and Submitted March 28, 2019 San Francisco, California
from the United States District Court for the Central
District of California, No. 2:06-cv-04532-RGK R. Gary
Klausner, District Judge, Presiding
from the United States District Court for the Southern
District of California, No. 3:06-cv-01343-BEN-KSC Roger T.
Benitez, District Judge, Presiding
Michael D. Weinstein (argued) and Mark Yim, Deputy Federal
Public Defenders; Hilary Potashner, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Petitioner-Appellant.
Featherman Fraser (argued), Deputy Attorney General; Holly D.
Wilkens, Supervising Deputy Attorney General; Julie L.
Garland, Senior Assistant Attorney General; Gerald A. Engler,
Chief Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, San Diego,
California; for Respondent-Appellee.
Before: Johnnie B. Rawlinson, Richard R. Clifton, and Jay S.
Bybee, Circuit Judges.
Corpus / Death Penalty
appeals arising from Dean Phillip Carter's habeas corpus
petitions challenging his convictions and death sentences in
separate cases in Los Angeles and San Diego Counties, the
panel (1) affirmed district court judgments in the Central
and Southern Districts of California denying his petitions;
(2) granted, as to one claim in the Central District,
Carter's supplemental motion to expand the certificate of
appealability; and (3) otherwise denied the supplemental
motion to expand the certificate of appealability.
Central District certified two claims for review: (1) that an
irreconcilable conflict between Carter and trial counsel
resulted in a denial of his Sixth Amendment rights, and (2)
that trial counsel rendered ineffective assistance because
they refused to allow Carter to testify in his own defense.
The panel held that even if Carter were able to demonstrate a
complete breakdown in communication or prove that an
irreconcilable conflict with trial counsel existed under this
circuit's precedent, his irreconcilable-conflict claim
would fail because the U.S. Supreme Court has never held that
an irreconcilable conflict with one's attorney
constitutes a per se denial of the right to effective
counsel. The panel explained that this proves fatal to
Carter's claim because AEDPA conditions habeas relief on
a determination that the state-court decision unreasonably
applied "clearly established Federal law" as
pronounced by the U.S. Supreme Court.
The panel held that the California Supreme Court reasonably
determined that counsel did not perform deficiently by
refusing to let Carter testify, and that even if counsel
performed deficiently by refusing to do so, the California
Supreme Court's determination that Carter cannot show
prejudice was not an unreasonable application of law.
Southern District certified two claims for review: (1) that
Carter's trial counsel rendered ineffective assistance at
the penalty phase, and (2) that Carter was deprived of his
right to the competent assistance of a psychiatric expert.
The panel held that Carter failed to establish that the
California Supreme Court was unreasonable in denying relief
on his contentions that counsel performed deficiently (a) by
focusing on the positive aspects of Carter's career and
family life as a result, rather than giving greater emphasis
to his traumatic childhood; and (b) by failing to conduct an
adequate investigation into Carter's mental health,
including the possibility that he suffered from fetal alcohol
The panel held that Carter failed to establish that Ake
v. Oklahoma, 470 U.S. 68 (1985), or any other U.S.
Supreme Court decision would cause jurists of reason to
disagree with the reasonable arguments in support of the
California Supreme Court's denial of his claim that he
was deprived of the right to competent assistance of a
psychiatric expert at trial. The panel wrote that, as Carter
conceded, the U.S. Supreme Court has never interpreted
Ake to guarantee a due process right to effective
expert assistance at trial.
panel issued a certificate of appealability on one claim, not
certified by the Central District, alleging ineffective
assistance of counsel at the penalty phase. The panel
affirmed the denial of relief on that claim because the
California Supreme Court's determination that counsel
satisfied the deferential standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), is
not contrary to or an unreasonable application of federal
law. The panel wrote that the California Supreme Court may
reasonably have concluded that the investigation supporting
counsel's decision not to introduce more mitigating
evidence was reasonable, and that even if Carter's
defense team performed deficiently, the California Supreme
Court could reasonably have concluded that Carter was not
prejudiced by their performance.
