Dean Carter v. Kevin Chappell ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEAN PHILLIP CARTER, No. 13-99003
Petitioner-Appellant,
D.C. No.
v. 2:06-cv-04532-RGK
RON DAVIS, Warden, San
Quentin State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
DEAN PHILLIP CARTER, No. 13-99007
Petitioner-Appellant,
D.C. No.
v. 3:06-cv-01343-BEN-
KSC
RON DAVIS, Warden, San
Quentin State Prison,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
2 CARTER V. DAVIS
Argued and Submitted March 28, 2019
San Francisco, California
Filed December 26, 2019
Before: Johnnie B. Rawlinson, Richard R. Clifton,
and Jay S. Bybee, Circuit Judges.
Per Curiam Opinion
SUMMARY*
Habeas Corpus / Death Penalty
In appeals arising from Dean Phillip Carter’s habeas
corpus petitions challenging his convictions and death
sentences in separate cases in Los Angeles and San Diego
Counties, the panel (1) affirmed district court judgments in
the Central and Southern Districts of California denying his
petitions; (2) granted, as to one claim in the Central District,
Carter’s supplemental motion to expand the certificate of
appealability; and (3) otherwise denied the supplemental
motion to expand the certificate of appealability.
The Central District certified two claims for review:
(1) that an irreconcilable conflict between Carter and trial
counsel resulted in a denial of his Sixth Amendment rights,
and (2) that trial counsel rendered ineffective assistance
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CARTER V. DAVIS 3
because they refused to allow Carter to testify in his own
defense.
• The panel held that even if Carter were able to
demonstrate a complete breakdown in communication or
prove that an irreconcilable conflict with trial counsel
existed under this circuit’s precedent, his irreconcilable-
conflict claim would fail because the U.S. Supreme Court
has never held that an irreconcilable conflict with one’s
attorney constitutes a per se denial of the right to effective
counsel. The panel explained that this proves fatal to
Carter’s claim because AEDPA conditions habeas relief
on a determination that the state-court decision
unreasonably applied “clearly established Federal law” as
pronounced by the U.S. Supreme Court.
• The panel held that the California Supreme Court
reasonably determined that counsel did not perform
deficiently by refusing to let Carter testify, and that even
if counsel performed deficiently by refusing to do so, the
California Supreme Court’s determination that Carter
cannot show prejudice was not an unreasonable
application of law.
The Southern District certified two claims for review:
(1) that Carter’s trial counsel rendered ineffective assistance
at the penalty phase, and (2) that Carter was deprived of his
right to the competent assistance of a psychiatric expert.
• The panel held that Carter failed to establish that the
California Supreme Court was unreasonable in denying
relief on his contentions that counsel performed
deficiently (a) by focusing on the positive aspects of
Carter’s career and family life as a result, rather than
4 CARTER V. DAVIS
giving greater emphasis to his traumatic childhood; and
(b) by failing to conduct an adequate investigation into
Carter’s mental health, including the possibility that he
suffered from fetal alcohol syndrome.
• The panel held that Carter failed to establish that Ake v.
Oklahoma, 470 U.S. 68 (1985), or any other U.S.
Supreme Court decision would cause jurists of reason to
disagree with the reasonable arguments in support of the
California Supreme Court’s denial of his claim that he
was deprived of the right to competent assistance of a
psychiatric expert at trial. The panel wrote that, as Carter
conceded, the U.S. Supreme Court has never interpreted
Ake to guarantee a due process right to effective expert
assistance at trial.
The panel issued a certificate of appealability on one
claim, not certified by the Central District, alleging
ineffective assistance of counsel at the penalty phase. The
panel affirmed the denial of relief on that claim because the
California Supreme Court’s determination that counsel
satisfied the deferential standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), is not contrary to or an
unreasonable application of federal law. The panel wrote that
the California Supreme Court may reasonably have
concluded that the investigation supporting counsel’s decision
not to introduce more mitigating evidence was reasonable,
and that even if Carter’s defense team performed deficiently,
the California Supreme Court could reasonably have
concluded that Carter was not prejudiced by their
performance.
CARTER V. DAVIS 5
The panel denied a certificate of appealability as to the
rest of the claims not certified by the Southern and Central
District Courts.
COUNSEL
Michael D. Weinstein (argued) and Mark Yim, Deputy
Federal Public Defenders; Hilary Potashner, Federal Public
Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.
