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Kirkpatrick v. Chappell

United States Court of Appeals, Ninth Circuit

October 10, 2017

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

          Argued and Submitted February 17, 2017 Pasadena, California

         Appeal from the United States District Court for the Central District of California William D. Keller, Senior District Judge, Presiding

         COUNSEL

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

          Robert C. Schneider (argued), A. Scott Hayward, and Jaime L. Fuster, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

          Before: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus / Death Penalty

         The panel vacated the district court's order dismissing for lack of exhaustion claims in William Kirkpatrick, Jr's habeas corpus petition challenging his murder conviction and death sentence, and remanded to the district court so that it may adjudicate those claims on the merits.

         The district court dismissed the claims as unexhausted on the ground that, although Kirkpatrick presented them to the California Supreme Court, he subsequently waived them by means of a handwritten, pro se filing. The California Supreme Court ruled that the handwritten form constituted a valid waiver despite the conclusion of the referee it appointed that there was not enough evidence that the waiver was made knowingly, voluntarily, and intelligently. The district court agreed with the California Supreme Court.

         The panel held that there is insufficient evidence in the record to support a finding that Kirkpatrick's handwritten form constituted a valid waiver of his right to proceed and that the State of California failed to carry its burden to the contrary. Consequently, the panel held that the district court erred in dismissing the claims as unexhausted.

         Dissenting, Judge Kozinski wrote that the majority failed to defer to the California Supreme Court whose findings are supported by more than enough evidence, and that under de novo review Kirkpatrick would fare no better, but that none of this matters because California has no functional death penalty.

          OPINION

          REINHARDT, Circuit Judge

         William Kirkpatrick, Jr., was convicted of murder and sentenced to death in California more than thirty years ago. His case has followed a long and complicated procedural path to this court. He now appeals the district court's dismissal of certain claims for relief in his federal habeas corpus petition. He contends that the district court was wrong to dismiss those claims as unexhausted and should instead have adjudicated them on the merits - something that has not yet happened in any court, state or federal.

         The district court dismissed the claims as unexhausted on the ground that, although Kirkpatrick presented them to the California Supreme Court, he subsequently waived them by means of a handwritten, pro se filing. The California Supreme Court ruled that the handwritten form constituted a valid waiver despite the conclusion of the referee it appointed that there was not enough evidence that the waiver was made knowingly, voluntarily, and intelligently, as the Constitution requires. The district court agreed with the California Supreme Court.

         We conclude that there is insufficient evidence in the record to support a finding that Kirkpatrick's handwritten form constituted a valid waiver of his right to proceed and that the State failed to carry its burden to the contrary. Consequently, we hold that the district court erred in dismissing the claims as unexhausted. We remand the case to the district court so that it may adjudicate the claims in question on the merits.[1]

         I. BACKGROUND

         A.

         In September 1983, two men were murdered at a Taco Bell in Burbank, California. Both victims, who worked at the restaurant, were shot in the head point blank. Police soon arrested and charged Kirkpatrick with the double murder. He was 23 years old at the time.

         In the three decades in which Kirkpatrick's case has been pending in various courts, he has repeatedly tried to represent himself or to interfere with his defense when represented by counsel and has repeatedly expressed dissatisfaction with and distrust of his lawyers. Shortly after the State brought charges against him, the trial court appointed two lawyers, two psychiatrists, and an investigator to assist in Kirkpatrick's defense. Kirkpatrick, however, requested that he be appointed as co-counsel for purposes of the trial.[2] He also insisted on proceeding to trial quickly - even after another possible perpetrator, Eddie Salazar, was arrested in connection with the same crimes. A few weeks after voir dire, Kirkpatrick sent a letter to the court criticizing his attorneys' performance. The lawyers explained that they were having problems with their client, whose desires clashed with their legal advice.

         The State's theory of the case at trial was that Kirkpatrick stole a .22 caliber gun from a Union 76 gas station, and used it to murder the Taco Bell employees several days later, with the help of Salazar, his co-conspirator. The prosecution also said that Kirkpatrick told acquaintances about the crime after it had been committed.

         To support this theory, the prosecution called 42 witnesses. Several testified that they saw Kirkpatrick with a gun that looked like the murder weapon in the days before the shooting. One witness testified that he saw Kirkpatrick and Salazar together shortly before the shootings, and another witness testified that he saw the two men, with a gun, immediately afterwards. The prosecution introduced evidence of bullets found in Kirkpatrick's car, and car stereo equipment that had allegedly been stolen from the Union 76 gas station. The prosecution also entered the .22 caliber gun - the supposed murder weapon - into evidence, although the firearms examiner could not be sure that that particular weapon had fired the bullets collected at the crime scene.