panel denied a certificate of appealability as to the rest of
the claims not certified by the Southern and Central District
separate proceedings in Los Angeles and San Diego, Dean
Phillip Carter (Carter) was convicted of murder, rape,
robbery, and burglary and sentenced to death. Carter filed
petitions for writs of habeas corpus in the United States
District Courts for the Central District of California and
for the Southern District of California. The district courts
denied Carter's petitions.
appeal No. 13-99003, we affirm the judgment of the Central
District and deny Carter's motion to expand the
certificate of appealability (COA) as to all claims except
claim 6, regarding ineffective assistance of counsel at the
appeal No. 13-99007, we affirm the judgment of the Southern
District and deny Carter's motion to expand the COA.
stood trial in Los Angeles County and San Diego County for
charges stemming from a crime spree throughout California in
Spring 1984. In the Los Angeles proceedings, Carter was
accused of the rape and murder of Bonnie Guthrie and the
burglary of her residence; and of the murder of Susan Knoll,
rape and murder of Jillette Mills, and the burglary of their
shared residence. In San Diego County, Carter was accused of
the murder and robbery of Janette Cullins and the burglary of
her residence; and of the rape, forcible oral copulation, and
robbery of B.S. and the burglary of her residence. In both
the Los Angeles and San Diego proceedings, prosecutors also
introduced evidence of Carter's prior convictions for
rape, robbery, and assault of J.S. in Ventura County, and of
his connection to the murder of Tok Kim in Alameda County.
The crimes occurred over four California counties over a
period of about three weeks. We describe them briefly and
March 25, 1984, Carter broke into the San Diego home of B.S.
wielding a knife and demanded money. After taking B.S.'s
cash, he raped her, hog-tied her, and stole her car.
March 27, Carter raped J.S. at knifepoint in her Ventura
County apartment, cut her face, strangled her twice to the
point at which she lost consciousness, and stole cash from
April 1, Carter met Tok Kim at a bar in Lafayette,
California, and offered to help her with car trouble. Over
the next two days, a service station manager named David
Hogan observed Carter and Kim at his station together. Hogan
observed that Carter was wearing sunglasses and a black
"Members Only" style jacket. On the night of April
10, Kim's neighbor heard Kim arguing in her Oakland
apartment with an unidentified man who was not her boyfriend.
Kim's co-workers notified her apartment manager after Kim
did not appear for work on two consecutive days. On April 13,
the apartment manager found Kim's body on her bedroom
floor. The pathologist who performed the autopsy could not
determine the cause of death because of the body's
advanced stage of decomposition but testified that a curtain
tie found beneath her neck could have been used to strangle
April 11, Culver City, California resident Susan Knoll went
absent from her job at a bank. Knoll's co-worker took a
call from an unidentified man who informed her that Knoll had
been in a traffic accident and was being treated for minor
injuries at a hospital. The same day, after Knoll's
roommate Jillette Mills failed to respond to her
brother's attempts to contact her, the brother and a
friend searched for Mills at her apartment, place of
employment, and college but were unable to find Mills or her
car. The two men then climbed a fence to enter Mills's
and Knoll's unlocked apartment and found the bodies of
both women stacked in the closet.
discovered Kim's vehicle outside of Mills's and
Knoll's apartment. Inside the vehicle was a pair of
sunglasses, which Hogan identified as matching a pair he
observed Carter wearing at his station while with Kim.
Mills's white Datsun was missing. Inside the apartment,
investigators retrieved a palm print matching Carter's
from the bathroom sink. An autopsy determined that Knoll died
of manual strangulation and Mills died of ligature
strangulation. Both women also suffered injuries consistent
with having struggled against an assailant and had seminal
fluid on their genital areas. Mills additionally suffered
injuries to her genital area consistent with traumatic sexual
April 11, the manager of Bonnie Guthrie's apartment
building in Los Angeles entered Guthrie's apartment with
a repairman. Guthrie was Knoll's best friend. The manager
observed Guthrie lying on her bedroom floor and remarked to
the repairman that she was sleeping. The next day, the
manager noticed Guthrie's vehicle in the garage and
wondered why she had not gone to work. He entered the
apartment, observed Guthrie lying in the same position, and
notified police. An autopsy determined that Guthrie died of
ligature strangulation and that she had suffered injuries to
her genital area consistent with traumatic sexual assault.
