Guy Rowland v. Kevin Chappell , 876 F.3d 1174 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUY KEVIN ROWLAND, No. 12-99004
Petitioner-Appellant,
D.C. No.
v. 3:94-cv-03037-
WHA
KEVIN CHAPPELL, Warden,
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted October 4, 2017
Seattle, Washington
Filed December 6, 2017
Before: Kim McLane Wardlaw, Richard R. Clifton,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
2 ROWLAND V. CHAPPELL
SUMMARY *
Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of
California state prisoner Guy Kevin Rowland’s 28 U.S.C.
§ 2254 habeas corpus petition challenging his conviction for
first degree murder and rape and his capital sentence.
The panel rejected Rowland’s contention that AEDPA,
and its highly deferential standard, does not apply to his case
because he filed a request for appointment of counsel and a
stay of execution before AEDPA’s effective date.
The panel held that Rowland’s trial attorneys were
deficient by retaining a psychiatrist for the penalty phase
only a few days before its start and by failing to prepare him
adequately, and it would be unreasonable for the California
Supreme Court to conclude otherwise. Under AEDPA’s
highly deferential standard of review, the panel held that the
California Supreme Court could have reasonably concluded
that Rowland was not prejudiced.
The panel held that the California Supreme Court
reasonably decided that Rowland’s counsel’s failure to call
as a witness at the penalty phase the woman to whom
Rowland confessed did not amount to deficient performance,
and that even if counsel’s performance was deficient, the
California Supreme Court reasonably decided that Rowland
had not shown prejudice.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ROWLAND V. CHAPPELL 3
The panel wrote that two statements by the prosecutor at
the penalty-phase closing argument were inappropriate, but
that, applying AEDPA’s extreme deference, the California
Supreme Court reasonably determined that neither statement
violated Rowland’s constitutional rights.
The panel held that the California Supreme Court’s
rejection of Rowland’s non-concurrent representation
conflict claim was neither contrary to, nor an unreasonable
application of, established federal law. The panel wrote that
even if successive representation could constitute an actual
conflict under established federal law, Rowland has not
demonstrated that any conflict due to his counsel’s personal
and professional relationship with a chief investigating
officer significantly affected counsel’s performance.
The panel declined to expand the certificate of
appealability to include an unexhausted claim that systemic
delay in the administration of California’s death penalty
renders executions arbitrary in violation of the Eighth
Amendment.
COUNSEL
Joel Levine (argued), Costa Mesa, California; Michael
Robert Levine (argued), Levine & McHenry LLC, Portland,
Oregon; for Petitioner-Appellant.
Alice B. Lustre (argued), Deputy Attorney General; Glenn
R. Pruden, Supervising Deputy Attorney General; Gerald A.
Engler, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Francisco, California; for Respondent-Appellee.
4 ROWLAND V. CHAPPELL
OPINION
OWENS, Circuit Judge:
California state prisoner Guy Kevin Rowland appeals
from the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition challenging his conviction for first
degree murder and rape and his capital sentence. We affirm.
I. BACKGROUND
A. Factual and Procedural History
On February 11, 1987, the State of California filed an
amended information charging Rowland with one count of
first degree murder (with the special circumstance that the
murder took place during the commission of rape) and one
count of rape. It alleged that Rowland had twelve prior
felony convictions, and that he was on parole when he
committed the offense.
On May 13, 1988, after the guilt phase of the trial, the
jury convicted Rowland of both first degree murder and rape,
and also found true the special circumstance allegation. On
June 6, 1988, after the penalty phase, the jury returned a
death sentence.
1. Guilt Phase Evidence
Evidence at trial established that on March 16, 1986,
Marion Geraldine (“Geri”) Richardson went to the “Wild
Idle” bar in Byron, Contra Costa County, California.
Richardson lived in Byron with her mother and worked as a
cook. She regularly snorted methamphetamine and
evidently had some with her that night.
ROWLAND V. CHAPPELL 5
Rowland, who was twenty-four years old at the time, was
also at the bar. Rowland socialized with Richardson for a
while. According to an off-duty bartender, Rowland was
“coming on” to Richardson, but she did not respond
positively and seemed to be “trying to ignore” him.
Before 10 p.m., Rowland left the bar alone, driving away
in his truck. Sometime later, Richardson told her friend that
she was not feeling well, had a terrible headache, and needed
to go home to get some sleep as she had to go to work early
the next morning. Richardson left the bar alone in her car.
Her car was later seen parked, empty and unlocked, at an odd
angle about half a block from the bar.
In the hours that followed, Rowland brutally beat
Richardson about the head, face, and elsewhere. He also
raped her. According to expert testimony, Richardson had a
bruise on her inner thigh which could have been caused by
someone using a knee to force her legs part. Rowland also
choked Richardson twice, killing her the second time.
Before her death, Richardson ingested a potentially lethal
dose of methamphetamine, which it appeared Rowland put
in her mouth. Rowland then hauled Richardson’s body in
his truck to Half Moon Bay in San Mateo County, dragged
her on the ground, and dumped her in the ocean.
The next morning, at about 7 a.m., Rowland went to the
house of his lover, Susan Lanet, in Livermore. He looked
disturbed and said he wanted to leave California. They
shared some methamphetamine he had evidently taken from
Richardson. Rowland soon admitted to Lanet that he had
killed Richardson. He asked Lanet whether she wanted
Richardson’s belongings, including a ring and make-up.
Lanet declined. Rowland then offered Lanet $20 to clean his
truck and remove “[b]lood and every strand of hair.” Lanet
pretended to accept, but instead called the police. Shortly
6 ROWLAND V. CHAPPELL
thereafter, Rowland was arrested as he attempted to flee. At
around 9:45 a.m., Richardson’s body was found at the base
of a cliff by Moss Beach near Half Moon Bay. Blood and
other evidence in Rowland’s truck tied him to Richardson’s
killing.
At the guilt phase of the trial, Rowland did not present
any evidence, call any witnesses, or take the stand. His
primary defense was that the evidence did not establish first
degree murder or rape. The jury returned a guilty verdict.
2. Penalty Phase Evidence
During the penalty phase of the trial, the State offered in
aggravation: (1) the circumstances of Rowland’s crimes
committed against Richardson (for which it relied on the
evidence already provided during the guilt phase);
(2) Rowland’s extensive prior violent criminal activity; and
(3) Rowland’s prior felony convictions.
As the State demonstrated to the jury, Rowland had an
egregious history of violence towards women:
On April 4, 1978, Rowland entered the home of a
sixty-three-year-old woman, whom he battered while
he attempted to escape. She suffered a crushed
vertebra and was hospitalized for eleven days.
On October 4, 1980, Rowland lured a twenty-six-
year-old woman out of a bar to a park with an offer
to share cocaine, and then assaulted, battered, and
raped her.