Annie Featherman Fraser (argued), Deputy Attorney General;
Holly D. Wilkens, Supervising Deputy Attorney General;
Julie L. Garland, Senior Assistant Attorney General; Gerald
A. Engler, Chief Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San Diego,
California; for Respondent-Appellee.
OPINION
PER CURIAM:
In separate proceedings in Los Angeles and San Diego,
Dean Phillip Carter (Carter) was convicted of murder, rape,
robbery, and burglary and sentenced to death. Carter filed
petitions for writs of habeas corpus in the United States
District Courts for the Central District of California and for
the Southern District of California. The district courts denied
Carter’s petitions.
6 CARTER V. DAVIS
In appeal No. 13-99003, we affirm the judgment of the
Central District and deny Carter’s motion to expand the
certificate of appealability (COA) as to all claims except
claim 6, regarding ineffective assistance of counsel at the
penalty phase.
In appeal No. 13-99007, we affirm the judgment of the
Southern District and deny Carter’s motion to expand the
COA.
I. BACKGROUND
Carter stood trial in Los Angeles County and San Diego
County for charges stemming from a crime spree throughout
California in Spring 1984. In the Los Angeles proceedings,
Carter was accused of the rape and murder of Bonnie Guthrie
and the burglary of her residence; and of the murder of Susan
Knoll, rape and murder of Jillette Mills, and the burglary of
their shared residence. In San Diego County, Carter was
accused of the murder and robbery of Janette Cullins and the
burglary of her residence; and of the rape, forcible oral
copulation, and robbery of B.S.1 and the burglary of her
residence. In both the Los Angeles and San Diego
proceedings, prosecutors also introduced evidence of Carter’s
prior convictions for rape, robbery, and assault of J.S. in
Ventura County, and of his connection to the murder of Tok
Kim in Alameda County. The crimes occurred over four
1
We identify living victims of sex crimes only by their initials in this
opinion.
CARTER V. DAVIS 7
California counties over a period of about three weeks. We
describe them briefly and chronologically.2
A. The Crimes
On March 25, 1984, Carter broke into the San Diego
home of B.S. wielding a knife and demanded money. After
taking B.S.’s cash, he raped her, hog-tied her, and stole her
car.
On March 27, Carter raped J.S. at knifepoint in her
Ventura County apartment, cut her face, strangled her twice
to the point at which she lost consciousness, and stole cash
from her.3
On April 1, Carter met Tok Kim at a bar in Lafayette,
California, and offered to help her with car trouble. Over the
next two days, a service station manager named David Hogan
observed Carter and Kim at his station together. Hogan
observed that Carter was wearing sunglasses and a black
“Members Only” style jacket. On the night of April 10,
Kim’s neighbor heard Kim arguing in her Oakland apartment
with an unidentified man who was not her boyfriend. Kim’s
co-workers notified her apartment manager after Kim did not
appear for work on two consecutive days. On April 13, the
2
The facts set forth in this opinion are taken directly from the most
recent reasoned state-court decisions issued in the challenged proceedings:
People v. Carter, 117 P.3d 476 (Cal. 2005) (Los Angeles) and People v.
Carter, 117 P.3d 544 (Cal. 2005) (San Diego).
3
A Ventura County jury convicted Carter of the rape, robbery, and
assault of J.S. He does not seek relief from these convictions here.
However, prosecutors introduced evidence of these convictions in both of
Carter’s death penalty trials.
8 CARTER V. DAVIS
apartment manager found Kim’s body on her bedroom floor.
The pathologist who performed the autopsy could not
determine the cause of death because of the body’s advanced
stage of decomposition but testified that a curtain tie found
beneath her neck could have been used to strangle her. 4
On April 11, Culver City, California resident Susan Knoll
went absent from her job at a bank. Knoll’s co-worker took
a call from an unidentified man who informed her that Knoll
had been in a traffic accident and was being treated for minor
injuries at a hospital. The same day, after Knoll’s roommate
Jillette Mills failed to respond to her brother’s attempts to
contact her, the brother and a friend searched for Mills at her
apartment, place of employment, and college but were unable
to find Mills or her car. The two men then climbed a fence to
enter Mills’s and Knoll’s unlocked apartment and found the
bodies of both women stacked in the closet.
