Hooman Panah v. Kevin Chappell , 935 F.3d 657 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOOMAN ASHKAN PANAH, No. 13-99010
Petitioner-Appellant,
D.C. No.
v. 2:05-cv-07606-
RGK
KEVIN CHAPPELL, Warden of
California State Prison at San
Quentin, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted June 26, 2019
Pasadena, California
Filed August 21, 2019
Before: Kim McLane Wardlaw, Jacqueline H. Nguyen,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
2 PANAH V. CHAPPELL
SUMMARY *
Habeas Corpus
The panel affirmed the district court’s denial of Hooman
Panah’s habeas corpus petition challenging his State of
California conviction and sentence for the first-degree
murder and sexual assault of an eight-year-old girl.
The district court granted a certificate of appealability as
to Panah’s claim brought pursuant to Napue v. Illinois, 360
U.S. 264 (1959), in which Panah, relying on post-conviction
DNA reports, contended that he was prejudiced by the
State’s presentation of serology testimony which, he argued,
the State knew was false and misleading. The panel held that
the California Supreme Court reasonably rejected this claim.
The panel held that even assuming there was no reasonable
basis for the state court to deny the claim as to the first two
Napue requirements – that the testimony was false or
misleading, and that the State knew or should have known
that – the panel could not say that it would be unreasonable
to conclude that the testimony did not satisfy the third
requirement – materiality. Observing that even setting aside
the serology testimony, the case against Panah was
devastating, the panel held that the California Supreme
Court would not have erred in finding no reasonable
likelihood that the testimony could have affected the verdict.
The panel expanded the certificate of appealability to
encompass Panah’s claim that his trial counsel rendered
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PANAH V. CHAPPELL 3
ineffective assistance by failing to conduct a reasonable
investigation and therefore not rebutting the State’s serology
and pathology evidence. The panel expressed concern with
counsel’s lack of pre-trial investigation, but held that even
assuming counsel’s performance was deficient, it could not
say – in light of the overwhelming evidence of Panah’s guilt
and the deference owed the state court judgment – that the
California Supreme Court would have erred in finding no
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.
COUNSEL
Joseph A. Trigilio (argued), Mark R. Drozdowski, and Susel
B. Carrillo-Orellana, Deputy Federal Public Defenders;
Hilary Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; Firdaus
F. Dordi, Los Angeles, California; for Petitioner-Appellant.
Toni R. Johns Estaville (argued), Ana R. Duarte, A. Scott
Hayward, and Dana M. Ali, 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.
4 PANAH V. CHAPPELL
OPINION
OWENS, Circuit Judge:
California state prisoner Hooman Panah appeals from
the district court’s denial of his habeas corpus petition
challenging his conviction and sentence for the first-degree
murder and sexual assault of eight-year-old Nicole Parker.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In the early afternoon of November 20, 1993, Parker
went missing from her father’s apartment complex, where
Panah also lived with his mother. While searching for her in
the complex, Parker’s father knocked on Panah’s door and
asked if Panah had seen her. Panah responded something
like, “oh, is she missing.” He then offered to help Parker’s
father look for her, “persistent[ly]” suggesting they search
outside the apartment complex. Soon after, the police
arrived and conducted a door-to-door search for Parker,
including Panah’s apartment. The police did not find Parker
or any clues as to her whereabouts.
That day, Panah reported to work in the mid-afternoon.
Around 5:30 pm, his mother, who was with two police
officers, called Panah. The officers asked him if he knew
Parker or had seen her that day. He responded that he knew
her only “vaguely” and denied having seen her that day.
Shortly after the officers’ inquiry – hours before his shift
ended – Panah left work without telling anyone. He later
called his manager to say that he would not return “because
some people that he knew [were] trying to get him in trouble
and would [his manager] please inform his mother to get out
PANAH V. CHAPPELL 5
of town.” Panah also paged his co-worker, Rauni Campbell,
asking for help. He told her that he “d[id] something very
bad,” “so big” that she would find out.
The next morning, Panah showed up without warning at
Campbell’s apartment. His wrists were cut, and he requested
sleeping pills, which she helped him buy. Campbell asked
Panah if he had anything to do with “the little girl that was
missing from his apartment complex.” He said yes. She
then asked him whether Parker was still alive. He said no.
At this point, Campbell surreptitiously called the police.
When they arrived, Panah tried to evade arrest but was
eventually caught and taken to the hospital. At the hospital,
under the influence of drugs and reportedly in a psychotic
state, Panah told police, in response to questions about
Parker, that he “liked her very much, even [to] carry her
skeleton remains around.”
Later that evening, the police, armed with a search
warrant, returned to Panah’s apartment. In his bedroom
closet, they found Parker’s naked body, wrapped in a
bedsheet and stuffed in a suitcase. The police then gathered
evidence from Panah’s bedroom, including examining his
bed and Parker’s body for evidence of sexual assault.