On November 7, 1980, Rowland, together with a
male partner, kidnapped two thirteen-year-old girls,
whom they lured into a truck with a false offer of a
ROWLAND V. CHAPPELL 7
ride. One girl escaped, but the two men raped the
other girl multiple times. Rowland helped his partner
rape the girl twice. Rowland himself raped her six
times, caused her to orally copulate him, sodomized
her twice, and fondled her. During the attack, he
repeatedly threatened to kill the girl if she resisted.
On March 11, 1986 (a few days before Richardson’s
murder), Rowland assaulted his stepsister with a
knife and threatened to kill her. Their dispute
involved the locking of a door, but the underlying
cause was apparently her antagonistic response to his
expressed romantic interest.
Also on March 11, 1986, Rowland assaulted,
threatened to kill, and may have raped a woman.
After Rowland, Lanet, and the woman used
methamphetamine together, Rowland offered to
drive the woman home. Instead, he drove her to the
top of a cliff that loomed over a body of water. At
the cliff, he pulled her out of the car, beat her, and
said he was going to kill her and throw her body off
the cliff. He told her to undress and she complied.
He continued to beat and choke her, and may have
raped her. He then drove her to his mother’s house,
where he kept her in the bathroom against her will.
Rowland called Lanet and admitted what he had
done. Rowland asked the woman to hold off calling
the police, and then he fled.
As to Rowland’s prior felony convictions, the State
established that Rowland was convicted of multiple counts
of kidnapping, rape, sodomy, and other felonies for the
vicious attack on the thirteen-year-old girls.
8 ROWLAND V. CHAPPELL
In mitigation, Rowland himself did not testify, but he
presented evidence of his family background, including
physical abuse and alcoholism. He was born into a middle
class family in 1961, and had one brother and two sisters.
His parents had a violent, alcoholic marriage. His mother
neglected and abused him, and twice attempted to drown him
in the bathtub as a baby. As a toddler, he experienced night
terrors and convulsions. At a young age, he commenced
psychotherapy and drug therapy. In school, he had learning
disabilities and behavioral problems. He started to abuse
alcohol and drugs, and proceeded to spend substantial time
in correctional facilities.
Rowland was diagnosed with different mental conditions
at various points in his life. For example, when he was six
or seven years old, he was diagnosed with hyperactivity. At
the time of trial, when he was twenty-six, Rowland was
diagnosed with borderline personality disorder. As
discussed further below, psychiatrist Dr. Hugh Ridlehuber
testified for Rowland at the penalty phase.
Rowland also offered the background of his family
members as mitigation evidence. His parents each came
from violent, sexually abusive, alcoholic backgrounds.
Rowland’s parents physically and/or sexually abused his
sister, and Rowland’s father abused his mother.
The jury returned a death sentence.
B. Post-Conviction Proceedings
On December 17, 1992, the California Supreme Court
affirmed Rowland’s conviction and death sentence. See
People v. Rowland, 841 P.2d 897 (Cal. 1992).
ROWLAND V. CHAPPELL 9
On March 7, 1994, Rowland filed his first habeas
petition in the California Supreme Court. His state habeas
petition was accompanied by supporting declarations,
including from Dr. Ridlehuber, who had testified for
Rowland in the penalty phase and now declared that he had
been hired by trial counsel “too late” to do an adequate
examination. The California Supreme Court summarily
denied the petition on the merits on June 1, 1994.
On August 26, 1994, Rowland filed a motion in federal
district court requesting appointment of counsel and a stay
of execution pending preparation of his finalized habeas
petition. On June 19, 1995, after counsel was appointed,
Rowland filed a motion for a further stay of execution, which
was accompanied by a partial list of non-frivolous issues to
be raised in the finalized petition. On June 28, 1996, after
the effective date of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), Rowland filed his finalized habeas
petition.
Rowland ultimately filed his operative third amended
habeas petition on November 19, 2007. On October 2, 2012,
the district court granted summary judgment in favor of the
State. The district court rejected Rowland’s argument that
AEDPA does not apply to his case. The district court also
denied a certificate of appealability (“COA”) on all of
Rowland’s claims.
Rowland then filed a timely appeal, and our court
granted a COA on a number of issues.
II. STANDARD OF REVIEW
We review de novo a district court’s denial of a habeas
petition and for clear error any factual findings made by the
10 ROWLAND V. CHAPPELL
district court. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir.
2014).
Under AEDPA, when a state court has decided a claim
on the merits, we may grant relief only if the adjudication
“(1) 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; or (2) resulted in a decision that was 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).
This standard is “highly deferential” and “difficult to
meet.” Harrington v. Richter, 562 U.S. 86, 102, 105 (2011)
(citations omitted). It “demands that state-court decisions be
given the benefit of the doubt.” Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam). AEDPA “reflects the
view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a
substitute for ordinary error correction through appeal.”
Harrington, 562 U.S. at 102–03 (citation omitted). An
unreasonable application of clearly established federal law
must be “objectively unreasonable, not merely wrong; even
clear error will not suffice.” White v. Woodall, 134 S. Ct.
1697, 1702 (2014) (internal quotation marks and citation
omitted). “Rather, ‘[a]s a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.’” Id.
(citation omitted).
Here, the California Supreme Court provided reasoned
decisions for denying some of Rowland’s claims, but
ROWLAND V. CHAPPELL 11
summarily denied others. For those claims where the state
court provided an adjudication on the merits, but without any
underlying reasoning, we must conduct an independent
review of the record to determine whether the state court’s
final resolution of the case constituted an unreasonable
application of clearly established federal law. See Greene v.
Lambert, 288 F.3d 1081, 1088–89 (9th Cir. 2002).
“Independent review of the record is not de novo review of
the constitutional issue, but rather, the only method by which
we can determine whether a silent state court decision is
objectively unreasonable.” Himes v. Thompson, 336 F.3d
848, 853 (9th Cir. 2003).
III. DISCUSSION
A. AEDPA Applies to Rowland’s Federal Habeas
Petition
We first address AEDPA’s application here. Rowland
contends that AEDPA is inapplicable because on August 26,
1994, before AEDPA’s effective date, he filed a request for
appointment of counsel and a stay of execution. At the time,
a Northern District of California local rule stated that such a
motion “shall be deemed to be a petition for writ of habeas
corpus with leave having been granted to amend the petition
upon appointment of counsel.” N.D. Cal. R. 296-8(b)
(1990). On the district court docket, “COURT STAFF”
labeled the entry as “PETITION FOR WRIT OF HABEAS
CORPUS.”