Two days after the discovery of Guthrie's body, a witness
found Guthrie's wallet in a San Diego shipyard,
approximately fifty feet from a white Datsun matching the
description of Mills's missing vehicle.
April 12, Carter visited the San Diego apartment of Janette
Cullins and her roommate Cheri Phinney. Carter and Cullins
knew one another socially, and had met for drinks and dinner
with other friends on two occasions in February and March
1984. On March 24, Carter had attempted to contact Cullins
through her friend Cathleen Tiner. When Tiner told Cullins
that Carter had called for her, Cullins became upset. Cullins
had also told her former roommate, Nancy McEachern, that if
Carter called for her she did not want to speak with him.
When Carter visited Cullins on April 12, Cullins asked
Phinney to come through the living room so that Carter would
be aware that someone else was in the apartment. Carter left
the apartment after an hour.
evening, Cullins and Tiner attended the symphony together.
Cullins informed Tiner that Carter was back in town. At 11:00
p.m., Cullins left Tiner's apartment and was never seen
alive again. Between 11:15 and 11:30 p.m., Cullins's
neighbor observed a white Datsun matching the description of
Mills's missing vehicle outside of Cullins's
apartment. The neighbor observed the vehicle drive away at
11:30, nearly hitting another vehicle while making a U-turn
and running through a stop sign.
April 13, Phinney and McEachern each attempted to contact
Cullins without success. At midday, McEachern drove to
Cullins's apartment and encountered Carter, who was
driving a white Datsun. Carter asked McEachern if Cullins was
home. That evening, Carter unexpectedly visited Tiner at her
home and commented that Cullins had "stood [him]
up" that day. Tiner then unsuccessfully attempted to
following day, Phinney and McEachern searched Cullins's
apartment and found her partially clothed body in her bedroom
closet. A police investigation found damage to the front door
consistent with a forced entry. An autopsy determined that
Cullins died of ligature strangulation and that she had
sustained a wound consistent with the use of a sharp knife
either while she was dying or after she had died.
same day Cullins's body was discovered, a pedestrian
found a wallet containing Cullins's driver's license
and credit cards in bushes next to a sidewalk on North Harbor
Drive in San Diego. The pedestrian testified that he had seen
a white Datsun matching the description of Mills's
missing vehicle parked within one block of where he had found
the wallet during the same week. Later that day, police
recovered Guthrie's purse from the same area of North
April 17, an Arizona Highway Patrol officer observed
Mills's white Datsun driving erratically on Interstate 40
in Yavapai County, Arizona. The officer initiated a traffic
stop and discovered Carter alone in the vehicle with what
appeared to be a burnt marijuana cigarette and placed Carter
under arrest on suspicion of driving under the influence.
While searching the vehicle for marijuana, the officer
discovered Cullins's bank identification card between the
driver's seat and center console.
search of the vehicle recovered the following items: a
suitcase, Korean-made wood-handled knife, yellow rubber
gloves, and a gold chain, all belonging to Kim; a supermarket
card belonging to Knoll; towels, athletic wear, and
photographic equipment, all belonging to Mills; three
hand-woven sweaters belonging to Guthrie; a key ring
belonging to Cullins; a piece of paper with Cullins's
bank password written on it; and a black "Members
Only" jacket matching the description of the jacket
Hogan had seen Carter wearing while with Kim. The jacket
contained a butcher knife, a knee-high nylon sock, and a
business card from Hogan's service station.
records revealed that all but $4.06 of Cullins's bank
account balance had been withdrawn from an ATM on April 13,
the day after she was last seen alive. A video of the
transaction showed a man wearing one of Guthrie's
sweaters and a black jacket withdrawing the funds. A
handwriting expert testified that there were "very
strong indications" that Cullins had written the
password on the slip of paper recovered from the Datsun but
also could neither eliminate nor identify Carter as the
Angeles trial regarding the crimes against Knoll, Mills, and
Guthrie was bifurcated into guilt and penalty proceedings. At
the guilt phase, Carter's counsel rested without calling
any witnesses or putting on a defense. Carter was convicted
on all counts. At the penalty phase, Carter's counsel
presented an extensive mitigation case detailed below. Carter
was sentenced to death.