Panah was indicted on charges of first-degree murder
with special circumstances alleging that the murder occurred
during a kidnapping, sodomy, lewd acts on a person under
fourteen years old, and oral copulation of a person under
fourteen years old. He was also charged with the substantive
counts of kidnapping, sodomy by force, lewd acts on a
person under fourteen years old, penetration of genital or
anal openings by a foreign object with a person under
fourteen years old, and oral copulation of a person under
fourteen years old. Panah pled not guilty.
6 PANAH V. CHAPPELL
Panah was initially represented by a family friend,
Syamak Shafi-Nia, who had limited criminal law
experience. But prior to trial, the court appointed Robert
Sheahen, a veteran criminal lawyer, as lead counsel, and
allowed Shafi-Nia to stay on as second counsel. Sheahen
had requested this appointment, promising the court that he
would facilitate a settlement, which would “save[] a great
deal of time and the taxpayers would be saved a great deal
of money” by avoiding “an extremely costly trial.”
In July 1994, several months before trial, the State
notified the court and defense that it had ordered DNA
testing on evidence found at the crime scene. While
awaiting the test results in September, the court urged
Sheahen to “find a DNA expert to assist you” and “see if
there’s any basis for questioning the results.” In October,
two months before trial, the State shared the DNA test results
with the defense. Again, the court advised Sheahen to retain
an expert, to which Sheahen responded, “That will be taken
care of.”
However, as trial approached, the State decided not to
introduce the DNA evidence. The court pressed defense
counsel why he had not yet independently tested the DNA.
Counsel explained that doing so “would put us in the
position of confirming the prosecution results,” and that he
instead planned to argue that the State’s “failure to do DNA
testing should be held against” them. The court approved of
this strategy, calling counsel’s “tactics . . . very sound in this
particular case.”
PANAH V. CHAPPELL 7
Panah’s trial began on December 5, 1994. With jury
selection set to begin, Sheahen notified the court that Shafi-
Nia was no longer able to serve as second counsel but did
not request a continuance. Accordingly, Panah began jury
selection with just one lawyer. Shortly after, the court
appointed new second counsel to replace Shafi-Nia, but
second counsel was required to familiarize himself with the
case during trial.
The State’s theory was felony murder. It emphasized the
abundance of circumstantial evidence against Panah and
focused on “Parker’s body bloody and battered,” which was
“tied up in a sheet inside a zipped suitcase” in Panah’s closet.
It also highlighted Panah’s incriminating behavior soon after
Parker went missing, including that Panah was “anxious” to
encourage Parker’s father to search outside the apartment
complex; “had fled” work hours before his shift ended after
receiving a call about Parker from his mother and police; and
made numerous admissions about his involvement in
Parker’s murder. Panah’s manager and Campbell testified
about his statements on the day of and after Parker’s
disappearance.
The State also presented forensic evidence as part of its
case-in-chief.
The coroner, Dr. Heuser, testified that Parker’s physical
injuries occurred premortem. Describing the violent nature
of the assault, she explained that Parker suffered “blunt
force” injuries, including bruising on her forehead, eye,
8 PANAH V. CHAPPELL
neck, lip, arms, and buttocks; scratches on her inner thighs;
and brain swelling. Dr. Heuser also testified to Parker’s
sexual assault injuries. Parker had bruising, as well as signs
of bleeding and tears, in the vaginal and rectal areas. Her
vaginal opening was “very widely” open – most likely
consistent with digital penetration. Her anal opening was
also “widely open and very lax looking,” “consistent with
the insertion of a penis into her rectum.”
Dr. Heuser also testified that Parker’s death was due to
“traumatic injuries,” either the result of “manual
strangulation” or force to Parker’s rectum.
Serologist William Moore testified about stains found on
three items in Panah’s bedroom: (1) the bedsheet Parker was
wrapped in, (2) a robe found on Panah’s bed, 1 and (3) a
tissue from a wastebasket in Panah’s bathroom.
Preliminarily, Moore noted that Panah’s blood type was B
and Parker’s was A. Because his testing discovered that
stains on each item contained a mixture of A and B antigens,
Moore posited that this was consistent with a mixture of
Parker’s and Panah’s bodily fluids and thus sexual contact
between them.
As to the bedsheet, Moore described the stains as
“indicative of a mixture of physiological fluids” – blood,
semen, and amylase (a constituent of saliva and other bodily
fluids) – that included both A and B antigens. Because the
bloodstain was “consistent” with Parker’s type A blood, he
surmised the other stains were consistent with semen from
Panah and saliva from Parker. He also noted that the pattern
1
The district court’s opinion calls the robe a kimono.
PANAH V. CHAPPELL 9
of the stains “could . . . be consistent with the spewing of
semen across the bed sheet.”
Moore similarly testified that the tissue “bore semen
stains, and high amylase activity,” likely from a mix of
Parker’s and Panah’s bodily fluids. Again, he remarked that
this stain “could be consistent with the product of an oral
copulation.” Lastly, he testified that Panah’s robe had a
large stain with a mix of A and B antigens. Because the
robe’s bloodstain was consistent with Parker, he
hypothesized that the B antigens came from Panah’s saliva.
