identity of a person committing a crime, an aggravating circumstance subjecting Gentry to the possibility of the death penalty. The jury did not find that the remaining two aggravating circumstances were proven beyond a reasonable doubt.
Prior to the penalty phase, but after the guilt phase, the Supreme Court decided Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), which removed the federal constitutional bar to the admission of victim impact evidence. As a result, the trial court determined that the victim's father would be permitted to make a statement for the penalty phase jury's consideration. [ER 248; SR 13568.] The victim's father was the State's only penalty phase witness and was briefly questioned about the victim's personality, hobbies, and aspirations, as well as the impact of her death on him. The defense did not cross-examine him.
The defense called six penalty phase witnesses: Gentry's mother, childhood friend, stepfather, two brothers, and cousin. Each testified briefly about Gentry's
At the end of the penalty phase, the jury, after deliberating for approximately five and a half hours, found insufficient mitigating factors to merit leniency and returned with its verdict for the death penalty.
On direct appeal of his conviction and sentence, Gentry raised ten issues to challenge the finding of guilt and another nine issues to challenge his death sentence.
Gentry then sought collateral relief by filing a personal restraint petition ("PRP") before the Washington Supreme Court. As he had been for both his trial and direct appeal, Gentry was found to be indigent, and counsel was appointed to represent him during the PRP proceedings. The Washington Supreme Court set the deadline for the filing of the PRP for six months from the appointment of counsel.
Starting about three months before the deadline for the PRP and continuing after the filing of the PRP, Gentry's counsel filed several discovery motions that suggested a claim of ineffective assistance of counsel at the penalty phase and sought funds for investigation of Gentry's family background and for appointment of a psychiatrist or psychologist to examine Gentry. The first of these discovery motions was filed on April 8, 1996, and requested funds for the appointment of a licensed psychologist. Counsel attached the declaration of Dr. Stephen Cummings, who asserted that, after reviewing Gentry's background, it was possible that Gentry suffered from post-traumatic stress disorder and other personality defects. The Washington Supreme Court denied the motion without prejudice and specified that any refiling should include an explanation for why the appointment of a psychologist was relevant to his claim of ineffective assistance at the penalty phase.
Counsel followed up quickly on April 22, 1996, with a motion for appointment of an investigator and expert. The motion asserted that an examination was necessary to support the ineffective assistance of counsel claim because trial counsel was aware of Gentry's potential psychological dysfunction and the trial court had granted funding and appointed a psychologist to examine Gentry, but no examination was ever conducted. The Washington Supreme Court issued an order stating that it would decide this motion "at the same time as the personal restraint petition" and that the parties could file supplemental briefing on the issues raised in the motion "at the same time the personal restraint petition is filed."
Along with the psychiatric examination, Gentry's PRP counsel also sought funds, via a June 11, 1996, motion, to investigate Gentry's family history and child development, given the preliminary information indicating that Gentry may have suffered from learning disabilities and developmental
Gentry filed the PRP on July 1, 1996, asserting, among other claims, ineffective assistance of counsel for "failure to investigate and present mitigating evidence at [the] penalty phase proceedings." Within the PRP, Gentry referenced another discovery motion, filed concurrently with the PRP, asking for funds to investigate Gentry's social history and for appointment of a psychologist or psychiatrist to examine Gentry in support of the claim.
Gentry then filed a petition in federal district court seeking habeas relief pursuant to 28 U.S.C. § 2254. After a hearing as to the exhaustion of claims raised in the federal petition, the district court ruled that two of Gentry's claims were unexhausted before the Washington Supreme Court: (1) the claim of ineffective assistance of counsel at the penalty phase for counsel's failure to investigate and present evidence of Gentry's social background and mental health; and (2) one of the Brady and Napue claims related to potential evidence of undisclosed benefits received by jailhouse witness Leonard Smith for his testimony ("Smith claim"). The district court later determined that those two claims were also procedurally defaulted. The district court concluded there was no cause for defaulting on the penalty phase ineffective assistance claim, but ordered an evidentiary hearing as to cause for the Smith claim.
In preparation for the evidentiary hearing on the Smith claim, the district court permitted Gentry's counsel to depose two Department of Corrections employees but did not grant requests to depose a few other individuals. Following the evidentiary hearing, the district court determined that Gentry could not show cause for the procedural default of the Smith claim.