Diego trial, which followed his conviction in Los Angeles
County, was also bifurcated into guilt and penalty
proceedings regarding the murder of Cullins and the rape of
B.S. Carter stipulated before trial that he had been
convicted of the murders of Knoll, Mills, and Guthrie.
guilt phase, counsel put on a defense by calling several
witnesses. But the jury found Carter guilty of the murder of
Cullins, and found true the special circumstances that the
murder was committed while lying in wait, during the
commission of both a robbery and a burglary, and that Carter
had previously been convicted of the murders of Knoll, Mills,
and Guthrie. It further found Carter guilty of the robbery of
Cullins and the burglary of her residence and found that he
had inflicted great bodily injury during the course of these
crimes. The jury also found Carter guilty of the forcible
rape, forcible oral copulation, and robbery of B.S. and the
burglary of her residence, and determined that Carter had
used a deadly weapon (a knife) in the commission of each of
his crimes against B.S.
penalty phase, counsel presented a mitigation case similar to
that presented in the Los Angeles trial. The jury returned a
recommendation of the death penalty. The court imposed a
California Supreme Court Proceedings
convictions and sentences were appealed to the California
Supreme Court. While those appeals were pending, Carter filed
his first round of state habeas petitions in that court. In
2005, the California Supreme Court affirmed the convictions
and death sentences in two separate, reasoned opinions.
People v. Carter, 117 P.3d 476 (Cal. 2005) (Los
Angeles); People v. Carter, 117 P.3d 544 (Cal. 2005)
(San Diego). The court affirmed both judgments in their
entirety with the exception of the San Diego court's
finding of the special circumstance of lying in wait on the
Cullins murder charge, which it set aside. Carter sought
review of these decisions in the Supreme Court of the United
States, which denied his petitions for writ of certiorari in
2006. Carter v. California, 547 U.S. 1099 (2006)
(mem.) (Los Angeles); Carter v. California, 547 U.S.
1043 (2006) (mem.) (San Diego).
2006, the California Supreme Court summarily denied
Carter's habeas petitions on the merits. Carter filed two
subsequent rounds of state habeas petitions in 2007 and 2010.
The California Supreme Court summarily denied each of those
petitions on the merits in 2010.
Federal Habeas Proceedings
initiated the instant proceedings in 2007. In a petition for
writ of habeas corpus filed in the United States District
Court for the Southern District of California, he asserted
seventeen claims for relief related to his San Diego County
trial. Two days later, he filed a petition for writ of habeas
corpus in the United States District Court for the Central
District of California, asserting seventeen additional claims
for relief related to his Los Angeles County trial. Carter
filed amended petitions in both federal district courts in
2010, reducing the number of claims in his Southern District
petition to sixteen.
2013, the Central District of California published a 146-page
order dismissing two of Carter's claims without prejudice
and denying the rest of his claims on the merits. The
district court granted a COA on two of Carter's claims:
that an irreconcilable conflict between Carter and trial
counsel resulted in a denial of his Sixth Amendment rights
(Certified Claim 1, and Claim 1 of the First Amended
Petition); and that trial counsel rendered ineffective
assistance because they refused to allow Carter to testify in
his own defense (Certified Claim 2, and Claim 5(D) of the
First Amended Petition). It denied a COA on the remaining
in 2013, the Southern District of California published a
318-page order denying all claims on the merits. The district
court granted a COA on two claims: that trial counsel had
rendered ineffective assistance during the penalty phase
(Certified Claim 1, and Claim 3 of the Second Amended
Petition); and that Carter was deprived of his right to the
competent assistance of a psychiatric expert (Certified Claim
2, and Claim 4 of the Second Amended Petition). It denied a
COA on the remaining claims. Carter filed a motion under
Federal Rule of Civil Procedure 59(e) or 60(b) to vacate the
order denying his petition and allow him to return to state
court to further develop the evidentiary record. The Southern
District denied this motion in a reasoned decision.
timely appealed both district court orders.