Moore also briefly testified about evidence collected
from the sexual assault examination, although he did not
conduct it. He acknowledged that the oral and anal swabs
had not produced any signs of semen, nor was “the presence
of semen conclusively” found anywhere on Parker’s body.
On cross-examination, Moore admitted that he could not
“establish any certainty” that either Parker or Panah was a
contributor to the stains because of the relatively high
statistical frequency of the A and B antigens matching other
people. Moore further testified that his theory would not
bear out if the A and B antigens on the three items came from
one person with AB blood type. 2
The defense consisted of testimony from Dr. John
Palmer, the emergency room doctor who treated Panah the
day after Parker went missing, and several character
witnesses. Dr. Palmer reported that Panah was “acutely
2
After the State presented its case, the court granted the defense’s
motion for acquittal on the substantive charges of kidnapping and the
special circumstance allegation of kidnapping.
10 PANAH V. CHAPPELL
psychotic” and suicidal when brought into the emergency
room that day.
The State summarized its evidence: “We have blood
typing that matches. We have the body in his suitcase in his
closet, and we have statements he makes that show
knowledge before the body was found. We have his
involvement in the crime clearly established.” The State
focused on where Parker’s body was found: “You have a
body in his closet, in his suitcase. There isn’t a whole lot
more you need to do after that in terms of looking and
investigating outside of the obvious, which is that Mr. Panah
is the person involved.” It also focused on Panah’s
statements after Parker went missing: “Those aren’t crazed
remarks. Those are the remarks of an individual who is
telling exactly what happened.” The State then reminded the
jury of Moore’s testimony, arguing it was “not a harebrained
prosecution theory.” It particularly used his testimony to
prove the alleged oral copulation:
We think the evidence that was presented to
you is very consistent with the fact that he
ejaculated in her mouth, that he allowed her
to spit it out in a Kleenex, because we have
the evidence of semen of his blood type, high
amylase content, indicating a saliva which
matches her blood type on the Kleenex, as
well as having a spattering on the bed sheet
of a mixture of semen and saliva – again the
high amylase indicating saliva – of his type B
and her type A.
It also said that “the one possible inference that can be
drawn” from Moore’s testimony about the robe is that the B
PANAH V. CHAPPELL 11
antigens came from “the saliva of the defendant” during the
sodomy.
Acknowledging that none of this was “conclusive
evidence,” the State argued that, “when taken with
everything else[, this] would indicate that there had been an
act of oral copulation, that there was ejaculate in Nicole
Parker’s mouth.” The State also responded to the defense’s
assertion that its case was weak because of the lack of DNA,
claiming that DNA testing is “usually ordered in a situation
where you don’t have other types of proof available. In this
situation we have the proof available.”
In its closing, the defense questioned the reliability of the
serology evidence, calling Moore’s theory “hogwash,” and
insisted that the stains proved nothing. Rather, counsel
highlighted the lack of DNA evidence, which “could tell us
who’s the source of this stuff . . . [and] whether it, in fact,
could be traced to the deceased or whether it could be traced
to any number of other people.”
The jury convicted Panah of first-degree murder and the
other felonies. The jury also found true the special
circumstance allegations that the murder was committed
while engaged in the crime of sodomy and lewd acts on a
person under the age of fourteen. The jury did not find true
the special circumstance allegation that the murder occurred
in the commission of oral copulation. After the penalty
phase, the jury returned a death sentence.
On March 14, 2005, the California Supreme Court
affirmed Panah’s conviction and sentence, People v. Panah,
12 PANAH V. CHAPPELL
107 P.3d 790 (Cal. 2005), and the United States Supreme
Court subsequently denied certiorari, Panah v. California,
546 U.S. 1216 (2006). About a year later, the California
Supreme Court summarily denied Panah’s first habeas
petition. After filing a protective habeas petition in the
District Court for the Central District of California, Panah
filed a second state habeas petition and a first amended
petition in the district court. The district court stayed
proceedings during the pendency of Panah’s state habeas
proceedings. On March 16, 2011, the California Supreme
Court again summarily denied Panah’s second state habeas
petition, and the district court lifted the stay on Panah’s
federal habeas proceedings.
In his habeas petitions, Panah provided new evidence,
including two reports detailing post-conviction DNA testing
on the stains that Moore testified about at trial. The first
report (“Calandro Report”), prepared in 2004, disagreed
with much of Moore’s testimony. But because the Calandro
Report yielded several inconclusive results, additional
testing was conducted two years later, leading to the second
report (“Inman Report”). Both reports doubted the
foundation of Moore’s mixture theory. The Calandro Report
called “Mr. Moore’s approach . . . biased and indefensible,”
and the Inman Report wrote that “[n]o biological evidence
exists to support the hypothesis that a mixture of biological
fluids from Mr. Panah and Ms. Parker was present on the
tissue, bedsheet, or kimono.”