Gentry's federal habeas petition also asserted Brady and Napue violations as to withheld information about the other two jailhouse witnesses and the lead detective. The evidentiary hearing on the Smith claim was also used to receive evidence on these Brady and Napue claims, which the district court determined had been exhausted in state proceedings. Following the evidentiary hearing, the district court denied habeas relief as to all the remaining Brady and Napue claims.
Finally, Gentry's habeas petition asserted that one prospective juror, identified as Juror 22, was improperly excluded during his trial. The district court denied Gentry's motion for summary judgment on this claim, and later, on cross-motions on the issue, again denied Gentry's motion for summary judgment and granted the State's motion for summary judgment on the claim.
Following disposition of all of the habeas claims, the district court also denied Gentry's motions for reconsideration and for a new trial, or to amend judgment. Gentry was granted a certificate of appealability on all of the habeas claims described above.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which applies to Gentry's petition, mandates that a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits by a state court unless the state court decision "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
After the original briefing in this case was completed, the Supreme Court decided Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). This decision limits the scope of evidence that we may consider for some of Gentry's claims, specifically, some of the evidence proffered for the first time as part of the evidentiary hearing before the district court. After Pinholster, review of claims adjudicated on the merits under AEDPA must be based only on "the record that was before the state court that adjudicated the claim on the merits." Id. at 1398. The Court reiterated that AEDPA "demonstrate[d] Congress' intent to channel prisoners' claims first to the state courts. `The federal habeas scheme leaves primary responsibility with the state courts....'" Id. at 1398-99 (citation omitted) (quoting Woodford v. Visciotti, 537 U.S. 19, 27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam)). Consequently, "evidence introduced in federal court has no bearing on § 2254(d)(1) review." Id. at 1400.
That limitation does not apply if a claim was not adjudicated on the merits by the state court because, in that event, the habeas claim is not subject to review under
Thus, the application of Pinholster's state-record limitation for § 2254(d) review is guided by first determining whether the state court adjudicated the claim in question on the merits. See Barker v. Fleming, 423 F.3d 1085, 1092 (9th Cir.2005). Where a claim is procedurally defaulted, it has not been adjudicated on the merits and is not subject to AEDPA deference. James v. Ryan, 679 F.3d 780, 804-05 (9th Cir.2012).
The district court ruled that two of Gentry's claims were unexhausted and procedurally defaulted: (1) ineffective assistance of counsel for trial counsel's failure to present mitigating evidence of Gentry's mental condition at the penalty phase; and (2) Brady/Napue violations for evidence regarding alleged benefits received by witness Leonard Smith. We agree with the district court's disposition of the latter claim. As to the former claim, though, we disagree with the district court's determination and conclude that Gentry's claim of ineffective assistance of counsel for failure to present mitigating evidence was both exhausted before the Washington Supreme Court and adjudicated on the merits by that court. However, we ultimately affirm on that claim because we agree that habeas relief is not warranted under our AEDPA review. We also affirm the denial of habeas relief on all of Gentry's other claims.
After reviewing the record, including the many motions and declarations filed before the Washington Supreme Court, we disagree with the district court's conclusion that Gentry did not exhaust his claim of ineffective assistance based on trial counsel's failure to present mitigating evidence at the penalty phase. The district court held that the mental health claim was not factually developed and was thus unexhausted. However, there was ample discussion in the filings before the Washington Supreme Court to demonstrate that Gentry was asserting the claim, that there was factual support for the claim, and that he sought funds to further develop that factual support.
"[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); see O'Sullivan v. Boerckel, 526 U.S. 838, 842, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (concluding that "the state prisoner must give the state courts an opportunity to act on his claims" and holding that "[s]ection 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims"). The federal claim is fairly presented if raised in the petition itself, an accompanying brief, or another similar document filed with that court. See Baldwin v. Reese,
The PRP unequivocally set out a federal claim of ineffective assistance of counsel, invoking the Sixth Amendment and the applicable standard under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Washington Supreme Court was thus alerted to a claim under a specific provision of the United States Constitution. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). Subheading E to this claim specifically stated an ineffective assistance claim for "Trial Counsel's Failure To Investigate And Present Mitigating Evidence At Penalty Phase Proceedings." The body under this subheading briefly described Gentry's dysfunctional family background, as well as the likelihood that Gentry had mental deficiencies. The PRP also stated, however, that further factual support for this claim would come through discovery that Gentry was at that time seeking to obtain, specifically referring to the motions to amend and for discovery funds, which were filed on the same day as the PRP.
