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Wharton v. Chappell

United States Court of Appeals, Ninth Circuit

August 27, 2014

GEORGE HERBERT WHARTON, Petitioner-Appellant,
v.
KEVIN CHAPPELL, Warden, Respondent-Appellee

Argued and Submitted May 15, 2014, San Francisco, California

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Appeal from the United States District Court for the Central District of California. D.C. No. 2:92-cv-03469-CJC. Cormac J. Carney, District Judge, Presiding.

SUMMARY[*]

Habeas Corpus/Death Penalty

The panel affirmed in part and vacated in part the district court's judgment denying relief on George H. Wharton's 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and capital sentence for first-degree murder, and remanded for further proceedings.

The panel affirmed the district court's denial of Wharton's claims that his due process rights were violated when jurors saw him shackled and that his trial lawyer provided ineffective assistance during the guilt phase. The panel held that the district court correctly held (1) that although some jurors occasionally saw Wharton in shackles while being transported through the halls of the courthouse, those sporadic sightings outside the courtroom did not rise to the level of a constitutional violation; and (2) that Wharton's trial lawyer chose a constitutionally permissible guilt-phase strategy of forgoing certain defenses for fear of opening the door to the jury's learning about Wharton's significant criminal history, which included a prior murder and rape.

The panel affirmed in part and vacated in part the district court's denial of Wharton's claim that his lawyer provided ineffective assistance in investigating and presenting mitigation evidence at the penalty phase.

The panel held that Wharton did not overcome the strong presumption that his lawyer provided constitutionally adequate assistance in presenting evidence of his mental illness or his positive adjustment to prison, or in failing to present testimony by Wharton's childhood friend and neighbor.

Regarding Wharton's claim that his lawyer was ineffective in failing to investigate and present testimony by Wharton's half-brother, Gerald Crawford, the district court held that there was no prejudice and, accordingly, declined to decide -- or make the necessary factual findings related to -- Wharton's claim that his trial lawyer was ineffective. The panel held that, if Crawford was available to testify or otherwise provide evidence, and trial counsel was ineffective in his investigation, then Wharton has demonstrated prejudice because the totality of the evidence -- especially Crawford's testimony about sexual abuse ubiquitous in Wharton's family -- gives rise to a reasonable probability that the jury may not have rendered a verdict of death. The panel therefore vacated the district court's decision on this claim and remanded for further factual development and for the district court's assessment, in the first instance, of whether Wharton has established deficient performance.

Marcia A. Morrissey (argued), Santa Monica, California; and Lynne S. Coffin, Los Angeles, California, for Petitioner-Appellant.

Xiomara Costello (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Richard S. Moskowitz and A. Scott Hayward, Deputy Attorneys General, Los Angeles, California, for Respondent-Appellee.

Before: Susan P. Graber, William A. Fletcher, and Richard A. Paez, Circuit Judges. Opinion by Judge Graber.

OPINION

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GRABER, Circuit Judge:

Petitioner George H. Wharton appeals the district court's denial of habeas relief in this capital case. Police officers arrested Petitioner after finding the body of his live-in girlfriend stuffed in a barrel in their kitchen. Petitioner admitted killing her but claimed at trial, in California state court, that he had been provoked into the killing and, therefore, was guilty only of second-degree murder. The jury disagreed and convicted him of first-degree murder. In this habeas proceeding, Petitioner asserts that his due process rights were violated when jurors saw him shackled and that his trial lawyer provided ineffective assistance. We affirm the district court's denial of those claims. The district court correctly held that, although some jurors occasionally saw Petitioner in shackles while being transported through the halls of the courthouse, those sporadic sightings outside the courtroom did not rise to the level of a constitutional violation. The district court also correctly held that Petitioner's trial lawyer chose a constitutionally permissible guilt-phase strategy of forgoing certain defenses for fear of opening the door to the jury's learning about Petitioner's significant criminal history, which included a prior murder and rape.