Also before AEDPA’s effective date, on June 19, 1995,
Rowland’s newly appointed counsel filed an application for
a stay of execution to permit preparation of a habeas petition,
which included a partial list of non-frivolous issues to be
raised in the petition. Again, at the time, the local rule stated
that “[i]f no filing was made under paragraph 8(b) above, the
12 ROWLAND V. CHAPPELL
specification of nonfrivolous issues required [for a new
counsel’s application for a temporary stay of execution] shall
be deemed to be a petition for writ of habeas corpus with
leave having been granted to amend the petition.” N.D. Cal.
R. 296-8(c) (1990).
AEDPA took effect on April 24, 1996. See Lindh v.
Murphy, 521 U.S. 320, 322, 327 (1997) (holding that
AEDPA does not apply to cases “pending” in federal court
on AEDPA’s effective date). On June 28, 1996, Rowland
filed his actual habeas petition seeking adjudication on the
merits of his claims. Nonetheless, Rowland argues AEDPA
does not govern his petition because of his pre-AEDPA
request for appointment of counsel and a stay of execution.
The Supreme Court has rejected a similar argument.
Woodford v. Garceau holds that AEDPA applies to a habeas
petition filed after AEDPA’s effective date, even if the
petitioner sought the appointment of counsel and/or a stay of
execution before AEDPA’s effective date. 538 U.S. 202,
205–06 (2003). The Supreme Court reasoned that:
[W]hether AEDPA applies to a state prisoner
turns on what was before a federal court on
the date AEDPA became effective. If, on that
date, the state prisoner had before a federal
court an application for habeas relief seeking
an adjudication on the merits of the
petitioner’s claims, then amended § 2254(d)
does not apply. Otherwise, an application
filed after AEDPA’s effective date should be
reviewed under AEDPA, even if other filings
by that same applicant—such as, for
example, a request for the appointment of
counsel or a motion for a stay of execution—
ROWLAND V. CHAPPELL 13
were presented to a federal court prior to
AEDPA’s effective date.
Id. at 207 (emphasis in original). The Court also noted that
a filing labeled “Specification of Non-Frivolous Issues” was
insufficient to “place the merits of respondent’s claims
before the District Court for decision” because “the
document simply alerted the District Court as to some of the
possible claims that might be raised by respondent in the
future.” Id. at 210 n.1. Thus, the Court concluded that for
AEDPA purposes “a case does not become ‘pending’ until
an actual application for habeas corpus relief is filed in
federal court.” Id. at 210.
Rowland argues that Garceau is distinguishable because
his pre-AEDPA request for appointment of counsel and stay
of execution was “deemed to be a petition for writ of habeas
corpus” under the local rule and designated on the docket as
a “PETITION FOR WRIT OF HABEAS CORPUS.” But
under Garceau, even if his pre-AEDPA filings are
considered a “petition for writ of habeas corpus,” they are
insufficient to preclude AEDPA’s application because they
did not place the “merits” of Rowland’s claims before the
district court for adjudication. 538 U.S. at 207, 210 n.1.
Thus, Garceau controls here. 1
1
We are also unpersuaded by Rowland’s argument that AEDPA
does not apply because he relied in good faith on the district court’s local
rule and docket entry which deemed his pre-AEDPA motion a petition
for writ of habeas corpus. An exception to good faith reliance exists
where a court lacks the power or discretion to take the action in question,
and Rowland provides no authority that would grant a court the power to
change AEDPA’s statutorily mandated standard of review. See Perry v.
Brown, 667 F.3d 1078, 1087 n.6 (9th Cir. 2012). Further, it would have
14 ROWLAND V. CHAPPELL
Accordingly, we conclude that AEDPA, and its highly
deferential standard of review, applies to Rowland’s case.
B. Ineffective Assistance of Counsel at Penalty Phase
Rowland argues that his attorneys were ineffective at the
penalty phase by failing to: (1) adequately prepare
psychiatrist Dr. Ridlehuber; and (2) call Lanet as a witness.
To prevail, Rowland must show both that his counsel was
deficient and that he was prejudiced as a result. Strickland
v. Washington, 466 U.S. 668, 687–88 (1984). Deficient
performance requires showing that “counsel’s representation
fell below an objective standard of reasonableness.” Id. at
688. Prejudice requires showing “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
The standards created by Strickland and AEDPA “are
both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (internal
citations omitted). Thus, under AEDPA, “[t]he pivotal
question is whether the state court’s application of the
Strickland standard was unreasonable.” Id. at 101.
1. Inadequate Preparation of Psychiatrist Dr.
Ridlehuber
Rowland contends that his trial attorneys contacted Dr.
Ridlehuber, a psychiatrist who testified at the penalty phase,
“too late” to perform an adequate evaluation and failed to
provide him with important medical records about
Rowland’s “traumatic birth,” and that as a result mitigating
been unreasonable for Rowland to rely on the local rule, which preceded
AEDPA by six years, to avoid AEDPA’s application.
ROWLAND V. CHAPPELL 15
psychiatric evidence was not discovered or presented.
Rowland raised this claim in his first state habeas petition,
which the California Supreme Court summarily denied.
Therefore, we must independently review the record to
determine the reasonableness of the California Supreme
Court’s decision. See Greene, 288 F.3d at 1088–89.
a. Background
Some background helps put this claim in context.
Rowland’s counsel began consulting mental health
professionals almost two years before Rowland’s trial. In
May 1986, defense counsel retained a psychiatrist who
examined Rowland, but concluded that there was no viable
mental defense in the guilt phase. In August 1986, defense
counsel also retained a psychologist, who conducted
psychological testing of Rowland. In addition, defense
counsel sent an investigator to interview a mental health
professional who had treated Rowland at the California
Medical Facility.
Defense counsel initially retained psychiatrist Dr.
Ridlehuber in February 1988 (approximately one month
before the guilt phase trial), to evaluate Rowland for
Attention Deficit Disorder (“ADD”) at the suggestion of the
other mental health experts. Dr. Ridlehuber examined
Rowland for four hours, and could not substantiate that he
had ADD.
Rowland’s trial began in March 1988. None of the
doctors testified for Rowland in the guilt phase.
Rowland was convicted on May 13, 1988, and then the
penalty phase began less than two weeks later on May 23.
On May 18, a few days before the penalty phase began,
defense counsel contacted Dr. Ridlehuber, informed him
16 ROWLAND V. CHAPPELL
that Rowland had been found guilty, and asked if he would
be able to testify as to the effect of Rowland’s childhood
circumstances on his adult personality. Defense counsel
spoke with Dr. Ridlehuber again on May 22, and then the
two consulted with another psychiatrist for two hours on
May 23. According to Dr. Ridlehuber’s declarations,
between May 21 and May 30, “while the penalty phase trial
was already in progress,” he performed a “more expansive,
however still inadequate, evaluation of Mr. Rowland
consisting of 14 hours of interview and nine hours of
research, review and analysis.” In addition to interviewing
Rowland, Dr. Ridlehuber reviewed multiple sources of
information, including Rowland’s family history,
information from a doctor who treated Rowland as a child,
reports from a defense investigator who had interviewed a
number of Rowland’s family members, and Rowland’s
treatment in the California Medical Facility.