More specifically, both reports “contradict[ed]” Moore’s
testimony about the tissue. While Moore testified that Panah
and Parker were both possible contributors to the tissue stain,
the reports eliminated any possibility that Parker was a
source. On appeal to this court, the State concedes that
Moore’s tissue testimony was false.
PANAH V. CHAPPELL 13
However, the post-conviction testing produced
inconclusive results regarding the bedsheet and robe stains.
Neither report could definitively eliminate Parker as a
contributor to several stains on the bedsheet. While they
conclusively found that two stains were consistent only with
Panah, they could not conclusively rule Parker out as a
contributor to the three other bedsheet stains. Although this
left open the possibility that Moore’s mixture theory was
correct, the reports opined that this at minimum refuted his
assumption that “Ms. Parker ‘spit out’ ejaculate onto the bed
sheet” because one would then expect to “detect Ms.
Parker’s DNA in significant quantities on the bed sheet.” As
for the robe, the reports agreed with Moore that the
bloodstain was consistent with Parker’s blood type. But,
unlike Moore’s serology testimony, they found no trace of
Panah’s DNA on the robe.
Panah’s habeas petitions also included declarations from
his three trial lawyers. Each declaration acknowledged there
had been almost no pre-trial investigation and only a limited
penalty-phase investigation, nor were any experts retained to
independently analyze the State’s serology and pathology
evidence. Instead, “all of [defense counsel’s] efforts had
gone into the aborted settlement.”
On November 14, 2013, the district court denied Panah’s
petition. As for Panah’s Napue v. Illinois, 360 U.S. 264(1959), claim, the district court held that, even if post-
conviction DNA testing rendered a portion of Moore’s
testimony false, the California Supreme Court could have
reasonably concluded that it did not render all of the
testimony false and that his testimony was immaterial in
light of the other evidence. In this discussion, the district
court also rejected Panah’s claim of ineffective assistance for
failure to investigate the State’s forensic evidence because
14 PANAH V. CHAPPELL
the California Supreme Court reasonably could have
concluded that Panah was not prejudiced.
The district court granted a certificate of appealability
(“COA”) for Panah’s Napue claim, discussed below in
section III. On appeal, Panah has raised a number of
uncertified issues in his opening brief, which we treat as a
request to expand the COA. 9th Cir. R. 22-1(e). After
asking the State to respond to several of the uncertified
issues, we expand the COA to encompass Panah’s guilt-
phase ineffective assistance claim, addressed below in
section IV, but deny Panah’s request to expand the COA as
to the other uncertified claims. We evaluate Panah’s two
certified claims in turn.
We review the district court’s denial of habeas relief de
novo. Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir. 2004).
Because Panah filed his federal habeas petition after
April 24, 1996, it is subject to the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See
Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Under
AEDPA, we may grant relief only if the adjudication
“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,”
28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” id. § 2254(d)(2).
Although we typically “look through” a summary
disposition to the last reasoned state court decision, Ylst v.
Nunnemaker, 501 U.S. 797, 806 (1991), here there is no
reasoned state court decision addressing either certified
PANAH V. CHAPPELL 15
claim. Therefore, we independently review the record to
determine whether the California Supreme Court had any
reasonable basis to deny Panah relief. See Reis-Campos v.
Biter, 832 F.3d 968, 974 (9th Cir. 2016) (citing Harrington
v. Richter, 562 U.S. 86, 102 (2011)).
Relying on the two post-conviction DNA reports, Panah
contends that he was prejudiced by the State’s presentation
of Moore’s serology testimony, which he argues the State
knew was false or misleading.
In Napue, the Supreme Court held “that a conviction
obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth
Amendment.” 360 U.S. at 269. Nonetheless, a Napue claim
succeeds only if three elements are satisfied. See United
States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).
First, the testimony or evidence in question must have been
false or misleading. See id.; see also Alcorta v. Texas,
355 U.S. 28, 31 (1957) (considering whether “testimony,
taken as a whole, gave the jury [a] false impression”).
Second, the State must have known or should have known
that it was false or misleading. See Zuno-Arce, 339 F.3d
at 889; see also Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir.
2010) (“[E]ven false evidence presented in good faith . . .
hardly comports with fundamental fairness.” (quoting
Killian v. Poole, 282 F.3d 1204, 1209 (9th Cir. 2002))). And
third, because “Napue does not create a ‘per se rule of
reversal,’” the testimony or evidence in question must be
material. Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir.
2011) (quoting Jackson v. Brown, 513 F.3d 1057, 1076 (9th
Cir. 2008)); see also Zuno-Arce, 339 F.3d at 889.
16 PANAH V. CHAPPELL
Materiality under Napue requires a “lesser showing of
harm . . . than under ordinary harmless error review.” Dow
v. Virga, 729 F.3d 1041, 1048 (9th Cir. 2013). But, after
weighing the effect of alleged Napue violations collectively,
see Phillips v. Ornoski, 673 F.3d 1168, 1189 (9th Cir. 2012),
there still needs to be a “reasonable likelihood that the false
testimony could have affected the judgment of the jury.”
Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005) (en banc)
(quoting Belmontes v. Woodford, 350 F.3d 861, 881 (9th Cir.
2003)). Thus, a Napue claim fails if, absent the false
testimony or evidence, the petitioner still “received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence.” Hayes, 399 F.3d at 984 (quoting Hall v. Dir.
of Corr., 343 F.3d 976, 984 (9th Cir. 2003) (per curiam)).
Even if we assume there was no reasonable basis for the
state court to deny Panah’s claim as to the first two Napue
requirements, we cannot say that it would be unreasonable
to conclude that Moore’s testimony was immaterial. See
Towery v. Schriro, 641 F.3d 300, 308 (9th Cir. 2010) (not
reviewing all three requirements because petitioner’s
“argument fails at the second Napue prong”). The State
presented a powerful case of Panah’s guilt, with substantial
evidence linking him to Parker’s murder and sexual assault.
Moore’s testimony was just one – and not a crucial – piece
of that presentation. Because the “verdict” is still reasonably
“worthy of confidence,” Phillips, 673 F.3d at 1189 (quoting
Sivak, 658 F.3d at 912), we hold that the California Supreme
Court would not have erred in finding no “reasonable
likelihood that [Moore’s testimony] could have affected the
judgment of the jury.” Hayes, 399 F.3d at 985 (quoting
Belmontes, 350 F.3d at 881); see also Phillips, 673 F.3d
at 1190 (“[T]he prosecution’s Napue violations, although
‘pernicious’ and ‘reprehensible,’ were not material to
PANAH V. CHAPPELL 17
[petitioner’s] conviction of first-degree murder.” (quoting
Hayes, 399 F.3d at 981)).
Even setting aside Moore’s testimony, the case against
Panah was devastating. Parker’s naked body was found in a
suitcase in Panah’s bedroom closet. Blood stains matching
Parker’s blood type – according to both Moore and the post-
conviction reports – were found on Panah’s robe. Moreover,
Panah’s behavior on the day of and after Parker went missing
was highly suspicious. Hours after she disappeared, Panah
tried to divert her father away from where her body was later
found. Then, after the police called Panah at work to ask if
he had seen Parker, he left without explanation, later telling
his manager and Campbell that he was in serious trouble.
The next morning, Panah even confided in Campbell that he
was involved in Parker’s death. See Arizona v. Fulminante,
499 U.S. 279, 296 (1991) (“A confession is like no other
evidence. Indeed, ‘the defendant’s own confession is
probably the most probative and damaging evidence that can
be admitted against him.’” (quoting Bruton v. United States,
391 U.S. 123, 139 (1968) (White, J., dissenting))). And then,
particularly incriminating in light of his statements, Panah
attempted suicide the morning after Parker’s disappearance.
The jury then heard Dr. Heuser’s impactful testimony
about the crime itself. She described Parker’s extensive
injuries from the sexual assault, including significant trauma
to Parker’s vaginal and rectal areas, indicative of digital and
penile penetration. In addition, Dr. Heuser described the
violent nature of the assault: Parker was hit with “blunt
force,” consistent with her “head striking . . . a wall or a
floor” or being hit with a “fist.” As a result, Parker’s brain
was swollen from this “significant impact,” and she had
bruises – some caused by “manual strangulation” – along her
face, neck, arms, buttocks, and legs, and scratches on her
18 PANAH V. CHAPPELL
legs. Dr. Heuser cited strangulation and sodomy as “the
most lethal injuries.”
Although Dr. Heuser’s testimony did not directly
implicate Panah, it was nonetheless critical. It established
that a crime – and a brutal one – took place. When added to
the evidence the jury heard about where Parker’s body was
found and Panah’s statements, it was more than sufficient for
the jury to render a guilty verdict. And, while Panah
contends that Moore’s testimony was prejudicial because of
its at-times graphic descriptions, particularly of oral
copulation, Dr. Heuser’s testimony offered an even more
graphic and detailed description of the entire sexual assault
and murder. As the State itself said, Dr. Heuser’s testimony
is “probably the most telling evidence of what happened.”
The state court also reasonably could have found
Moore’s testimony to be an immaterial part of the State’s
case because it offered the jury, at most, hypotheticals and
wavering findings. Unlike Dr. Heuser’s straightforward
testimony about Parker’s injuries, Moore acknowledged that
his findings rested on a number of assumptions, such as that
the A and B antigens came from two people rather than one
with AB blood type. And even if he was correct that the A
and B antigens came from two people, Moore neither could
definitively say they came from Parker and Panah, nor could
he even narrow the pool of possible matches to less than
hundreds of thousands of people. He said frankly on the
stand: “I cannot establish any certainty based on
conventional serology. I can only demonstrate consistency.”