The motions provided further factual allegations to support the specific claim and gave the Washington Supreme Court a fair "opportunity to pass upon and correct" the issue. Baldwin, 541 U.S. at 29, 124 S.Ct. 1347 (internal quotation marks omitted). Most telling, the motions stated two factual allegations that could entitle Gentry to relief on the claim: (1) trial counsel never conducted an investigation into Gentry's family background; and (2) Gentry was never evaluated by a psychiatrist or psychologist in preparation for trial.
We thus hold that the PRP, coupled with the facts set forth in the motions directly referenced by the PRP, sufficiently exhausted the claim because it gave the Washington Supreme Court an opportunity to remedy any potential ineffective assistance by trial counsel at the penalty phase. Id.; see Scott v. Schriro, 567 F.3d 573, 583 (9th Cir.2009) ("All exhaustion requires is that the state courts have the opportunity to remedy an error....").
We also disagree with the district court's conclusion that this claim was procedurally defaulted.
In its PRP decision, the Washington Supreme Court decided the substance of the claims raised in the PRP together with the issues raised in separate motions. The Court emphasized that all of the motions had been "passed to the merits." Gentry PRP, 972 P.2d at 1254. Consistent with this description, the claims and the motions
Accordingly, our review of this exhausted claim that was adjudicated on the merits is governed by AEDPA. As discussed further below, the Washington Supreme Court did not unreasonably apply federal law under Strickland in denying Gentry's ineffective assistance claim for failure to present mitigating evidence.
In order to establish ineffective assistance of counsel, a petitioner must prove both that his counsel was deficient and that the deficiency caused prejudice. To establish deficient performance, Gentry must show that counsel's performance "fell below an objective standard of reasonableness" based on "the facts of the particular case [and] viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 688, 690, 104 S.Ct. 2052. To demonstrate prejudice, Gentry "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. In reviewing the Washington Supreme Court's decision, we are guided by the principle that when a petitioner raises a habeas claim under Strickland, he must surmount two highly deferential standards of reasonableness. See Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) ("Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)."). "[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
We conclude that the Washington Supreme Court's discussion of Gentry's ineffective assistance claim for failure to present mitigating evidence was reasonably resolved at the deficient performance prong. Failure to meet either prong is fatal to a claim and there is no requirement that the panel "address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Because we determine that it was not unreasonable to dispose of this claim on the deficient performance prong, there is no need to address the prejudice prong.
The Washington Supreme Court's analysis of the claim indicates its conclusion that there was insufficient evidence on the record to support the claim that Gentry's trial counsel was deficient with regard to investigating Gentry's mental state and presenting mitigating evidence at the penalty phase. The court's analysis specifically as to the claim for failure to present mitigating psychological evidence states in full:
Gentry PRP, 972 P.2d at 1264. To analyze deficient performance, the Washington Supreme Court must have "evaluate[d] the conduct from counsel's perspective at the time" and then "judge[d] the reasonableness of counsel's challenged conduct on the facts of the particular case." Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052. The Washington Supreme Court reasonably looked to the only people with first-hand knowledge regarding the lack of supporting evidence for deficient performance: Gentry, his trial counsel, and Dr. Wise.
Trial counsel did in fact submit itemized affidavits in support of most of the claims in Gentry's PRP, but as the Washington Supreme Court noted, those affidavits "say nothing about" this particular claim. Gentry PRP, 972 P.2d at 1264. Notably, although the affidavits did not mention this specific ineffective assistance claim, they did discuss the other ineffective assistance claims in detail, along with Gentry's other claims.
Although Gentry contends that the Washington Supreme Court should have
Gentry alleges violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), related to exculpatory evidence withheld by the State to impeach jailhouse witness Leonard Smith, who purportedly received benefits from the State of Oregon for his testimony ("Smith claim"). We conclude that the claim was not properly exhausted before the Washington Supreme Court and that there is no cause to excuse the later procedural default of the claim.