On May 31, 1988, Dr. Ridlehuber testified for Rowland
at the penalty phase. Dr. Ridlehuber opined that Rowland
suffered from a borderline personality disorder, “a major
psychiatric disorder [that] can be just as disruptive as
schizophrenia.” But, he also testified that he found no
evidence of organic brain dysfunction or schizophrenia. In
addition, Dr. Ridlehuber testified that Rowland was very
vulnerable to rejection and his ability to handle interpersonal
relationships was severely impaired because of his abusive
and traumatic childhood. In his closing, the prosecutor
argued that the jury should “totally reject” Dr. Ridlehuber’s
opinion because his report had been “rushed together in a
week.”
Two Dr. Ridlehuber declarations supported Rowland’s
first state habeas petition. Dr. Ridlehuber stated that defense
counsel contacted him “too late” in the proceedings to
ROWLAND V. CHAPPELL 17
evaluate Rowland adequately. He stated that the “time
constraints under which [he] was working made it virtually
impossible to conduct anything other than the most general
type of testing.” He also stated that he did not have
Rowland’s complete medical records, particularly a medical
history form completed by Rowland’s mother when
Rowland was ten years old, which noted that within the first
four weeks of life he had “jaundice, blood transfusion,
convulsions, and an infection.”
Based on information he did not have at the time of trial,
such as the circumstances of Rowland’s “traumatic birth,”
Dr. Ridlehuber now thought there was a “very high
probability” that Rowland did have an organic brain
condition, “possib[ly]” Bipolar Affective Disorder,
“probably” fetal distress syndrome, and “quite possibly”
Attention Deficit Hyperactivity Disorder, Adult Residual
Form. Dr. Ridlehuber stated that if he had this additional
information, he would have performed further tests to
determine whether Rowland had organic brain damage. For
example, Dr. Ridlehuber now thought that Rowland “may”
have had damage in the “frontal lobe area of the brain,”
which he did not test at the time of trial.
b. Analysis
“To perform effectively in the penalty phase of a capital
case, counsel must conduct sufficient investigation and
engage in sufficient preparation to be able to ‘present[ ] and
explain[ ] the significance of all the available [mitigating]
evidence.’” Mayfield v. Woodford, 270 F.3d 915, 927 (9th
Cir. 2001) (en banc) (quoting Williams v. Taylor, 529 U.S.
362, 393, 399 (2000)). And, failure to timely prepare for the
penalty phase can constitute deficient performance. See
Williams, 529 U.S. at 395 (holding that counsel was deficient
at the penalty phase because he did not begin preparing until
18 ROWLAND V. CHAPPELL
“a week before the trial” and failed to uncover records of the
petitioner’s “nightmarish childhood”); Jells v. Mitchell,
538 F.3d 478, 493–94 (6th Cir. 2008) (holding that “[t]he
failure of [the petitioner’s] trial counsel to begin mitigation
preparations prior to the end of the culpability phase of [the]
trial was objectively unreasonable under Strickland”).
Rowland’s trial attorneys were deficient by retaining
Dr. Ridlehuber for the penalty phase only a few days before
its start and by failing to prepare him adequately, and it
would be unreasonable for the California Supreme Court to
conclude otherwise. See Bean v. Calderon, 163 F.3d 1073,
1078 (9th Cir. 1998) (holding that counsel was deficient by
delaying preparing penalty phase mitigating evidence,
including not contacting a mental health expert “to prepare
him for the penalty phase until a day or two before his
testimony”); Bloom v. Calderon, 132 F.3d 1267, 1277–78
(9th Cir. 1997) (holding that counsel was deficient by failing
to obtain a psychiatric expert until days before trial, and then
failing to adequately prepare the expert); see also Bond v.
Beard, 539 F.3d 256, 288 (3d Cir. 2008) (holding that
counsel was deficient in part because they “waited until the
eve of the penalty phase to begin their preparation” which
caused them to “fail[] to give their consulting expert
sufficient information to evaluate [the petitioner]
accurately,” and noting that under the professional norms
established by the American Bar Association, a mitigation
investigation should begin immediately and expeditiously).
Rowland’s counsel’s retention of mental health experts
for the guilt phase, including a brief evaluation of Rowland
by Dr. Ridlehuber for ADD, does not excuse their delay in
retaining an expert for the penalty phase. See Doe v. Ayers,
782 F.3d 425, 441 (9th Cir. 2015) (“Hiring an expert to
evaluate possible guilt-phase mental-state defenses does not
ROWLAND V. CHAPPELL 19
discharge defense counsel’s duty to prepare for the penalty
phase.”); Hendricks v. Calderon, 70 F.3d 1032, 1043–44
(9th Cir. 1995) (“[I]t does not follow that an investigation
sufficient to foreclose the possibility of a mental defense
necessarily forecloses the possibility of presenting evidence
of mental impairment as mitigation in the penalty phase.”).
Further, Rowland’s counsel’s tardy retention of Dr.
Ridlehuber opened up the prosecutor’s attack that Dr.
Ridlehuber’s report had been “rushed together in a week”
and therefore the jury should “totally reject” his opinion. See
Hovey v. Ayers, 458 F.3d 892, 928 (9th Cir. 2006) (holding
that counsel was deficient at the penalty phase in part by
failing to adequately prepare a psychiatric expert which
“would have prevented the prosecutor from portraying [the
expert] as ill-prepared and foolish and thereby impugning his
medical conclusions”).
But to prevail, Rowland must show that Dr. Ridlehuber’s
testimony and report, prepared with sufficient time and
resources, would satisfy the onerous AEDPA standard for a
claim of ineffective assistance of counsel. He cannot. Under
AEDPA’s highly deferential standard of review, the
California Supreme Court could have reasonably concluded
that Rowland was not prejudiced by his counsel’s deficient
preparation of Dr. Ridlehuber for the penalty phase.
Dr. Ridlehuber merely speculates that Rowland possibly has
organic brain damage and other mental health conditions.
The California Supreme Court could have reasonably
determined that the limited value of additional testimony
from Dr. Ridlehuber about Rowland’s mental diagnoses
would not have changed the outcome of the penalty phase
when weighed against the aggravating evidence of
Rowland’s brutal rape and murder of Richardson, and
Rowland’s egregious criminal record of multiple sexual
20 ROWLAND V. CHAPPELL
assaults and violent attacks, including repeatedly raping a
kidnapped 13-year-old girl. See Wiggins v. Smith, 539 U.S.