For this reason, Moore’s testimony was couched in
inconclusive terms, such as “could have originated from” or
were “consistent” with. The State even acknowledged this
weakness in Moore’s findings in closing argument:
PANAH V. CHAPPELL 19
Now the question is, did a person with AB
blood leave . . . body fluids such as blood,
semen[,] and saliva, on the sheets, on the
toilet paper, on the robe. That is one
interpretation. The other interpretation, of
course, is that you have two separate people,
one of whom has type A, and one has type B.
Therefore, at best, Moore’s testimony required the jury
to draw its own inferences. This was not the case of
impactful expert testimony telling the jury that there was a
one-in-a-million chance the evidence matched anyone but
Panah. Rather, any effect Moore’s findings may have had
on the jury – which was reasonably none – was fully
dependent on the other weighty evidence presented by the
State. For instance, without having found Parker’s body in
Panah’s bedroom, no juror could have reasonably inferred
that Parker was the A antigen contributor.
The jury’s verdict removes any lingering doubt about the
materiality of Moore’s testimony. If the State needed
Moore’s testimony at all, it was to prove the special
circumstance allegation and substantive charge of oral
copulation. In its closing, for instance, the State referred to
Moore’s findings of mixed bodily fluids on the tissue and
bedsheet to prove this sexual act. Yet, the jury did not find
true the special circumstance allegation that Parker’s murder
was committed while in the commission of oral copulation.
Although the jury did find Panah guilty of the felony of oral
copulation, the verdict is still telling. A reasonable
interpretation of the jury’s rejection of this special
circumstance is that the jury was not entirely persuaded by
Moore’s mixture theory. In contrast, this highlights the
effectiveness of Dr. Heuser’s testimony. The State relied on
her findings to prove the special circumstance allegations
20 PANAH V. CHAPPELL
and substantive charges of sodomy and lewd acts, which the
jury found to be true.
Still, Panah contends that Moore’s testimony was
material because it was the only evidence identifying him as
the perpetrator. Although creative, this argument makes
little headway. It ignores the substantial evidence tying
Panah to Parker’s murder and sexual assault. This was not a
case where the police had no leads on a suspect. Nor was it
a case where the prosecution needed Moore’s serology
evidence to place Panah at the crime scene. Rather, as the
State emphasized in its closing: “You have a body in his
closet, in his suitcase. There isn’t a whole lot more you need
to do after that in terms of looking and investigating outside
of the obvious, which is that Mr. Panah is the person
involved.” And, as previously mentioned, Panah’s own
admissions linked him to the assault. Thus, even without
Moore’s testimony, the State had no difficulty proving
identity.
For these reasons, Panah’s reliance on Miller v. Pate,
386 U.S. 1 (1967), is unavailing. In Miller, the petitioner
was also charged with the murder and sexual assault of a
young girl without any eyewitnesses to the crime. Id. at 2–
3. The State’s only evidence linking petitioner to the victim
was male underwear, which an expert said had blood stains
on it matching the victim, found near the crime scene. Id.at 3–4. Post-conviction testing proved the underwear stains
were paint, not blood, and that the State had known this at
trial. Id. at 5–6. The Supreme Court reversed petitioner’s
conviction because, while the State successfully used the
underwear as “an important link in the chain of
circumstantial evidence against the petitioner,” in reality it
was “virtually valueless as evidence.” Id. at 4, 6.
PANAH V. CHAPPELL 21
Miller is clearly distinguishable. First, although the
parties agree that the tissue testimony was false, post-
conviction testing did not render the majority of Moore’s
testimony false. Neither post-conviction report conclusively
refuted his findings as to the bedsheet or robe stains.
Therefore, unlike in Miller, the evidence in question here did
not become “virtually valueless” to convict. Id. at 6.
Second, Moore’s testimony was not the “important link” in
proving Panah’s guilt. Id. at 4. The State did not even need
Moore’s testimony to convict Panah. This case differs
significantly from Miller because here the state court could
reasonably rely on an abundance of other evidence to still
have confidence in the conviction.
Panah’s reliance on Alcorta, 355 U.S. 28, also is
misplaced. There, the Court overturned petitioner’s
conviction because the false “testimony was seriously
prejudicial to petitioner” and “tended squarely to refute his
claim.” Id. at 31. Had the false testimony been corrected,
petitioner’s defense would have been corroborated. But,
here, even if Moore’s testimony had been corrected or
entirely excluded, the jury would not have heard a
significantly different presentation of evidence. At most,
although we think unlikely, the State’s case may have
become marginally weaker.
Rather, this case is quite similar to Sivak, 658 F.3d 898,
in which we rejected a guilt-phase Napue claim because the
court had “full confidence that the jury would still have
convicted.” Id. at 913. There, we held: “[E]ven if the jury
disbelieved [the false testimony] entirely . . . there still is no
‘reasonable likelihood that the false testimony could have
affected the judgment of the jury.’” Id. at 914 (quoting
Jackson, 513 F.3d at 1076). As in Sivak, we think the
California Supreme Court reasonably still could have had
22 PANAH V. CHAPPELL
“full confidence” that the jury would have returned the same
verdict even in absence of Moore’s testimony. Id. at 913.