At the penalty phase, the prosecutor introduced evidence of Petitioner's earlier convictions for both murder and rape, and

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Petitioner introduced evidence of mental illness and of his physically abusive and deprived childhood. The same jury deliberated over the course of three days but ultimately returned a verdict of death, which the trial judge imposed. Petitioner now claims that his lawyer provided ineffective assistance in investigating and presenting the mitigation evidence. We affirm in part and vacate in part the district court's denial of Petitioner's ineffective assistance of counsel claim at the penalty phase. The district court held that no prejudice resulted from the failure of Petitioner's trial lawyer to call Petitioner's half-brother, Gerald Crawford, as a witness. Accordingly, the court declined to decide--or make the necessary factual findings related to--Petitioner's claim that his trial lawyer was ineffective in investigating what Crawford knew. We hold that, if Crawford was available to testify or otherwise provide evidence, and trial counsel was ineffective in his investigation, then Petitioner has demonstrated prejudice. We vacate that portion of the district court's judgment and remand for further proceedings, including factual findings related to the investigation of Crawford.

FACTUAL AND PROCEDURAL HISTORY

The California Supreme Court, whose factual findings are " entitled to a presumption of correctness," Rhoades v. Henry, 598 F.3d 495, 500 (9th Cir. 2010) (internal quotation marks omitted), described the evidence at the guilt phase as follows:

[On February 27, 1986, police officers discovered Linda Smith's body in a barrel in the kitchen of the apartment shared by Smith and Petitioner.]
. . . A search of the apartment uncovered, among other things, several empty prescription drug bottles and a note pad with a note that began " Dear Dr. Hamilton." While most of the bottles bore the victim's name, one bore [Petitioner's] name. In addition, police found a toolbox in the garage.
An autopsy revealed the victim had been struck three times on the head with a blunt instrument, probably a hammer. The victim received one direct blow and two glancing blows. Any of the blows would have caused instant unconsciousness. Although the victim had no other broken bones or lacerations, the presence or absence of defensive wounds such as bruises could not be determined because of the advanced state of decomposition of the body. Dr. Failing, the pathologist in charge of the autopsy, testified that in his opinion, the victim died of asphyxia rather than the cerebral contusions. Because of the condition of the body, Dr. Failing could not pinpoint the time of death but opined it was probably 10 to 14 days earlier.
[Police arrested Petitioner.]
[Petitioner] waived his Miranda rights and agreed to speak with Officer Tonello. [Petitioner] stated that he lived with Smith and that he spent the night of February 26th with her in their home. He affirmed that Smith was alive that night. He eventually admitted, however, that they argued and that he killed her. He explained that they had been drinking heavily that night and began to argue.1 She threw a book at him and he hit her twice in the head. She may have hit her head on a table, but he was not sure. He admitted he was mentally aware he was hitting her but stated that he was in a rage. He eventually realized she was dead. He began writing a letter to his psychotherapist, Dr. Hamilton, and then took several pills and lay down beside Smith. He tried to kill himself by inhaling gas

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from the oven. He did not know what he intended to do with the body, moving it from room to room. He also stated he lit a fire in the fireplace and brought Smith's body into the room to keep her " warm." At one point, he held Smith's body to his own. He eventually wrapped Smith's body in blankets and plastic bags and placed it in the barrel, where it was found by police.
1 There was evidence that both [Petitioner] and the victim regularly abused alcohol, marijuana, and cocaine.
Leighton Smith, the victim's ex-husband, was sorting through the victim's belongings after [Petitioner] was taken into custody. Although police had already searched the house, Leighton Smith contacted police when he discovered a hammer lying under a day bed. He also noticed many of the victim's possessions were missing, including coins, furs, jewelry, china, a television, a camera, a microwave oven, and a stereo.
There was evidence that, in order to buy cocaine, [Petitioner] sold the victim's property after, and possibly before, her death. He bartered away her car to Albert and Americo Perez for a quarter gram of cocaine plus a promise of more cocaine in the future. The Perez brothers sold the car in Mexico but agreed to retrieve it and testify against [Petitioner] in exchange for a grant of immunity. Sandra Barney testified that she helped [Petitioner] cash some of the victim's checks; on at least two occasions, she saw him write the victim's name on a check. She also testified that they used the money from the checks to buy drugs and alcohol and that [Petitioner] tried to sell the victim's jewelry. Jackie Dennis testified that [Petitioner] gave her some women's clothes and jewelry to sell and asked if she knew anyone who wanted to buy some dishes.
In addition, [Petitioner's] two psychotherapists testified and related various inculpatory statements [Petitioner] made in therapy. [Petitioner] did not present an affirmative defense.