510, 534 (2003) (“In assessing prejudice, we reweigh the
evidence in aggravation against the totality of available
mitigating evidence.”); see also Wong v. Belmontes,
558 U.S. 15, 26 (2009) (per curiam) (holding in a capital
case that there was no prejudice due to counsel’s failure to
introduce more mitigating evidence because the aggravating
evidence was “simply overwhelming” (citation omitted)).
Thus, giving the California Supreme Court the “benefit
of the doubt” as we must under AEDPA, it reasonably
rejected Rowland’s ineffective assistance of counsel claim
regarding the preparation of Dr. Ridlehuber for the penalty
phase. Visciotti, 537 U.S. at 24. Accordingly, we affirm the
district court’s denial of relief on this claim.
2. Not Calling Lanet as a Witness at the Penalty
Phase
Rowland argues that he was denied effective assistance
of counsel because his attorneys failed to call Lanet (the
woman he confessed to) to testify at the penalty phase about
Rowland’s statements describing his argument with
Richardson before he killed her. He contends that such
evidence would have shown that he killed Richardson after
an argument about drugs and her negative opinion of felons,
rather than as part of a rape.
The California Supreme Court denied this claim in a
reasoned decision on direct appeal:
Counsel’s performance was not deficient
because the [failure to call Lanet at the
penalty phase] was not unreasonable. In
view of the evidence concerning the
ROWLAND V. CHAPPELL 21
circumstances of the present offenses
adduced at the guilt phase, counsel could
properly have declined to reopen the
matter—especially through a self-serving,
out-of-court statement by defendant.
Moreover, even if counsel’s performance had
been deficient, it could not have subjected
defendant to prejudice. There is no
reasonable probability that the introduction
of a statement of the sort here would have
affected the outcome.
Rowland, 841 P.2d at 920 (footnote omitted).
Rowland contends that Lanet’s testimony was critical
mitigating evidence because it would have explained his
motive for killing Richardson, cast doubt on whether the
murder occurred in the course of a rape, and showed that he
was not a wanton murderer deserving death. He notes that
the trial judge acknowledged, in making an evidentiary
ruling during the guilt phase, that Rowland’s statements
would “certainly, arguably . . . tend to support perhaps a
second degree murder, perhaps even a manslaughter
finding” because they “could be urged as a sudden quarrel,
support of that sort of theory.”
Rowland further contends that his trial counsel had no
strategic reason for failing to call Lanet as a witness at the
penalty phase. He concedes that it was reasonable at the
guilt phase for trial counsel, when cross-examining Lanet,
not to elicit testimony regarding Rowland’s statements about
the argument because it would have allowed the State to
introduce rebuttal evidence of Rowland’s prior criminal
record. But, the argument goes, this strategic reason would
not apply to the penalty phase because the State already had
22 ROWLAND V. CHAPPELL
introduced Rowland’s prior criminal record as aggravating
evidence.
However, the California Supreme Court reasonably
decided that Rowland’s counsel’s performance was not
deficient because his counsel could have made a strategic
decision to omit Lanet’s testimony at the penalty phase. See
Strickland, 466 U.S. at 689 (to show deficiency, a petitioner
must overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance” and “might be considered sound
trial strategy” under the circumstances (citation omitted)).
For example, his counsel may have reasonably concluded
that it would be harmful at the penalty phase to recall Lanet
and revisit the circumstances of Rowland’s brutal crime. In
addition, even if his counsel’s performance were deficient,
the California Supreme Court reasonably decided that
Rowland had not shown prejudice because there is no
reasonable probability that the limited value of Lanet’s
testimony would have changed the outcome of the penalty
phase, especially in light of his monstrous criminal history.
See id. at 694.
Accordingly, we affirm the district court’s denial of
relief on this claim.
C. Prosecutor’s Statements at Penalty Phase Closing
Argument
Rowland challenges two of the prosecutor’s statements
made in the penalty phase. While both statements were
inappropriate, we conclude that, applying AEDPA’s
extreme deference, the California Supreme Court reasonably
determined that neither statement violated Rowland’s
constitutional rights.
ROWLAND V. CHAPPELL 23
1. Personal Opinion About the Death Penalty
Rowland argues that the prosecutor violated due process
during his closing argument when he expressed his personal
belief that he would vote for the death penalty if he were on
the jury. Specifically, the prosecutor stated in his summation
asking the jury to impose the death penalty that “[I] never []
ask others to do what I would not feel is right, and what I
would not do myself” and “I would not ask you to do
something that I would not do.” Defense counsel asked “the
court to admonish the jury that they should not consider [the
prosecutor’s] personal feelings in arriving at the appropriate
penalty,” which the trial court refused to do.
The California Supreme Court denied this claim in a
reasoned decision on direct appeal:
We agree [with the trial court]. True, a
prosecutor may not “state his personal belief
regarding . . . the appropriateness of the death
penalty, based on facts not in evidence.”
(People v. Ghent (1987) 43 Cal. 3d 739, 772,
239 Cal. Rptr. 82, 739 P.2d 1250, italics in
original). But he may make a statement of
this sort if, as here, it is “based solely on the
facts of record.” (Ibid.) There is no
reasonable likelihood that the jury
understood the words otherwise. Of course,
“prosecutors should refrain from expressing
personal views which might unduly inflame
the jury against the defendant.” (Ibid.) The
views expressed by the prosecutor in this case
were not such.
Rowland, 841 P.2d at 924.
24 ROWLAND V. CHAPPELL
Like the district court, we disapprove of the prosecutor’s
comments, but conclude that the California Supreme Court’s
decision was not contrary to, or an unreasonable application
of, clearly established United States Supreme Court law, nor
was it an unreasonable determination of the facts.
A prosecutor’s improper comments violate the
Constitution only if they “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(citation omitted). “[I]t is not enough that the prosecutors’
remarks were undesirable or even universally condemned.”
Id. (internal quotation marks and citation omitted).
Rowland contends that under Supreme Court precedent,
a prosecutor may not express his personal beliefs,
irrespective of its basis on evidence in the record, because
“the prosecutor’s opinion carries with it the imprimatur of
the Government and may induce the jury to trust the
Government’s judgment rather than its own view of the
evidence.” United States v. Young, 470 U.S. 1, 18–19
(1985). However, in Young itself, the Court concluded that
“[a]lthough it was improper for the prosecutor to express his
personal opinion about respondent’s guilt,” the remarks did
not “undermine the fairness of the trial and contribute to a
miscarriage of justice” and thus did not require reversal. 2 Id.
2
Rowland also cites Berger v. United States, 295 U.S. 78, 88 (1935),
which noted that “improper suggestions, insinuations, and, especially,
assertions of personal knowledge [by the prosecutor] are apt to carry
much weight against the accused when they should properly carry none.”