         Kirkpatrick testified in his own defense, despite counsel's advice that it was not in his best interest to do so. He discussed his location the night of the crimes, and said that he had intended to visit a friend in Whittier but was not able to do so because his car battery died. He said that he purchased a new car battery in the early morning following the time at which the shootings occurred and then slept in a motel. The defense's three other witnesses corroborated his whereabouts at several points in time, but did not provide any concrete alibi. Kirkpatrick's lawyer conceded that whoever committed the crimes committed first degree murder, and apologetically told the jury that lawyers "deal with . . . facts as best they can."

         The jury deliberated for five days and, during their deliberation, asked for a read-back of the testimony of four witnesses. The jury found Kirkpatrick guilty on all counts and found true all death-qualifying special circumstances. During the jury's deliberations, the court received another letter from Kirkpatrick complaining about his lawyers; he said that he no longer considered them his attorneys.

         B.

         Kirkpatrick asked to represent himself at the penalty phase of the trial - the proceeding at which the jury would decide whether to sentence him to life with the possibility of parole, or to death. The court denied Kirkpatrick's request on the grounds that his request was untimely and that there was no overwhelming reason for the court in its discretion to allow Kirkpatrick to proceed pro se. The court nevertheless granted him co-counsel status when he threatened not to appear unless he could proceed pro se. The court asked about his letter and complaints against his attorneys, and Kirkpatrick said that at some points the lawyers "went completely against everything [he] requested, " including requests to subpoena witnesses that were ignored. His lawyers did not dispute these claims.

         To support a sentence of death, the prosecution presented evidence of Kirkpatrick's troubling past actions as aggravating circumstances. The defense's mitigation presentation took place the same day, and consisted solely of Kirkpatrick's brief testimony, in which he simply reasserted his innocence and said that he was from New York and aspired to be a writer.

         Beyond that, the defense essentially prepared no case for mitigation at the penalty phase. The lawyer and investigator spoke to only one person, Kirkpatrick's mother, in preparation for their presentation of mitigating evidence. They believed that she would be "very, very helpful to the defense, " but she was never called to testify. This may have been at Kirkpatrick's insistence, as he instructed his lawyers not to interview or present any family members as witnesses. Kirkpatrick also stated that he did not want any of his family members brought to court or even contacted at all, and the investigator did not interview any of Kirkpatrick's other family members or friends. Although his lawyers stated that Kirkpatrick should be evaluated psychiatrically, Kirkpatrick said that he did not want to meet with a psychiatrist, and the court "accept[ed] Mr. Kirkpatrick's position on that." In any event, no evidence of Kirkpatrick's difficult upbringing, his disadvantaged social background, his history of mental health problems and drug abuse, or his relationships with friends and family was ever presented to the court or even investigated by the defense team.

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

         The prosecution replied that Kirkpatrick was "an anarchist, " and that "[h]is contribution to society has been pain, suffering, and misery." It said that "the circumstances in aggravation far outweigh any circumstances in mitigation, if any" and that the jury could impose a sentence of life without parole, rather than a sentence of death, only if it ignored the aggravating factors.

         Two days after the jury began its penalty selection deliberations, it returned a death verdict for both murders. The court proceeded to hold a sentencing hearing at which it reviewed the aggravating and mitigating circumstances and found that the only mitigating factors were the defendant's lack of prior felony convictions and his young age. It sentenced Kirkpatrick to death.[3]

         C.

         Kirkpatrick filed a direct appeal in the California Supreme Court and a state habeas petition claiming penalty phase ineffective assistance of counsel. The California Supreme Court affirmed Kirkpatrick's conviction in a lengthy opinion. People v. Kirkpatrick, 874 P.2d 248 (1994). It also summarily denied the habeas petition, although two of the justices voted to grant relief for penalty phase ineffective assistance.

         Kirkpatrick later filed a federal habeas petition in the Central District of California raising numerous claims for relief. This time, he was represented by Federal Public Defenders rather than the lawyers appointed by the state court. The district court found that a number of the claims in the federal petition had not been exhausted in state court. Accordingly, it stayed consideration of the petition to permit Kirkpatrick to return to state court. Kirkpatrick then filed a petition in the ...


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