Exhaustion requires a statement of the "operative facts" that support the federal legal theory giving rise to the claim. Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir.2008). In the PRP, Gentry effectively admitted that there were no known operative facts to support the Smith claim. The only language in the PRP relating to Smith receiving any benefit for his testimony came in this single sentence:
This sole reference appeared under the heading of the claim of Brady and Napue violations specifically as to Dyste and Hicks, but not Smith. Notably, the statement itself referred to the inability to discover any evidence of a Brady or Napue violation as to Smith. A statement that admits a lack of supporting facts does not equate to the required "statement of facts that entitle the petitioner to relief" in order to exhaust a claim. Scott, 567 F.3d at 582. Without any factual basis to analyze a claim, the Washington Supreme Court was not provided an opportunity to pass on the Smith claim.
Consequently, the Washington Supreme Court in fact did not address any withheld exculpatory evidence as to Smith and only discussed the claims related to Dyste and Hicks. Gentry PRP, 972 P.2d at 1260-63. The Washington Supreme Court's opinion only mentioned Smith in the context of Gentry's claim that Smith and Hicks conspired to frame Gentry. Id. at 1260, 1262.
We agree with the district court that Gentry cannot show cause for the later procedural default of the unexhausted Smith claim. The claim was procedurally defaulted one year from the time of final judgment. Wash. Rev.Code § 10.73.090. An analysis of cause and prejudice for default of a Brady claim mirrors the final two requirements of a Brady claim itself:
Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (citations omitted).
After holding an evidentiary hearing on the Smith claim,
Gentry's best factual support for the Smith claim focuses on circumstantial evidence of changes to the treatment of Smith's criminal charges around the time of Smith's testimony in the Gentry trial. However, Smith consistently explained, both on cross-examination at trial and after Gentry's conviction and sentence, that there was no connection between that favorable treatment and his testimony. Moreover, the deputy prosecutor also testified at the evidentiary hearing that Smith never asked for or was offered any type of benefit for his testimony. Because there is no actual evidence of a deal for Smith's testimony, the district court's account of the evidence is not "illogical, implausible, or without support in inferences that may be drawn from the facts in the record." United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (en banc). The failure to prove withholding of exculpatory evidence as to Smith does not implicate Brady or Napue and thus does not satisfy the parallel requirement to show cause for default.
The remaining claims were not procedurally defaulted and were adjudicated on the merits by the Washington Supreme Court. Consequently, although the district court held an evidentiary hearing related to some of these claims, any evidence that was not part of the state court record is not reviewable under § 2254(d).
Gentry's remaining Napue claim
The Washington Supreme Court concluded that there was insufficient evidence that Hicks received any real benefit from testifying because the parole board iterated other reasons for Hicks's change in parole status. Consequently, the Washington Supreme Court never reached the question of the materiality of Hicks's testimony. Gentry PRP, 972 P.2d at 1261-62. The district court disagreed with the Washington Supreme Court's adjudication of the first Napue prong, determining that Hicks did in fact receive a benefit, that the State was aware of it, and that the information could have been used to impeach Hicks.
AEDPA does not apply to our review of the materiality of Hicks's false testimony because, as noted above, the Washington Supreme Court never reached an adjudication of the materiality prong of the Napue claim. See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (acknowledging in the Strickland context that "review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong"); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir.2010) (when a state court applies the wrong legal standard, federal courts "must `resolve the claim without the deference AEDPA otherwise requires'"). Nevertheless, we conclude that there is no reasonable likelihood that Hicks's false testimony could have affected the judgment of the jury. See Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir.2008).
Hicks's credibility was called into question substantially throughout his testimony at Gentry's trial. During cross-examination, defense counsel questioned Hicks extensively as to the circumstances and details of his many past crimes, including his conviction for perjury before the same trial judge that presided over Gentry's trial, and also his extensive history of using false names. Hicks also admitted to seeing reports about the murder on television and reading articles about it in the newspaper
The litany of crimes discussed in cross-examination indicated that Hicks was not a trustworthy individual, and the evidence that he received a benefit for his testimony only would have been consistent with that well-supported notion. Further, as Hicks had already been convicted of perjury once (before the same judge) and had admitted to his use of a variety of false identities, the jury was already under the impression that Hicks was prone to lie at any point. On that basis, even if Gentry had an opportunity to impeach Hicks as to his false testimony regarding the denial of any benefit for testifying, that opportunity would have been cumulative of other impeachment evidence and thus immaterial. See Heishman v. Ayers, 621 F.3d 1030, 1035 (9th Cir.2010) (holding that undisclosed Napue evidence is cumulative and thus immaterial where the witness is already sufficiently impeached).