In sum, we do not think Moore’s testimony was critical
in convicting Panah. Excluding Moore’s testimony, the
State’s case was still devastating and largely unchallenged.
Moore’s testimony was certainly not “the centerpiece of the
prosecution’s case.” Hayes, 399 F.3d at 985. Rather, in light
of the overwhelming evidence against Panah and the jury’s
rejection of the oral copulation special circumstance, it is
reasonable to conclude that his testimony had essentially no
effect on the jury’s decision making. Cf. Dow, 729 F.3d
at 1049–50 (concluding that false testimony was material
because “[t]he evidence against [petitioner] was weak”);
Maxwell, 628 F.3d at 508 (holding that false testimony was
material because it came from a “‘make-or-break’ witness
for the State” and there was a “paucity of other evidence”);
Hall, 343 F.3d at 984 (reversing under Napue “[i]n light of
the already scant evidence on which the conviction was
based”). As such, we conclude that the California Supreme
Court reasonably rejected Panah’s Napue claim.
We next turn to Panah’s guilt-phase ineffective
assistance claim. To prevail, Panah must show that his
counsel’s performance “fell below an objective standard of
reasonableness” and “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington,
466 U.S. 668, 688, 694 (1984). “The likelihood of a
different result,” however, “must be substantial, not just
conceivable.” Richter, 562 U.S. at 112. This already
imposing standard becomes doubly difficult to satisfy once
AEDPA deference is tacked on. See Cullen v. Pinholster,
563 U.S. 170, 189 (2011) (“[T]he benchmark for judging any
PANAH V. CHAPPELL 23
claim of ineffectiveness [under Strickland] must be whether
counsel’s conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as
having produced a just result.” (quoting Strickland, 466 U.S.
at 686)).
Panah argues that his trial counsel was ineffective for
failing to conduct a reasonable investigation and therefore
not rebutting the State’s serology and pathology evidence.
In support of his claim, Panah notes that his counsel never
retained an expert to independently analyze the pathology
and serology evidence or to testify at the guilt phase.
Instead, defense counsel essentially seemed to accept the
State’s evidence as true. In post-conviction proceedings,
counsel acknowledged that his inordinate focus on
settlement resulted in too little, if even any, pre-trial
investigation.
While we are instructed to “avoid the temptation to
second-guess [counsel’s] performance,” Mayfield v.
Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc), we
are concerned with defense counsel’s lack of pre-trial
investigation. See Duncan v. Ornoski, 528 F.3d 1222, 1235
(9th Cir. 2008) (“[L]awyers [have] considerable discretion
to make strategic decisions about what to investigate, but
only after those lawyers ‘have gathered sufficient evidence
upon which to base their tactical choices.’” (quoting
Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir.
2002))). But we “need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies.” Strickland, 466 U.S. at 697. Here, even
assuming counsel’s performance was deficient, we cannot
say – in light of the overwhelming evidence of Panah’s guilt
and the deference we owe the state court judgment – that the
24 PANAH V. CHAPPELL
California Supreme Court would have erred in finding no
“reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
After weighing counsel’s deficiencies cumulatively with
“the strength of the government’s case,” Rios v. Rocha,
299 F.3d 796, 808–09 (9th Cir. 2002) (quoting Eggleston v.
United States, 798 F.2d 374, 376 (9th Cir. 1986)), we believe
the state court reasonably rejected Panah’s assertion that the
trial’s outcome “would have been dramatically different”
had counsel’s performance not been deficient. Our
reasoning on prejudice bears significant similarities to why
we reject Panah’s Napue claim. We do not wish to harp on
what was detailed in the preceding section, but the State had
a uniquely strong case against Panah. Parker’s body was
found in his bedroom; Panah’s behavior the day of and after
her disappearance was incriminating; Panah admitted his
own involvement in her death; and Parker’s serious physical
injuries, including to her genitalia, were well-documented.
Defense counsel even acknowledged that this evidence was
the foundation of the State’s case: “The critical pieces of
evidence are obviously that the child’s body is found in Mr.
Panah’s closet, her naked body with a considerable amount
of blood. There is evidence . . . that the child was beaten.”
It is, therefore, inconceivable, even had defense counsel
independently investigated the serology and pathology
evidence, that the jury would have reached a different
verdict. See Williams v. Filson, 908 F.3d 546, 570 (9th Cir.