Investigators discovered Kim’s vehicle outside of Mills’s
and Knoll’s apartment. Inside the vehicle was a pair of
sunglasses, which Hogan identified as matching a pair he
observed Carter wearing at his station while with Kim.
Mills’s white Datsun was missing. Inside the apartment,
investigators retrieved a palm print matching Carter’s from
the bathroom sink. An autopsy determined that Knoll died of
manual strangulation and Mills died of ligature strangulation.
Both women also suffered injuries consistent with having
struggled against an assailant and had seminal fluid on their
genital areas. Mills additionally suffered injuries to her
genital area consistent with traumatic sexual assault.
4
Carter has never faced charges relating to Kim’s death. Prosecutors
introduced evidence of the circumstances surrounding her death, however,
in both of Carter’s death penalty trials.
CARTER V. DAVIS 9
Also on April 11, the manager of Bonnie Guthrie’s
apartment building in Los Angeles entered Guthrie’s
apartment with a repairman. Guthrie was Knoll’s best friend.
The manager observed Guthrie lying on her bedroom floor
and remarked to the repairman that she was sleeping. The
next day, the manager noticed Guthrie’s vehicle in the garage
and wondered why she had not gone to work. He entered the
apartment, observed Guthrie lying in the same position, and
notified police. An autopsy determined that Guthrie died of
ligature strangulation and that she had suffered injuries to her
genital area consistent with traumatic sexual assault. Two
days after the discovery of Guthrie’s body, a witness found
Guthrie’s wallet in a San Diego shipyard, approximately fifty
feet from a white Datsun matching the description of Mills’s
missing vehicle.
On April 12, Carter visited the San Diego apartment of
Janette Cullins and her roommate Cheri Phinney. Carter and
Cullins knew one another socially, and had met for drinks and
dinner with other friends on two occasions in February and
March 1984. On March 24, Carter had attempted to contact
Cullins through her friend Cathleen Tiner. When Tiner told
Cullins that Carter had called for her, Cullins became upset.
Cullins had also told her former roommate, Nancy
McEachern, that if Carter called for her she did not want to
speak with him. When Carter visited Cullins on April 12,
Cullins asked Phinney to come through the living room so
that Carter would be aware that someone else was in the
apartment. Carter left the apartment after an hour.
That evening, Cullins and Tiner attended the symphony
together. Cullins informed Tiner that Carter was back in
town. At 11:00 p.m., Cullins left Tiner’s apartment and was
never seen alive again. Between 11:15 and 11:30 p.m.,
10 CARTER V. DAVIS
Cullins’s neighbor observed a white Datsun matching the
description of Mills’s missing vehicle outside of Cullins’s
apartment. The neighbor observed the vehicle drive away at
11:30, nearly hitting another vehicle while making a U-turn
and running through a stop sign.
On April 13, Phinney and McEachern each attempted to
contact Cullins without success. At midday, McEachern
drove to Cullins’s apartment and encountered Carter, who
was driving a white Datsun. Carter asked McEachern if
Cullins was home. That evening, Carter unexpectedly visited
Tiner at her home and commented that Cullins had “stood
[him] up” that day. Tiner then unsuccessfully attempted to
contact Cullins.
The following day, Phinney and McEachern searched
Cullins’s apartment and found her partially clothed body in
her bedroom closet. A police investigation found damage to
the front door consistent with a forced entry. An autopsy
determined that Cullins died of ligature strangulation and that
she had sustained a wound consistent with the use of a sharp
knife either while she was dying or after she had died.
On the same day Cullins’s body was discovered, a
pedestrian found a wallet containing Cullins’s driver’s license
and credit cards in bushes next to a sidewalk on North Harbor
Drive in San Diego. The pedestrian testified that he had seen
a white Datsun matching the description of Mills’s missing
vehicle parked within one block of where he had found the
wallet during the same week. Later that day, police recovered
Guthrie’s purse from the same area of North Harbor Drive.
On April 17, an Arizona Highway Patrol officer observed
Mills’s white Datsun driving erratically on Interstate 40 in
CARTER V. DAVIS 11
Yavapai County, Arizona. The officer initiated a traffic stop
and discovered Carter alone in the vehicle with what
appeared to be a burnt marijuana cigarette and placed Carter
under arrest on suspicion of driving under the influence.