But, Berger is different. There, the prosecutor made improper statements
that referred to his personal knowledge based on evidence outside the
record, which required reversal because the case against the defendant
was weak and the prosecutor’s misconduct was not “slight or confined
to a single instance, but . . . pronounced and persistent, with a probable
ROWLAND V. CHAPPELL 25
at 19–20. Likewise here, the prosecutor’s improper remarks
expressing his personal opinion about the appropriateness of
the death penalty for Rowland did not undermine the
fundamental fairness of the trial.
Rowland also relies on Weaver v. Bowersox, 438 F.3d
832, 840–41 (8th Cir. 2006), in which the Eighth Circuit held
that a petitioner was entitled to habeas relief based in part on
the prosecutor’s improper statements during closing
argument in the penalty phase “about his personal belief in
the death penalty.” Weaver reasoned that “[s]tatements
about the prosecutor’s personal belief in the death penalty
are inappropriate and contrary to a reasoned opinion by the
jury,” and noted that “[a] prosecutor should not emphasize
his or her position of authority in making death penalty
determinations because it may encourage the jury to defer to
the prosecutor’s judgment.” Id.; see also Bates v. Bell, 402
F.3d 635, 644 (6th Cir. 2005) (“In the capital sentencing
context, prosecutors are prohibited from expressing their
personal opinion as to the existence of aggravating or
mitigating circumstances and the appropriateness of the
death penalty. Jurors are mindful that the prosecutor
represents the State and are apt to afford undue respect to the
prosecutor’s personal assessment.”).
Here, however, the prosecutor’s statements that “[I]
never [] ask others to do what I would not feel is right, and
what I would not do myself” and “I would not ask you to do
something that I would not do” do not rise to the level of the
statements in Weaver. For example, in Weaver, unlike here,
the prosecutor made a litany of improper statements,
including that that he “had a special position of authority and
cumulative effect upon the jury which cannot be disregarded as
inconsequential.” Id. at 88–89.
26 ROWLAND V. CHAPPELL
decided whether to seek the death penalty.” 438 F.3d at 840;
cf. Barnett v. Roper, 541 F.3d 804, 813 (8th Cir. 2008)
(denying habeas relief based on prosecutor’s statement
during her penalty phase opening argument that “if those
[murders] don’t [warrant imposition of the death penalty], I
don’t know what does” because her comment “does not
compare in polemical stridency with those [in other cases,
including Weaver,] and was not so outrageous or prejudicial
as to warrant a sua sponte declaration by the trial court of a
mistrial, nor did it inject such unfairness into the penalty
phase that [the petitioner] was denied due process of law”).
Moreover, the Supreme Court has emphasized that “the
Darden standard is a very general one, leaving courts ‘more
leeway . . . in reaching outcomes in case-by-case
determinations[.]’” Parker v. Matthews, 567 U.S. 37, 48
(2012) (per curiam) (citation omitted). In Parker, the Court
reversed the Sixth Circuit’s grant of habeas relief based on
the prosecutor’s alleged violation of Darden by suggesting
in closing argument that the petitioner had colluded with his
counsel and an expert to manufacture an extreme emotional
disturbance defense. Id. at 45–48. The Court held that the
Sixth Circuit overlooked the context of the prosecutor’s
comment, and that “even if the comment is understood as
directing the jury’s attention to inappropriate considerations,
that would not establish that the Kentucky Supreme Court’s
rejection of the Darden prosecutorial misconduct claim ‘was
so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” Id. at 47 (citation
omitted). The Court noted that “Darden itself held that a
closing argument considerably more inflammatory than the
one at issue here did not warrant habeas relief.” Id. at 47–48
(citing Darden, 477 U.S. at 180 n.11 (prosecutor referred to
the defendant as an “animal”); id. at 180 n.12 (“I wish I could
ROWLAND V. CHAPPELL 27
see [the defendant] with no face, blown away by a
shotgun”)). Thus, the Court concluded that “the Sixth
Circuit had no warrant to set aside the Kentucky Supreme
Court’s conclusion.” Id. at 48.
Here, the California Supreme Court’s rejection of
Rowland’s Darden claim based on the prosecutor’s
statements expressing his personal opinion about the
appropriateness of the death penalty was not “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 47 (citation omitted).
Furthermore, any prosecutorial misconduct amounting
to a constitutional violation was harmless because it did not
have a “substantial and injurious effect” on the jury’s verdict
for death. Parle v. Runnels, 387 F.3d 1030, 1044 (9th Cir.
2004) (“Even if a state court decision is ‘contrary to’ or
‘involved an unreasonable application of’ clearly established
federal law, a habeas court may grant relief only if petitioner
shows that the error had a ‘substantial or injurious effect’ on
the verdict.” (quoting Brecht v. Abrahamson, 507 U.S. 619,
637–38 (1993)). Rowland’s egregious criminal history
spoke louder than anything the prosecutor said.
Accordingly, we affirm the district court’s denial of
relief on this claim.
2. California Voters’ Approval of the Death
Penalty
Rowland also contends that the prosecutor committed
Caldwell error and violated due process by referencing
California voters’ “overwhelming” support for the death
penalty and the ouster of three California Supreme Court
justices because they failed to enforce the death penalty.
28 ROWLAND V. CHAPPELL
The California Supreme Court denied this claim in a
reasoned decision on direct appeal:
[D]efendant complains of certain
unobjected-to comments in the prosecutor’s
summation that allegedly misled the jury on
its role in determining penalty.
In context, the message the prosecutor
delivered was this: the jurors’ function was
judicial, not legislative; they had to decide
whether the death penalty was the
appropriate punishment in this case, not
whether it should be available as a sanction
in general. That message, of course, was
altogether sound.
We do not overlook—and certainly do
not approve—such remarks as this: “We had
a recent election in which several of our
Supreme Court justices were perceived by
the voters not to be applying [the death
penalty] law. They are gone now. There’s
no question that it is the policy expressed by
the will of the populace that there be a death
penalty in California, and that it be carried
out in appropriate cases.” Or this: “[T]he
voters overwhelmingly approved the death
penalty. . . .”
Nevertheless, there is no reasonable
likelihood that the jury understood the
challenged remarks as defendant asserts—
and surely not in such a way as to “minimize
[its] sense of responsibility for determining
ROWLAND V. CHAPPELL 29
the appropriateness of death” in violation of
the Eighth Amendment to the United States
Constitution as construed in Caldwell v.
Mississippi (1985) 472 U.S. 320, 341.
Rowland, 841 P.2d at 921–22 (parallel citations omitted).
Again, while we disapprove of the prosecutor’s
comments, we conclude that the California Supreme Court’s
decision was not contrary to, or an unreasonable application
of, clearly established United States Supreme Court law, nor
was it an unreasonable determination of the facts.
In Caldwell, the Supreme Court held that “it is
constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to
believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere.”