STANDARD OF REVIEW
review the district court[s'] denial of a habeas petition
de novo." Jones v. Harrington, 829 F.3d 1128,
1135 (9th Cir. 2016). Carter's habeas petitions are
subject to the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), which forecloses federal habeas relief for
"any claim that was adjudicated on the merits in State
court" unless the state court's decision was (1)
"contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States"; or (2) "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).
standards are "intentionally 'difficult to
meet.'" Woods v. Donald, 135 S.Ct. 1372,
1376 (2015) (per curiam) (quoting White v. Woodall,
572 U.S. 415, 419 (2014)). "'[C]learly established
Federal law' for purposes of § 2254(d)(1) includes
only 'the holdings'" of Supreme Court decisions;
it does not include Supreme Court dicta or circuit precedent.
Woodall, 572 U.S. at 419-20 & n.2; see
Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per
curiam). A state-court decision is "contrary to"
clearly established Supreme Court precedent "if it
'applies a rule that contradicts the governing law set
forth in [the Supreme Court's] cases' or if it
'confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a [different] result.'"
Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A
state-court decision "involve[s] an unreasonable
application" of clearly established Supreme Court
precedent if "it correctly identifies the governing
legal rule" but then applies that rule to the facts of a
particular case in an "objectively unreasonable"
way, such that the state court's ruling rested on
"an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement."
Woodall, 572 U.S. at 421, 426-27 (citations
omitted). Finally, a state-court decision is "based on
an unreasonable determination of the facts" if "we
are convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record." Murray
v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (citation
and internal alteration omitted).
deferential standards apply to each claim adjudicated on the
merits in state court, regardless of whether the state court
disposed of the claim in a reasoned opinion or a summary
ruling. Harrington v. Richter, 562 U.S. 86, 99
(2011). We generally "look to the last reasoned state
court decision to address the claim" on the merits.
White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018)
(citing Wilson v. Sellers, 138 S.Ct. 1188, 1192
(2018)). If there is no reasoned state-court decision, we
must "determine what arguments or theories . . . could
have supported the state court's decision."
Richter, 562 U.S. at 102.
even if a habeas petitioner satisfies one of the §
2254(d) prongs for relief, he must show that the claimed
trial error "resulted in 'actual
prejudice.'" Davis v. Ayala, 135 S.Ct.
2187, 2197 (2015) (quoting Brecht v. Abrahamson, 507
U.S. 619, 637 (1993)). "Under this test, relief is
proper only if the federal court has grave doubt about
whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury's
verdict." Id. at 2197-98 (internal quotation
begin with the claims certified by the district courts. For
three of the four claims, the "clearly established
Federal law," 28 U.S.C. § 2254(d)(1), is the
Supreme Court's decision in Strickland v.
Washington, 466 U.S. 668 (1984), which held that the
Sixth Amendment guarantees a criminal defendant the
"right to the effective assistance of counsel" at
both the guilt and penalty phases of a capital trial.
Id. at 685-87. Under Strickland, a
defendant claiming denial of effective assistance of counsel
"bears the burden to meet two standards."
Weaver v. Massachusetts, 137 S.Ct. 1899, 1910
the defendant "must show deficient performance-that the
attorney's error was 'so serious that counsel was not
functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment.'" Id.
(quoting Strickland, 466 U.S. at 687). Under
Strickland, our inquiry is highly deferential, and
we "must apply a 'strong presumption' that
counsel's representation was within the 'wide
range' of reasonable professional assistance."
Richter, 562 U.S. at 104 (quoting
Strickland, 466 U.S. at 689). "To overcome that
presumption, a defendant must show that counsel failed to act
'reasonably considering all the circumstances.'"
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)
(alteration omitted) (quoting Strickland, 466 U.S.
at 688). The relevant inquiry is "whether an
attorney's representation amounted to incompetence under
'prevailing professional norms,' not whether it
deviated from best practices or most common custom."