While searching the vehicle for marijuana, the officer
discovered Cullins’s bank identification card between the
driver’s seat and center console.
A full search of the vehicle recovered the following items:
a suitcase, Korean-made wood-handled knife, yellow rubber
gloves, and a gold chain, all belonging to Kim; a supermarket
card belonging to Knoll; towels, athletic wear, and
photographic equipment, all belonging to Mills; three hand-
woven sweaters belonging to Guthrie; a key ring belonging to
Cullins; a piece of paper with Cullins’s bank password
written on it; and a black “Members Only” jacket matching
the description of the jacket Hogan had seen Carter wearing
while with Kim. The jacket contained a butcher knife, a
knee-high nylon sock, and a business card from Hogan’s
service station.
Bank records revealed that all but $4.06 of Cullins’s bank
account balance had been withdrawn from an ATM on April
13, the day after she was last seen alive. A video of the
transaction showed a man wearing one of Guthrie’s sweaters
and a black jacket withdrawing the funds. A handwriting
expert testified that there were “very strong indications” that
Cullins had written the password on the slip of paper
recovered from the Datsun but also could neither eliminate
nor identify Carter as the writer.
12 CARTER V. DAVIS
B. Criminal Proceedings
1. Los Angeles County
The Los Angeles trial regarding the crimes against Knoll,
Mills, and Guthrie was bifurcated into guilt and penalty
proceedings. At the guilt phase, Carter’s counsel rested
without calling any witnesses or putting on a defense. Carter
was convicted on all counts. At the penalty phase, Carter’s
counsel presented an extensive mitigation case detailed
below. Carter was sentenced to death.
2. San Diego County
The San Diego trial, which followed his conviction in Los
Angeles County, was also bifurcated into guilt and penalty
proceedings regarding the murder of Cullins and the rape of
B.S. Carter stipulated before trial that he had been convicted
of the murders of Knoll, Mills, and Guthrie.
At the guilt phase, counsel put on a defense by calling
several witnesses. But the jury found Carter guilty of the
murder of Cullins, and found true the special circumstances
that the murder was committed while lying in wait, during the
commission of both a robbery and a burglary, and that Carter
had previously been convicted of the murders of Knoll, Mills,
and Guthrie. It further found Carter guilty of the robbery of
Cullins and the burglary of her residence and found that he
had inflicted great bodily injury during the course of these
crimes. The jury also found Carter guilty of the forcible rape,
forcible oral copulation, and robbery of B.S. and the burglary
of her residence, and determined that Carter had used a
deadly weapon (a knife) in the commission of each of his
crimes against B.S.
CARTER V. DAVIS 13
At the penalty phase, counsel presented a mitigation case
similar to that presented in the Los Angeles trial. The jury
returned a recommendation of the death penalty. The court
imposed a death sentence.
C. California Supreme Court Proceedings
Carter’s convictions and sentences were appealed to the
California Supreme Court. While those appeals were
pending, Carter filed his first round of state habeas petitions
in that court. In 2005, the California Supreme Court affirmed
the convictions and death sentences in two separate, reasoned
opinions. People v. Carter, 117 P.3d 476 (Cal. 2005) (Los
Angeles); People v. Carter, 117 P.3d 544 (Cal. 2005) (San
Diego). The court affirmed both judgments in their entirety
with the exception of the San Diego court’s finding of the
special circumstance of lying in wait on the Cullins murder
charge, which it set aside. Carter sought review of these
decisions in the Supreme Court of the United States, which
denied his petitions for writ of certiorari in 2006. Carter v.
California, 547 U.S. 1099 (2006) (mem.) (Los Angeles);
Carter v. California, 547 U.S. 1043 (2006) (mem.) (San
Diego).
In 2006, the California Supreme Court summarily denied
Carter’s habeas petitions on the merits. Carter filed two
subsequent rounds of state habeas petitions in 2007 and 2010.
The California Supreme Court summarily denied each of
those petitions on the merits in 2010.
D. Federal Habeas Proceedings
Carter initiated the instant proceedings in 2007. In a
petition for writ of habeas corpus filed in the United States
14 CARTER V. DAVIS
District Court for the Southern District of California, he
asserted seventeen claims for relief related to his San Diego
County trial. Two days later, he filed a petition for writ of
habeas corpus in the United States District Court for the
Central District of California, asserting seventeen additional
claims for relief related to his Los Angeles County trial.
