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Avena v. Chappell

United States Court of Appeals, Ninth Circuit

August 8, 2019

Carlos J. Avena, Petitioner-Appellant,
Kevin Chappell, Warden, Respondent-Appellee.

          Argued and Submitted October 17, 2018 Submission Vacated November 5, 2018 Resubmitted August 8, 2019 San Francisco, California

          Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding D.C. No. 2:96-cv-08034-GHK

          Sean K. Kennedy (argued), Los Angeles, California; Michael J. Lightfoot, Of Counsel; Mark R. Krozdowski, Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

          Michael Katz (argued) and A. Scott Hayward, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

          Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber and Milan D. Smith, Jr., Circuit Judges.

         SUMMARY [*]

         Habeas Corpus / Death Penalty

         The panel reversed the district court's judgment denying habeas relief on a certified claim of ineffective assistance of counsel at the penalty phase, in a case in which Carlos Avena was convicted and sentenced to death by a California jury on two counts of first-degree murder for killings he committed during a carjacking.

         Because the California Supreme Court did not address whether Avena's counsel performed deficiently at the penalty phase, the panel reviewed counsel's performance de novo. The panel held that Avena's counsel rendered deficient performance by failing adequately to investigate Avena's good character and social history, and had no reasoned or tactical excuse for doing so. The panel held that Avena's counsel also rendered deficient performance by not investigating Avena's claim of self-defense in a jail homicide to counter the State's use of it as aggravation evidence, and had no reasonable or tactical excuse for not doing so.

         Because the California Supreme Court concluded that Avena was not prejudiced by his counsel's performance, the panel reviewed the California Supreme Court's decision regarding prejudice under AEDPA's deferential standard. The panel held that the California Supreme Court's conclusion that Avena failed to show prejudice was objectively unreasonable because the complete lack of mitigation evidence during the penalty phase all but ensured Avena's fate, as the jury was given no reason to consider whether he deserved anything less than death. The panel wrote that it does not suggest that a state court's conclusion of no prejudice is always unreasonable when defense counsel does not present any mitigation evidence, but that the mitigation evidence here was humanizing, painting Avena's crimes in a different light and providing an explanation for the jail homicide. When weighing the totality of this mitigation evidence against the aggravation evidence, the panel concluded there remains a reasonable probability that at least one juror would have determined the circumstances did not warrant death, and that in the unusual circumstances of this case, no fairminded jurist could disagree.

         The panel remanded for the district court to grant the writ unless the state court resentences Avena within a reasonable time to be determined by the district court.



         Carlos Avena was convicted and sentenced to death by a California jury on two counts of first-degree murder for killings he committed during a carjacking in 1980. The district court denied his habeas corpus petition raising claims of ineffective assistance of counsel at the guilt and penalty phases of his trial, but the court granted a certificate of appealability on the penalty-phase claim. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253.

         Because the California Supreme Court unreasonably applied clearly established federal law in denying Avena's claim for ineffective assistance of counsel at the penalty phase, we reverse the judgment of the district court.



         Avena was convicted of two counts of first-degree murder and sentenced to the death penalty. The facts of his crimes are detailed in the California Supreme Court's opinion denying him habeas relief. See In re Avena, 909 P.2d 1017, 1022-23 (Cal. 1996).

         In September 1980, Avena and brothers Victor and Arturo Padua were driving on the streets of Los Angeles, California, after drinking beer earlier that night. Avena sat in the backseat with a .22-caliber rifle. When stopped at an intersection, a car pulled up next to theirs and occupants in each car exchanged insults. One person in the other car threw a beer bottle, hitting the car door closest to Avena. Avena shot at the other car a few times in retaliation. As the car drove away, Avena and the Padua brothers followed it and eventually crashed their car into the rear end of the other car, leaving their own car inoperable.

         After the crash, Avena and the Padua brothers approached a nearby Chevrolet Camaro occupied by Manual Solis and Miquel Vasquez. They demanded that the driver hand over his money and the car keys. Arturo Padua struck the driver with a piece of wood. Avena shot the passenger and then shot the driver. Both men died from their injuries.

         Now driving the Camaro, Avena and the Padua brothers went to Avena's house to get more ammunition. Afterward, they drove to an empty parking lot and set the Camaro on fire. The three men, now on foot, made their way to a nearby intersection, which was next to a freeway off-ramp. After some time, a woman pulled up to the stop light at the intersection in her car. Avena and Arturo Padua approached the car and attempted to open the doors. Avena shot at the car, but the woman escaped by driving through the red light.