472 U.S. at 328–29. The Court vacated the death sentence
because the prosecutor had improperly “sought to minimize
the jury’s sense of responsibility for determining the
appropriateness of death” by leading the jury “to believe that
responsibility for determining the appropriateness of a death
sentence rests not with the jury but with the appellate court
which later reviews the case.” Id. at 323, 341.
Rowland argues that the prosecutor’s comments violated
Caldwell because they led the jury to believe that
responsibility for determining the appropriateness of his
death sentence rested not with the jury but with the voters of
California who had overwhelmingly approved the death
penalty. However, under AEDPA’s highly deferential
standard of review, the California Supreme Court reasonably
determined that there was no Caldwell error because, in
context, the prosecutor’s remarks did not “minimize the
jury’s responsibility for determining the appropriateness of
30 ROWLAND V. CHAPPELL
death,” but rather conveyed that the jury’s responsibility was
not to determine whether the death penalty should be
available as a sanction in general. 472 U.S. at 341; cf.
Campbell v. Kincheloe, 829 F.2d 1453, 1460–61 (9th Cir.
1987) (holding that the prosecutor’s remark that it was not
the jury’s duty to “debate the death penalty” was merely a
“general comment on the validity of the death penalty per
se” and did not constitute Caldwell error). Nor did the
prosecutor’s comments, even if they were “undesirable” or
“universally condemned,” “so infect[] the trial with
unfairness as to make the resulting [death sentence] a denial
of due process.” Darden, 477 U.S. at 181 (citations
omitted). And, again, any prosecutorial misconduct
amounting to a constitutional violation was harmless
because it did not have a “substantial and injurious effect”
on the jury’s verdict for death. Parle, 387 F.3d at 1044.
Accordingly, we affirm the district court’s denial of
relief on this claim. 3
3
Rowland also argues that his counsel was ineffective by failing to
object to the prosecutor’s remarks about California voters. The
California Supreme Court denied this claim on the merits in a reasoned
decision. Rowland, 841 P.2d at 924 n.19. This decision was not contrary
to, or an unreasonable application of, clearly established United States
Supreme Court law, nor was it an unreasonable determination of the
facts. Under the double deference afforded by AEDPA and Strickland,
Rowland’s counsel was not deficient, and Rowland was also not
prejudiced by his counsel’s failure to object.
Rowland’s reliance on Zapata v. Vasquez, 788 F.3d 1106 (9th Cir.
2015), is misplaced. Zapata granted habeas relief based on the trial
counsel’s failure to object to the prosecutor’s incorrect, inflammatory,
and irrelevant remarks in closing argument. See id. at 1112–17. This
court noted that, in considering whether trial counsel was deficient by
failing to object, “our task is made easy because the California Court of
ROWLAND V. CHAPPELL 31
D. Right to Conflict-Free Counsel
Rowland contends that one of his trial attorneys had an
undisclosed conflict of interest. Rowland raised this claim
in his first state habeas petition, and the California Supreme
Court summarily denied it. Therefore, we must
independently review the record to determine whether the
California Supreme Court’s decision was reasonable. See
Greene, 288 F.3d at 1088–89.
Specifically, Rowland alleges that his counsel, Charles
Pierpoint, had a close personal and professional relationship
with Detective Singleton, a chief investigating officer and
testifying witness in the case against Rowland. Pierpoint
knew Detective Singleton from his time as a Deputy District
Attorney in the San Mateo District Attorney’s Office.
According to Rowland, they remained friends during the
time of Rowland’s trial. Further, Pierpoint or his legal
partner had represented Detective Singleton in several civil
suits, including a divorce action. Pierpoint’s representation
of Detective Singleton terminated before Rowland’s trial.
Under the Sixth Amendment, “[w]here a constitutional
right to counsel exists, . . . there is a correlative right to
representation that is free from conflicts of interest.” Wood
Appeal itself concluded ‘the prosecutor committed serious
misconduct.’” Id. at 1112. However, Zapata is distinguishable because
here the California Supreme Court did not find that the prosecutor
committed “serious misconduct” by making incorrect, inflammatory,
and irrelevant remarks. Rather, although it disapproved of the remarks,
the California Supreme Court found that the prosecutor’s message was
“sound” and did not mislead the jury. Rowland, 841 P.2d at 921.
Accordingly, we affirm the district court’s denial of relief on this
claim.
32 ROWLAND V. CHAPPELL
v. Georgia, 450 U.S. 261, 271 (1981). To establish a Sixth
Amendment violation based on a conflict of interest, “a
defendant who raised no objection at trial must demonstrate
that an actual conflict of interest adversely affected his
lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335,
348 (1980). An “actual conflict” means “a conflict of
interest that adversely affects counsel’s performance,” rather
than “a mere theoretical division of loyalties.” Mickens v.
Taylor, 535 U.S. 162, 171, 172 n.5 (2002). When this
standard is met, prejudice is presumed because the
“assistance of counsel has been denied entirely or during a
critical stage of the proceeding.” Id. at 166. In other words,
it is an exception to the usual requirement to show Strickland
prejudice for a Sixth Amendment violation. Id.
Rowland argues that there was an “actual conflict,” and
thus a presumption of prejudice, based on his attorney
Pierpoint’s relationship with Detective Singleton. However,
in Mickens, the Supreme Court explicitly limited this
presumption of prejudice for an actual conflict of interest
(also known as the “Sullivan exception”) to cases involving
“concurrent representation.” Id. at 175; see also Earp v.
Ornoski, 431 F.3d 1158, 1184 (9th Cir. 2005) (“The Mickens
Court specifically and explicitly concluded that Sullivan was
limited to joint representation[.]”). The Court explained that
the presumption of prejudice was needed in these situations
because of “the high probability of prejudice arising from
multiple concurrent representation, and the difficulty of
proving that prejudice,” and noted that “[n]ot all attorney
conflicts present comparable difficulties.” Mickens,
535 U.S. at 175. The Court chastised the circuit courts for
applying “Sullivan ‘unblinkingly’ to ‘all kinds of alleged
attorney ethical conflicts,’” invoking it in cases involving
former clients and personal or financial interests. Id. at 174
(citation omitted). The Court explicitly stated that
ROWLAND V. CHAPPELL 33
“[w]hether Sullivan should be extended to [successive
representation] cases remains, as far as the jurisprudence of
this Court is concerned, an open question.” Id. at 176.
Accordingly, the Court concluded that the Sullivan
presumption of prejudice did not apply to a conflict of
interest rooted in the petitioner’s counsel’s previous brief
representation of the victim. See id. at 164–65, 175–76.