People v. Wharton, 53 Cal.3d 522, 280 Cal.Rptr. 631, 809 P.2d 290, 299-301 (Cal. 1991) (citations omitted).

In light of the overwhelming evidence that Petitioner killed Smith, there was little hope of an acquittal on all charges. Petitioner's trial lawyer, William Duval, sought to convince the jury that Petitioner was guilty of only second-degree murder or manslaughter. Duval argued that Petitioner lacked the malice required for a first-degree murder conviction because Petitioner's actions were the result of provocation. See People v. Williams, 71 Cal.2d 614, 79 Cal.Rptr. 65, 456 P.2d 633, 638 (Cal. 1969) (" Evidence of adequate provocation overcomes the presumption of malice." ). The jury was unpersuaded and returned a verdict of guilt on the first-degree murder charge after deliberating for little more than a day.

The same jury then heard evidence in a separate penalty phase. The jury had not learned during the guilt phase about Petitioner's 1975 crimes of murder and forcible rape. During the penalty phase, those crimes were the focus of the prosecutor's case in aggravation. The California Supreme Court described the penalty-phase evidence:

The prosecution's case at the penalty phase of the trial consisted of evidence of [Petitioner's] prior felony convictions. In June 1975, 61-year-old Jane B. answered her doorbell and found [Petitioner], a neighbor, on her doorstep. He indicated he had been fighting with his wife and asked to use Jane B.'s telephone. She told him it was too late to let him in but made up a package of cosmetics to give to [Petitioner] for his

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wife, thinking it would cheer her up. When she opened the door to hand the package to him, [Petitioner] forced his way in and, armed with a butcher knife, forcibly raped her. During the crime, [Petitioner] held the knife to her throat, told her he would kill her if she screamed or made any noise, and made several small, shallow cuts on her neck. [Petitioner] told her that if she reported the crime, he would return and kill her. He also threatened to firebomb her house. After [Petitioner] left, Jane B. discovered some money, a small radio, and a camera were missing. She testified at [Petitioner's] subsequent rape trial that the ordeal was extremely painful and that it left her vaginal area bloody.
After his arrest for rape, [Petitioner] admitted he raped and robbed Jane B. but denied making the cuts on her neck. During his interrogation, [Petitioner] also admitted killing Robert Pierce after the latter solicited a homosexual act from him. [Petitioner] said he kicked Pierce and continued to kick him after he fell down. Before leaving the scene, he took Pierce's watch. The prosecution's evidence showed that in February 1975, Santa Barbara police found the body of Pierce, a university professor, lying in a doorway. Although they initially believed the death was accidental, an autopsy revealed facial and other injuries inconsistent with the accidental death theory. [Petitioner] eventually pleaded guilty to second degree murder and rape.
In addition to this evidence, the prosecution introduced evidence of [Petitioner's] prior convictions for burglary and receiving stolen property.
In the defense portion of the penalty phase, [Petitioner] called Dr. Judith Hamilton to the stand. She testified that [Petitioner] voluntarily sought treatment from her because of headaches, restlessness, and feelings of nervousness around people. He also had a fear of hurting his girlfriend, victim Linda Smith. [Petitioner] reported he had abused several drugs in the past, including cocaine, amphetamines, marijuana, and alcohol. In addition, he told her that he hated his father and grandfather, that his grandfather beat him with branches and scraps of wood, and that he was sexually abused by his mother's friend when he was 11 years old. [Petitioner] also revealed he had attempted suicide on three different occasions, the most recent being a month earlier. Dr. Hamilton diagnosed [Petitioner] as suffering from atypical impulse control disorder and multiple drug or substance abuse. She could not determine on the basis of her sessions with [Petitioner] whether she could rule out paranoid schizophrenia and organic personality disorder as possible diagnoses.
Claudia Ann Wharton, [Petitioner's] sister, described his childhood. The family, including [Petitioner], moved to his maternal grandmother's farm in Hammond, Louisiana, after [Petitioner's] parents separated. His mother worked as a domestic and received welfare benefits. David Lee, [Petitioner's] step-grandfather, was a six-foot, five-inch, three-hundred-pound man known as " Big Daddy" and was the father figure on the farm. Lee did not like [Petitioner]. Lee would beat [Petitioner] with a leather strap or an oak branch whenever [Petitioner] displeased him. [Petitioner] carried a heavier share of the chores than did the other children. [Petitioner's] mother often quarreled with Lee; when he became angry, Lee would sometimes turn off the family's water or refuse them wood to burn in the winter. [Petitioner's] mother had a drinking problem during [Petitioner's]