Additionally, Hicks's testimony was not the only evidence supporting the sole aggravating circumstance found by the jury: that the victim was murdered to conceal the identity of a person committing a crime. Although the jury did not specifically identify the underlying crime that was concealed, as the Washington Supreme Court observed, the jury likely found that Gentry had committed sexual assault or attempted sexual assault before the murder. See Gentry, 888 P.2d at 1126; Gentry PRP, 972 P.2d at 1255 n. 1. Hicks testified that Gentry spoke about having sex with the victim. However, the State and Gentry's forensic pathologist both provided direct evidence to support the aggravating circumstance through their agreement that the victim's killer intended a sexual assault, a point about which Gentry's trial counsel also conceded there was "no question in anybody's mind." This expert testimony, coupled with the crime scene evidence that the victim's clothing was substantially removed, exposing her genitalia, meant that Hicks's testimony was not needed to prove the aggravating circumstance found by the jury.
We therefore determine that Gentry did not suffer prejudice at either phase as a result of Hicks's false testimony. At the guilt phase, the DNA, eyewitness, and other circumstantial evidence were more than sufficient for a jury to convict Gentry without considering the testimony of the jailhouse witnesses. Sivak v. Hardison, 658 F.3d 898, 914 (9th Cir.2011) (finding no Napue violation at the guilt phase as a result of false testimony because "[t]here was simply too much evidence placing [the defendant] at the scene of the crime"); see Strickler v. Greene, 527 U.S. 263, 292-93, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (finding no prejudice on a Brady claim because even ignoring the witness's testimony, there was other evidence in the record to support the conviction on its own).
Similarly, at the penalty phase, because Hicks was in fact exposed as a convicted liar and was questioned extensively on his other fraudulent behavior and criminal activity, there is no reasonable likelihood that a juror's judgment could have been affected by additional evidence revealing that Hicks received a benefit for his testimony. See Sivak, 658 F.3d at 917 (concluding that there was a Napue violation at the penalty phase because "this is not a case in which the witness at issue had already been exposed to the factfinder as a liar" (emphasis added)).
We are also not persuaded by Gentry's arguments in support of his other claims of Brady violations. The three elements of a claim for a Brady violation are that "[t]he evidence at issue must be favorable to the
Gentry asserts a Brady claim for the prosecution's failure to disclose the impeachment evidence that jailhouse witness Dyste was a paid informant for the county police and prosecutor's office. It is undisputed that Dyste was a paid informant for the same county detectives and prosecutors who investigated and prosecuted Gentry. Gentry PRP, 972 P.2d at 1261. This fact has impeachment value that would have been favorable to Gentry in trial. See Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. We agree with the Washington Supreme Court and the district court, however, that Dyste's informant status fails to meet the final Brady element of materiality.
Similar to the impeachment of Hicks discussed above, Dyste's credibility was significantly called into question on the witness stand during Gentry's trial. On cross-examination, Dyste admitted that although his testimony was that Gentry stated, "[t]hey found my hair on the bitch," Dyste never actually quoted Gentry as using the word "bitch" in his original tape-recorded statement to the authorities. Instead, Dyste's original statement simply recounted that Gentry had said to Dyste that the authorities questioned Gentry about finding hairs at the murder scene matching Gentry's. Dyste also admitted on the witness stand that he did not come forward about Gentry's confession until nine months after it happened, and only after he was arrested on a burglary charge. Defense counsel also attacked Dyste's credibility with questions about his various past crimes and with questions directed at Dyste's possible racial motives for testifying and his propensity to use racial slurs.