         Two police officers in an unmarked police car were driving on the freeway off-ramp when they saw the car drive through the red light and saw Avena standing nearby with his rifle. Avena shot at the officers, and they fired back in response. Avena and Arturo Padua then fled on foot. Victor Padua hid in the bushes and was discovered by police later that evening. After first providing a false story to the police, Victor eventually revealed his connection to Avena and Arturo Padua. On September 15, 1980, Avena was arrested and charged with the carjacking homicides.


         Avena's trial began in November 1981. The evidence implicating him was overwhelming. Victor Padua testified against him. The police introduced a secretly recorded interrogation tape of Avena that largely tracked Victor's account. A law enforcement expert further confirmed Avena's involvement that night when he testified about the type of firearm used in the shooting and the shell casings recovered at the scene.

         Avena's trial counsel, Marvin Part, hardly mounted a defense. Part waived Avena's right to appear in civilian clothes during the trial and his own right to make an opening statement. He presented no defense evidence, called no defense witnesses, and eventually conceded Avena's guilt. During his closing argument, Part remarked, "[t]he tape is right in front of you, literally confessing to shooting down a couple of people . . . cold-blooded on the streets in Los Angeles County." After deliberating for a day and a half, the jury convicted Avena of nearly all charges against him-two counts of first-degree murder, two counts of assault with a deadly weapon, one count of intent to commit murder, one count of robbery, and one count of attempted robbery.


         At the penalty phase of Avena's trial, the prosecution argued vociferously that Avena deserved the death penalty. They characterized him as a "deadly killing machine" that had "no conscience." They likened him to an animal-Avena could not "live outside the cage" with the general public but "liv[ing] inside the cage amongst the other tigers" also would not stop him from killing again. Indeed, in the prosecution's view, Avena was worse than an animal, which may "only kill[] when [it] has to," because Avena "doesn't kill to live, he kills for things like a ride home to get bullets."

         To support this characterization of Avena, the prosecution introduced aggravating evidence of other violent crimes in which Avena was implicated. A former member of a rival gang testified that in January 1978, he was standing on a street corner with three friends when a man jumped out of a car and fired two shots at them from a shotgun. A detective, who investigated the shooting for the Los Angeles Police Department, then testified that he arrested Avena in connection with the incident, explaining that Avena admitted to the shooting.

         Two deputies testified that, while Avena was in jail awaiting trial for the carjacking homicides, he was implicated in the homicide of another inmate. One deputy testified that he saw Avena stab the inmate three or four times while the victim was lying on the floor. The other deputy, who later apprehended Avena, testified that Avena was "wearing a towel wrapped around his midsection, a known protective tactic used by jail inmates who anticipate participating in a knife fight." Id. at 1040-41. The inmate eventually died as a result of his injuries.

         Finally, a third deputy testified that Avena had once assaulted him while he was processing inmates who had just returned from a medical visit. According to his testimony, Avena "took a swing" at the deputy's face with "clenched hands" and a physical altercation ensued. During the struggle, Avena attempted to bite him before the deputy detained him.

         Over and over, with this strong aggravating evidence and passionate argument, the prosecution painted a picture of Avena as something less than a "human being"-a "killing machine" with a "malignant heart, if he has a heart at all," a wild animal that could not be caged, and a "cancer" that must be "remove[d] [] before it kills you."

         Avena's trial counsel left this portrayal of Avena entirely unchecked and unrebutted. Part presented no mitigation evidence and called no witnesses to testify on Avena's behalf. He presented nothing about Avena's childhood, good character, social history, or extensive drug use. He called only two witnesses to testify about the homicide in the jail, neither of whom was present during the incident.[1]

         Instead, Part commended the jury on returning the "correct verdict." Part explained that he "couldn't bring [him]self to the level to tell [the jurors] that the defendant didn't kill those people that night." There was "no question he did it." And "[t]here [wa]s no way in the world" the jurors could like Avena or have sympathy for him. Avena was "a bad person. There's no question about that."

         Part's only argument that Avena should be spared from the death penalty was that, "in [his] opinion," Avena's crimes were not "so heinous, . . . so terrible, . . . so bad, that the public vengeance cries out for" the death penalty. In Part's view, only serial killers should get the death penalty. Someone like Avena, who has a "violent nature," but whose crimes had no "professionalism" or "sophistication," should not. He concluded by noting that when "people are young they do rash things," and he ...

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