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childhood years. When [Petitioner] was 16, he left home and entered the Job Corps.
Claudia also testified that [Petitioner] was a changed man after he was released from his first term in prison. He was anxious in crowds and had headaches. She stated that [Petitioner] told her he did not kill Pierce or rape Jane B. He also told her his wife had a miscarriage the night Jane B. was raped.
Pearl Wharton, [Petitioner's] mother, testified that she left home at age 11 when Lee tried to molest her. She married [Petitioner's] father, George Wharton, when she was 22 years old and their marriage lasted about 30 years [sic: 13 years]. [Petitioner's] father drank and occasionally physically abused her. After the family moved back to her mother's farm, Lee mistreated [Petitioner], beating him with oak switches. On one occasion, she argued with Lee after he whipped one of her daughters with an extension cord. When Lee struck [Petitioner's] mother with a broomstick, [Petitioner] picked up a stick to defend her. Lee produced a gun and [Petitioner] ran away.
Linda Wharton, another of [Petitioner's] sisters, essentially corroborated Claudia and Pearl Wharton's description of [Petitioner's] childhood years. She speculated that Lee punished [Petitioner] because he looked like his father, a man Lee disliked. She also recalled that on one occasion, when [Petitioner] was 12 or 13 years old, Lee placed him in a burlap sack, dangled it from a tree branch with a rope, and then set a smoldering, smoky fire under the sack. [Petitioner] was left in the sack for hours.
Dr. Donald Patterson, a psychiatrist, examined [Petitioner] at the request of the defense. He concluded [Petitioner] suffered from a personality disorder, a substance abuse disorder, and possibly paranoid schizophrenia. In addition, he noted that at the time of the crime, [Petitioner] was under severe stress which may have led to a brief reactive psychosis, i.e., a brief interruption of contact with reality because of some significant event or stress. This would explain [Petitioner's] unusual behavior following the slaying, that is, moving the victim's body from room to room and building a fire to keep her " warm." Patterson stated that although " atypical impulse disorder" (Dr. Hamilton's diagnosis) was a possibility, he was less comfortable with that diagnosis.
Dr. Patterson concluded by stating that, in his opinion, [Petitioner] was under the influence of extreme mental or emotional disturbance at the time he committed the crime because of the dysfunctional relationship he had with the victim. In addition, Patterson believed that [Petitioner] reasonably believed there was moral justification for his conduct and that he acted under extreme duress or under the substantial domination of another person. He reached these latter conclusions in light of evidence showing [Petitioner] suffered auditory hallucinations and may have killed in response to " voices" he heard inside his head.

Wharton, 809 P.2d at 301-02.

On the third day of deliberations, the jury returned its verdict of death. The California Supreme Court affirmed the conviction and sentence. Id. at 299. The United States Supreme Court denied certiorari. Wharton v. ...


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