Viewing this evidence collectively, it was not unreasonable for the Washington Supreme Court to conclude that the jury would have returned the same verdict without the testimony of Dyste or any of the other jailhouse witnesses. Even if the impeachment evidence of Dyste's informant status had been presented to the jury, there was no "reasonable probability of a different result." Strickler, 527 U.S. at 291, 119 S.Ct. 1936 (emphasis omitted). The cross-examination of Dyste raised reasonable doubts as to his motivation for testifying and there was sufficient impeachment evidence for the jury to question seriously the veracity of Dyste's original statement. Thus, regardless of the failure to disclose the informant status of Dyste, Gentry received "a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
Gentry also claims a Brady violation for withheld evidence that purports to show that Detective Wright, the lead detective in Gentry's case, was fired from his previous job for misconduct and that he had lied to obtain search warrants in other cases. Although this information was favorable to Gentry as it could have been used to impeach the credibility of Detective Wright for truthfulness, see United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), we conclude that it was not unreasonable to determine that this evidence was not material.
Tangential at best, and contained mostly in newspaper articles, this evidence, even if used to impeach Detective Wright at trial, would not have created a reasonable probability of a different result either at the guilt or penalty phases. United States v. Kerr, 981 F.2d 1050, 1052 (9th Cir.1992)
We are similarly not persuaded by Gentry's three other grounds for ineffective assistance of counsel. As noted above, a claim of ineffective assistance requires first, that counsel's performance "fell below an objective standard of reasonableness" based on "the facts of the particular case [and] viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 688, 690, 104 S.Ct. 2052. The second required element is prejudice, which is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
First, Gentry asserts a claim of ineffective assistance for trial counsel's failure to conduct an investigation that would have uncovered the same impeachment evidence he argues for in support of his Brady claims discussed above.
The district court was correct that Brady materiality and Strickland prejudice are the same. See Bagley, 473 U.S. at 682, 105 S.Ct. 3375; United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1472 n. 6 (9th Cir.1988). Gentry does not dispute that if the information about the witnesses does not constitute a Brady violation for lack of materiality, it will likewise not support an ineffective assistance claim. Because we have held that none of the impeachment evidence argued in support of Gentry's Brady claims is material, that analysis is dispositive of the prejudice prong of an ineffective assistance claim based on the same evidence.
Second, Gentry seeks relief on the ground that trial counsel failed to rebut the prosecution's theory of how the crime occurred. We conclude that the Washington Supreme Court reasonably applied Strickland to this claim and did not reach a decision contrary to it. As the district court pointed out, trial counsel consulted with a medical expert, who assisted them in rebutting many of the assertions of the State's crime scene expert. It was reasonable for the Washington Supreme Court to determine that this was sufficient performance under the circumstances.
Further, the Washington Supreme Court's determination of no prejudice was reasonable. Gentry asserts that the crime scene analyst would have testified that the fatal blows were struck at a different location from what had been presented. However, most relevant here is what the crime scene analyst could not have rebutted. It was reasonable to conclude that even if the crime scene analyst testified, there was still no dispute that the victim was struck in the head with a rock 8 to 15 times and that one of these blows was the fatal blow. Evidence changing just how those blows were administered would not have resulted in a different outcome.
Gentry's final ineffective assistance claim is based on trial counsel's failure to present a statistical expert to challenge the DNA probability statistics presented by the State. We conclude that it was not unreasonable for the Washington Supreme Court to find that
Gentry argues that the admission of victim impact statements during the penalty phase violated constitutional provisions barring ex post facto laws
Wash. Rev.Code § 7.69.030, which allowed victim impact statements to be admitted at felony sentencing hearings, was passed in 1985, prior to Gentry's crime in 1988. However, in State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984), the Washington Supreme Court limited nonstatutory aggravating factors for capital sentencing to the "defendant's criminal record, evidence that would have been admissible at the guilt phase, and evidence to rebut matters raised in mitigation by the defendant." Id. at 1087. While victim impact statements were not explicitly mentioned in the decision, such statements were not allowed in capital sentencing proceedings thereafter because they constituted evidence falling into the nonstatutory aggravating factors category. See id.; Gentry, 125 Wn.2d 570, 888 P.2d 1105, 1137 (1995) ("[V]ictim impact evidence does not fit within any of the categories of evidence held to be admissible during the special sentencing phase of a capital case.").
The Washington Victims' Rights Amendment, passed in 1989 after Gentry's crime, would have changed Bartholomew's prohibition on victim impact statements. But Supreme Court decisions in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), which held that the Eighth Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial, precluded the Victims' Rights Amendment from taking effect.