We have held that a state court’s rejection of a conflict
claim not stemming from concurrent representation is
neither contrary to, nor an unreasonable application of,
established federal law as determined by the United States
Supreme Court. See, e.g., Foote v. Del Papa, 492 F.3d 1026,
1029 (9th Cir. 2007) (holding that the state court did not
unreasonably reject a conflict claim because the Supreme
Court has not “held that a defendant states a Sixth
Amendment claim by alleging that appointed appellate
counsel had a conflict of interest due to the defendant’s
dismissed lawsuit against the public defenders office and
appointed pre-trial counsel”); Earp, 431 F.3d at 1184
(holding that the state court did not unreasonably reject a
conflict claim arising from the petitioner’s counsel
developing a romantic relationship with the petitioner
culminating in their marriage because “[t]he Supreme Court
has never held that the Sullivan exception applies to conflicts
stemming from intimate relations with clients”). Likewise
here, the California Supreme Court’s rejection of Rowland’s
non-concurrent representation conflict claim was neither
contrary to, nor an unreasonable application of, established
federal law.
We acknowledge that we have previously stated that “[i]t
is clearly established by Supreme Court precedent that
‘successive representation’ may pose an actual conflict of
interest because it may have an adverse [e]ffect on counsel’s
34 ROWLAND V. CHAPPELL
performance.” Alberni v. McDaniel, 458 F.3d 860, 872, 874
(9th Cir. 2006) (citing Mickens, 535 U.S. at 175–76)
(remanding for an evidentiary hearing on a conflict claim
arising from the petitioner’s representation by counsel who
cross-examined a prosecution witness who was a former
criminal client in a related case and noting that “[s]hould the
district court conclude that an actual conflict of interest
existed, [the petitioner] need not show prejudice”); but see
id. at 874–76 (McKeown, J., concurring in part and
dissenting in part) (disagreeing with majority relieving the
petitioner of showing prejudice for a successive
representation claim, “an approach—as explained in
Mickens []—that has not been established by Supreme Court
precedent”). 4 However, unlike here, Alberni did not involve
prior representation in unrelated civil matters.
Moreover, even if successive representation could
constitute an actual conflict under established federal law,
Rowland has not demonstrated that any conflict due to his
counsel Pierpoint’s relationship with Detective Singleton
“significantly affected counsel’s performance.” Mickens,
535 U.S. at 172–73. Rowland argues that “Pierpoint’s
closing argument—specifically his gratuitous vouching to
the jury of Singleton’s honesty and integrity—is powerful
4
See also Houston v. Schomig, 533 F.3d 1076, 1081–83 (9th Cir.
2008) (remanding for an evidentiary hearing on a conflict claim arising
from the petitioner’s representation by another member of the same
public defender’s office that previously had represented a victim and key
prosecution witness, and stating that “[c]onflicts can . . . arise from
successive representation, particularly when a substantial relationship
exists between the cases, such that the ‘factual contexts of the two
representations are similar or related’” but noting that “[t]he Supreme
Court . . . has left open the question whether conflicts in successive
representation that affect an attorney’s performance require a showing of
prejudice for reversal” (citation omitted)).
ROWLAND V. CHAPPELL 35
evidence that trial counsel had an actual conflict that
adversely affected his performance.” In particular, Rowland
criticizes Pierpoint’s statement that Detective Singleton and
his partner Detective Dirickson “are highly credible, honest,
hard working, diligent police officers. And I urge you to
believe everything they said.”
However, when read in context, this statement does not
show that Pierpoint was adversely affected by his
relationship with Detective Singleton. Pierpoint’s praise
was directed more at Detective Dirickson, and only
mentioned Detective Singleton in passing. And, Pierpoint’s
praise of Detective Dirickson was part of his attempt to cast
doubt on Lanet’s credibility, and thus on Rowland’s
confession and the physical evidence she provided.
Therefore, the California Supreme Court could conclude that
Pierpoint’s praise of Detective Dirickson (and by association
Detective Singleton) was a reasonable tactical choice to
attack the State’s case. 5
Accordingly, under AEDPA’s highly deferential
standard, the California Supreme Court reasonably rejected
5
This case is not affected by our recent decision in United States v.
Walter-Eze, 869 F.3d 891 (9th Cir. 2017). That case “[a]ssum[ed]
without deciding that Sullivan’s rule of presumed prejudice as a matter
of law can extend to a case of a pecuniary conflict” and held that even
though there was an actual conflict, “under the facts presented, Sullivan
does not control this case” and there was not a presumption of prejudice
because, unlike with joint representation, “the actual conflict [was]
relegated to a single moment of the representation and resulted in a single
identifiable decision that adversely affected the defendant[.]” Id. at 900,
906. In contrast, this case does not involve an alleged pecuniary conflict
or an “actual conflict.”
36 ROWLAND V. CHAPPELL
Rowland’s conflict of interest claim, and we affirm the
district court’s denial of habeas relief. 6
E. Uncertified Issue
Finally, we deny a COA on the one uncertified issue
Rowland raises on appeal. Rowland argues that systemic
delay in the administration of California’s death penalty
renders any ensuing executions arbitrary, and thus in
violation of the Eighth Amendment, which is known as a
“Jones claim.” See Jones v. Chappell, 31 F. Supp. 3d 1050
(C.D. Cal. 2014), rev’d sub nom. Jones v. Davis, 806 F.3d
538 (9th Cir. 2015).
This claim is unexhausted. Rowland argues that his
failure to exhaust should be excused because raising the
claim in state court would be futile. However, as Rowland
acknowledges, we rejected the same argument in Alfaro v.
Johnson, 862 F.3d 1176, 1180–83 (9th Cir. 2017). 7
6
In his reply brief, Rowland argues for the first time that “[e]ven if
none of the foregoing errors by itself warrants relief, the cumulative
errors do.” Rowland has waived this argument by not raising it in his
opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Moreover, there is no cumulative error which warrants reversal.
7
There may be some tension in our case law regarding whether
exhaustion of a Lackey claim—which asserts that delay in a defendant’s
individual case between judgment and execution constitutes an Eighth
Amendment violation, see Lackey v. Texas, 514 U.S. 1045 (1997)
(Stevens, J., mem. op. respecting denial of cert.)—also serves to exhaust
a Jones claim. Compare Alfaro, 862 F.3d at 1184 (“The key
distinguishing factor between Lackey and Jones claims is that the latter
concern systemic delay that creates arbitrariness in executions.”) and
Jones, 806 F.3d at 554 (Watford, J., concurring) (“Presenting the Lackey
claim to the California Supreme Court . . . did not satisfy the exhaustion
requirement.”) with Andrews v. Davis, 866 F.3d 994, 1039 (9th Cir.
ROWLAND V. CHAPPELL 37
Accordingly, we decline to expand Rowland’s COA.
AFFIRMED.
2017) (holding that the petitioner’s reference to Jones on appeal did not
fundamentally alter his Lackey claim, and therefore exhaustion of his
Lackey claim “likewise exhausted his current challenge”). However, any
tension is not implicated here as Rowland did not raise a Lackey claim
in either state or federal court.