2018) (“We have long recognized . . . that ‘prejudice
resulting from ineffective assistance of counsel must be
“considered collectively, not item by item.”’” (quoting Doe
v. Ayers, 782 F.3d 425, 460 n.62 (9th Cir. 2015))). Even if
the weaknesses in Moore’s and Dr. Heuser’s findings that
PANAH V. CHAPPELL 25
came to light post-conviction were raised at trial, that would
have done nothing to reasonably change the outcome. Not
only was there no “strong, unequivocal, exculpatory
evidence available,” Rios, 299 F.3d at 813, but there was
nothing to substantively challenge the serology or pathology
evidence. It is true that counsel could have told the jury that
Moore’s findings as to the tissue were wrong. But counsel
could not have refuted Moore’s findings as to the bedsheet
and robe stains, and even a different outcome on the felony
of oral copulation would not affect Panah’s guilty verdict
and death sentence. Also, Panah’s contention that he was
prejudiced by counsel’s failure to rebut Moore’s mixture
theory because it put him at the crime scene fails to
acknowledge that finding Parker’s body in his bedroom
alone was sufficient to do that. Therefore, whatever rebuttal
of the State’s expert witnesses that Panah believes he was
deprived of and thus prejudiced by would not have overcome
the other significant evidence of guilt.
Moreover, for however deficient defense counsel’s
investigation was, the state court also could have reasonably
found no prejudice because counsel adequately challenged
the State’s expert witnesses on the stand. See Richter,
562 U.S. at 111 (“In many instances cross-examination will
be sufficient to expose defects in an expert’s presentation.”).
During Moore’s cross-examination, defense counsel
attempted to cast doubt on his findings. His questions
pushed Moore to acknowledge the high statistical
probability of persons other than Panah and Parker
contributing to the stains, and that Moore could not even
“determine when th[e] stains were deposited.” Counsel also
remarked that Moore offered nothing more than
“inconclusive blood typing,” hypothesized that Moore
simply “construct[ed] some sort of theory whereby you can
link that blood to Mr. Panah or to the deceased,” and
26 PANAH V. CHAPPELL
questioned why the jury was “not offered DNA evidence.”
Notably, even one of the post-conviction reports described
the cross-examination of Moore as “reasonably successful.”
Similarly, we do not think there was anything in the
defense’s questioning of Dr. Heuser that would have
changed the outcome. There was nothing to rebut her
detailed testimony about Parker’s extensive injuries. Panah
instead alleges that he was prejudiced by counsel’s failure to
rebut Dr. Heuser’s assessment of the cause and time of death.
But at trial, counsel did flag concerns with this part of her
testimony. Thus, we agree with the district court’s
conclusion that, “in light of the ‘setting of a sexual assault,’”
further challenging Dr. Heuser’s testimony on the cause of
death “would have been no more palatable to the jury.”
As a result, the state court would not have unreasonably
determined that counsel’s casting-doubt strategy was
appropriate, even effective, and thus found a lack of
prejudice. With little to do about the State’s formidable
evidence against Panah, counsel still sought to inform the
jury of weaknesses in the experts’ testimony. See id. (“When
defense counsel does not have a solid case, the best strategy
can be to say that there is too much doubt about the State’s
theory for a jury to convict.”). And here the strategy even
seems to have been somewhat successful, as the jury rejected
the special circumstance allegation of oral copulation. Like
in the Napue analysis, this is probative evidence that the jury
did not give persuasive weight to the serology testimony,
presumably because of defense counsel’s strategy and cross-
examination.
Our analysis is further guided by Richter, in which the
Supreme Court rejected a similar ineffective assistance
claim based on counsel’s failure to present an expert to rebut
the State’s forensic evidence. Id. at 111–13. The Court’s
PANAH V. CHAPPELL 27
reasoning is almost entirely applicable here. Holding that
the petitioner was not prejudiced, the Court concluded that
there was little chance of a different outcome because the
post-conviction evidence did not exonerate petitioner and
because some of petitioner’s post-conviction evidentiary
concerns were already raised by counsel at trial before the
jury. The Court went on to determine – as is also applicable
here – that the petitioner also did not prove any likelihood of
a different outcome because he had done nothing to rebut the
other “sufficient conventional circumstantial evidence
pointing to [his] guilt.” 3 Id. at 113.
We do not hold that counsel should not have done more.
But, based on the particular facts before us, we recognize
there was “nothing more than a theoretical possibility” of a
different verdict. Id. at 112. The evidence of Panah’s guilt
was so strong that there remained an “ample basis for the
California Supreme Court to think any real possibility of
[Panah’s] being acquitted was eclipsed by the remaining
evidence pointing to guilt.” Id. at 113. Therefore, we affirm
the district court’s denial of Panah’s ineffective assistance
claim.
AFFIRMED.
3
Panah’s attempt to analogize his case to several out-of-circuit cases
falls short. For instance, in Elmore v. Ozmint, 661 F.3d 783, 871–72 (4th
Cir. 2011), the Fourth Circuit held that the petitioner was prejudiced by
counsel’s failure to investigate any of the prosecution’s forensic
evidence. But, there, “[t]he case was a real ‘who-done-it,’” and, with a
proper “investigation, the jury undeniably would have seen a drastically
different – and significantly weaker – prosecution case.” Id. at 861, 870.
None of that is true here.