Thus, the then-newly authorized admission of victim impact statements in Washington was a result of both a state legislative act and a judicial decision by the United States Supreme Court. While the Ex Post Facto Clause applies directly to legislative acts, the Fourteenth Amendment extends Article 1, Section 10's prohibition on ex post facto laws to include judicial decisions. Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). We examine the Victims' Rights Amendment and the Payne decision together in determining whether the admission of victim impact evidence here presents an ex post facto problem. We conclude that neither are violations of the Ex Post Facto Clause or of due process under Bouie.
The Ex Post Facto Clause bars the government from passing laws that impose a new punishment or increase punishment for a crime committed before passage of the law. See Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). The clause serves two purposes: (1) to ensure that the legislature provides fair notice to individuals regarding the effect of their actions, and (2) to prevent the government from arbitrarily and vindictively using its power to convict individuals. Weaver, 450 U.S. at 28-29, 101 S.Ct. 960.
The Supreme Court has generally classified laws that violate the Ex Post Facto Clause into four categories.
Only certain types of changes in the rules of evidence fall into this fourth category. There is a violation under this category when laws that require a minimum type or amount of evidence for conviction are changed by eliminating a type of evidence or decreasing the amount of evidence needed for conviction. However, an ex post facto problem does not arise for a law that "does nothing more than admit evidence of a particular kind in a criminal case ... which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed." Thompson v. Missouri, 171 U.S. 380, 387, 18 S.Ct. 922, 43 L.Ed. 204 (1898); see Hopt v. People, 110 U.S. 574, 589, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (holding no ex post facto violation for a law allowing for convicted felons to testify as competent witnesses because the law did not affect the "quantity or the degree of proof necessary to establish ... guilt").
While the decision in Payne allowed victim impact statements to be admitted, the change did not lessen the degree or amount of evidence required to impose the death sentence. The prosecution was still required to meet its burden of proving a statutory aggravating factor during the guilt phase of the trial and rebutting mitigating evidence at the sentencing phase. Wash. Rev.Code §§ 10.95.020, 10.95.030(2). The penalty phase jury was still required to weigh the victim impact statement, in conjunction with the other evidence, to determine whether that evidence was sufficient to overcome a presumption that remained the same both before and after Payne.
We agree with the Eighth and Tenth Circuits that the admission of a victim impact statement under Payne does not violate the Ex Post Facto Clause. Nooner, 402 F.3d at 807; Neill, 278 F.3d at
Gentry argues that he was denied due process because the admission of victim impact evidence significantly impaired his defense by: (1) denying the defense time to investigate the victim's father and (2) denying the defense the ability to voir dire jury members about victim impact testimony. We conclude that, consistent with our holding that the admission of victim impact evidence did not violate the Ex Post Facto Clause, it also did not constitute a due process violation.
"[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law...." Bouie, 378 U.S. at 353, 84 S.Ct. 1697. Gentry's due process claim fails for the same reasons as his ex post facto claim — the change in evidentiary rules did not alter the elements of the crime or the requirements for conviction. Id. at 353-54, 84 S.Ct. 1697. Admitting victim impact statements did not change the elements of Gentry's crime. Gentry had sufficient notice for due process purposes that his conduct was criminal; there was no lawful conduct that was made unlawful by a retroactive reinterpretation of a statute. See id. at 355, 84 S.Ct. 1697 (civil rights protesters who lawfully entered restaurant were convicted under trespassing statute after court reinterpreted statute to add an additional element, making protesters' conduct unlawful after the fact).
Additionally, the admission of victim impact evidence here is unlike other cases where the Supreme Court and this court have held that a due process violation occurred. The admission of victim impact evidence did not change the requirements for imposing the death penalty or prevent Gentry from arguing the fundamental elements of his defense. See Lankford v. Idaho, 500 U.S. 110, 121-28, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991) (holding that the defendant's due process rights to notice were violated when a judge imposed a capital sentence even though the State took the position that it would not seek the death penalty); Gardner v. Florida, 430 U.S. 349, 358-62, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality) (holding that it was a due process violation where the judge, in issuing the death sentence against the recommendation of the jury, considered a confidential presentencing report that was not considered by the jury); Coleman v. McCormick, 874 F.2d 1280, 1288 (9th Cir. 1989) (determining a due process violation where a statutory change, after Coleman's trial, required an entirely separate penalty phase trial where the presiding judge would consider aggravating and mitigating factors to warrant a capital sentence, when the presentation of mitigating factors played no role under the prior scheme).