Richter, 562 U.S. at 105 (quoting
Strickland, 466 U.S. at 690). And given the
"temp[tation] for a defendant to second-guess
counsel's assistance after conviction or adverse
sentence," the Supreme Court has strongly cautioned us
against drawing the conclusion "that a particular act or
omission of counsel was unreasonable" just because it
"proved unsuccessful." Strickland, 466
U.S. at 689.
the defendant must "demonstrate prejudice-'a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'" Buck v. Davis, 137
S.Ct. 759, 776 (2017) (quoting Strickland, 466 U.S.
at 694). In the context of a death sentence, "[t]he
question is whether there is a reasonable probability that,
absent the errors, the sentencer would have concluded that
the balance of aggravating and mitigating circumstances did
not warrant death." Pinholster, 563 U.S. at 198
(alteration omitted) (quoting Strickland, 466 U.S.
Strickland's high bar is never an easy
task," and "[e]stablishing that a state court's
application of Strickland was unreasonable under
§ 2254(d) is all the more difficult."
Richter, 562 U.S. at 105 (citations omitted). Our
review under AEDPA is "doubly deferential," as we
must "afford 'both the state court and the defense
attorney the benefit of the doubt.'"
Donald, 135 S.Ct. at 1376 (quoting Burt v.
Titlow, 571 U.S. 12, 15 (2013)).
Claims Certified by the Central District: Claims 1 and
5(D)(1), Carter's Conflict with Counsel
Central District issued a COA for two largely overlapping
claims, which it addressed together. The certified claims
effectively present two questions on appeal: whether the
California Supreme Court's decisions that (1) Carter was
not denied his Sixth Amendment right to counsel because of an
"irreconcilable conflict" with his trial counsel
and (2) counsel's performance in refusing to let Carter
testify was not deficient, and even if it was, Carter was not
prejudiced, were contrary to or an unreasonable application
of clearly established federal law. For the reasons stated
below, we hold that the California Supreme Court did not
violate clearly established federal law in denying Carter
Carter's Attorneys and the Marsden Hearings
Perlo was initially appointed lead counsel and represented
Carter, along with Marcia Morrisey, for over two years during
1986-1988. About a year prior to trial, in March 1988, the
court appointed Rowan Klein to assist Carter in his motion to
substitute counsel, which under California law is referred to
as a Marsden motion. See People v. Marsden,
465 P.2d 44 (Cal. 1970). The trial court held a
Marsden hearing in which Klein notified the court
that conflicts between Perlo and Carter had "led to a
total breakdown of the attorney-client relationship" and
that Carter wanted a new attorney to be appointed in place of
Perlo. The trial court was troubled by this "easily
made," "blanket statement" that would further
delay a trial already "long overdue." It
nevertheless agreed that the conflict between Perlo and
Carter did not give it "much choice" but to grant
the motion. The court appointed Howard Gillingham lead
counsel a week later, and he and Morrissey represented Carter
throughout the duration of the trial.
5 (First Marsden Hearing)
5, 1989, just after the prosecution rested during the guilt
phase, Gillingham requested an ex parte hearing to
apprise the trial court of a disagreement between him and
Carter. Gillingham invoked Marsden in requesting the
hearing but did not say anything that would suggest Carter
had requested new counsel. Gillingham stated he wanted to
"spread something on the record regarding the defense
strategy and position." He informed the court that it
was his and Morrissey's "firm belief that [they]
should rest" and not put on a defense at the guilt
stage. He noted that there were a number of potential
witnesses he could call but that they made the "tactical
decision not to call those witnesses." He did not
mention Carter as one of those witnesses. Gillingham
acknowledged Carter emphatically disagreed with the decision
not to call any witnesses and that Carter wanted the
disagreement preserved in the record. Gillingham argued that
this was a situation where the appointed lawyers "should
call the shots." The trial court agreed, noting
"the record is clear" and that "in these
matters the decisions should be with the counsel."
Carter did not speak during the hearing and Gillingham
subsequently testified that, based on his belief that the
"lawyer ought to do the talking," he had instructed
Carter not to speak unless the court directly addressed him.
10 (Second Marsden Hearing)
later testified that after the first Marsden
hearing, he complained to Gillingham for leaving out "a
couple of things," including telling the court about his
desire to testify, and for not "ma[king] it as clear as
[Carter] would have liked." Thus, on July 10, after both
parties had rested but prior to closing arguments, Gillingham
requested another hearing, which he noted "probably
should be done in a sealed ...