Gentry received notice that the State would present victim impact testimony and he had the opportunity to cross-examine and test the witness; Gentry's counsel chose not to cross-examine the witness for tactical reasons. Further, Gentry's trial counsel was aware that the Supreme Court
Moreover, the inability to ask specific voir dire questions related to victim impact evidence did not render the trial fundamentally unfair. See Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). We agree with the district court that other lines of questioning during voir dire addressed the issue of a juror's impartiality when faced with emotionally inflammatory evidence. Further, jurors' potential reactions to parental testimony, of which victim impact evidence is a subset, was part of the defense's voir dire. These lines of questioning were tantamount to "a generalized but thorough" voir dire inquiry, which was constitutionally sufficient. Ristaino v. Ross, 424 U.S. 589, 598, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976).
We also affirm the denial of habeas relief on Gentry's claim that the state trial court's exclusion of prospective Juror 22 during death qualification contravened federal law by permitting the exclusion on a broader basis than the "substantial impairment" standard allowed under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and related cases. We conclude that it was not an unreasonable application of federal law under § 2254(d)(1) for the Washington Supreme Court to determine that the Juror 22's attitude substantially impaired the performance of his duty as a juror. Moreover, in light of Juror 22's ambiguous statements at voir dire regarding his ability to follow the law, the Washington Supreme Court's decision in support of exclusion was also not an unreasonable determination of fact under § 2254(d)(2).
At voir dire, the trial court's oral examination of Juror 22 following a 24-page questionnaire yielded conflicting answers as to whether the juror could set aside his beliefs regarding capital punishment in making a decision, resulting in the prosecution moving to dismiss the juror for cause.
We first address our conclusion that the Washington Supreme Court did not unreasonably apply the substantial impairment standard in upholding the exclusion of Juror 22, followed by our determination that the Washington Supreme Court did not make any unreasonable findings of fact in
Gentry argues that the trial court misapplied the required substantial impairment standard. A juror in a capital case is appropriately excluded where "the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Witt, 469 U.S. at 424, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). When applying the "substantial impairment" standard, a juror's belief that the death penalty is unjust is insufficient grounds for exclusion, so long as the juror can set aside this belief in making a decision. See Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). Although it is impermissible to exclude a juror who is not substantially impaired, a juror's bias does not have to be proved with "unmistakable clarity." Witt, 469 U.S. at 424, 105 S.Ct. 844 (internal quotation marks omitted). Rather, when there is ambiguity in the prospective juror's statements, "the trial court, aided as it undoubtedly [is] by its assessment of [the juror's] demeanor, [is] entitled to resolve it in favor of the State." Id. at 434, 105 S.Ct. 844.
Here, the trial judge did explicitly state that he found "substantial impairment" of Juror 22's duties as a juror.
We also concur with the Washington Supreme Court's determination that the trial court "did not abuse its discretion" in excluding Juror 22, deferring to the trial court's factual findings on the issue. In determining whether juror exclusion for bias is unreasonable under the
There was sufficient evidence in the record to support the trial court's conclusion that Juror 22's personal beliefs about capital punishment would prevent or substantially impair his ability to abide by his oath and follow instructions. We see no reason to question the trial court's decision to exclude given Juror 22's multiple contradictory statements on whether he could or could not follow instructions regarding application of the death sentence. See Witt, 469 U.S. at 434, 105 S.Ct. 844 (finding that ambiguity in a juror's statements must be resolved in favor of the state).
We disagree with the conclusion of the district court that Gentry's claim for ineffective assistance in failing to present mitigating evidence at the penalty phase was procedurally defaulted. That claim was exhausted before the Washington Supreme Court and also adjudicated on the merits. However, we affirm the denial of habeas relief on that claim because the Washington Supreme Court's determination that Gentry failed to establish deficient performance was not an unreasonable application of clearly established federal law and was not an unreasonable determination of fact. We also affirm the denial of habeas relief as to the remainder of Gentry's claims.
529 U.S. at 533 n. 23, 120 S.Ct. 1620 (emphasis in original).