Carter filed amended petitions in both federal district courts
in 2010, reducing the number of claims in his Southern
District petition to sixteen.
In 2013, the Central District of California published a
146-page order dismissing two of Carter’s claims without
prejudice and denying the rest of his claims on the merits.
The district court granted a COA on two of Carter’s claims:
that an irreconcilable conflict between Carter and trial
counsel resulted in a denial of his Sixth Amendment rights
(Certified Claim 1, and Claim 1 of the First Amended
Petition); and that trial counsel rendered ineffective assistance
because they refused to allow Carter to testify in his own
defense (Certified Claim 2, and Claim 5(D) of the First
Amended Petition). It denied a COA on the remaining
claims.
Later in 2013, the Southern District of California
published a 318-page order denying all claims on the merits.
The district court granted a COA on two claims: that trial
counsel had rendered ineffective assistance during the penalty
phase (Certified Claim 1, and Claim 3 of the Second
Amended Petition); and that Carter was deprived of his right
to the competent assistance of a psychiatric expert (Certified
Claim 2, and Claim 4 of the Second Amended Petition). It
denied a COA on the remaining claims. Carter filed a motion
under Federal Rule of Civil Procedure 59(e) or 60(b) to
vacate the order denying his petition and allow him to return
CARTER V. DAVIS 15
to state court to further develop the evidentiary record. The
Southern District denied this motion in a reasoned decision.
Carter timely appealed both district court orders.
II. STANDARD OF REVIEW
“We review the district court[s’] denial of a habeas
petition de novo.” Jones v. Harrington, 829 F.3d 1128, 1135
(9th Cir. 2016). Carter’s habeas petitions are subject to the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), which forecloses federal habeas relief for “any
claim that was adjudicated on the merits in State court”
unless the state court’s decision was (1) “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States”; or (2) “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d).
These standards are “intentionally ‘difficult to meet.’”
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam)
(quoting White v. Woodall, 572 U.S. 415, 419 (2014)).
“‘[C]learly established Federal law’ for purposes of
§ 2254(d)(1) includes only ‘the holdings’” of Supreme Court
decisions; it does not include Supreme Court dicta or circuit
precedent. Woodall, 572 U.S. at 419–20 & n.2; see Parker v.
Matthews, 567 U.S. 37, 48–49 (2012) (per curiam). A state-
court decision is “contrary to” clearly established Supreme
Court precedent “if it ‘applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases’ or if
it ‘confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless
arrives at a [different] result.’” Price v. Vincent, 538 U.S.
16 CARTER V. DAVIS
634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362,
405–06 (2000)). A state-court decision “involve[s] an
unreasonable application” of clearly established Supreme
Court precedent if “it correctly identifies the governing legal
rule” but then applies that rule to the facts of a particular case
in an “objectively unreasonable” way, such that the state
court’s ruling rested on “an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Woodall, 572 U.S. at 421, 426–27
(citations omitted). Finally, a state-court decision is “based
on an unreasonable determination of the facts” if “we are
convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude
that the finding is supported by the record.” Murray v.
Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (citation and
internal alteration omitted).
These deferential standards apply to each claim
adjudicated on the merits in state court, regardless of whether
the state court disposed of the claim in a reasoned opinion or
a summary ruling. Harrington v. Richter, 562 U.S. 86, 99
(2011). We generally “look to the last reasoned state court
decision to address the claim” on the merits. White v. Ryan,
895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018)). If there is no reasoned state-
court decision, we must “determine what arguments or
theories . . . could have supported[] the state court’s
decision.” Richter, 562 U.S. at 102.
Finally, even if a habeas petitioner satisfies one of the
§ 2254(d) prongs for relief, he must show that the claimed
trial error “resulted in ‘actual prejudice.’” Davis v. Ayala,
135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)). “Under this test, relief is proper
CARTER V. DAVIS 17
only if the federal court has grave doubt about whether a trial
error of federal law had substantial and injurious effect or
influence in determining the jury’s verdict.” Id. at 2197–98
(internal quotation marks omitted).
III. CERTIFIED CLAIMS
We begin with the claims certified by the district courts.
For three of the four claims, the “clearly established Federal
law,” 28 U.S.C. § 2254(d)(1), is the Supreme Court’s
decision in Strickland v. Washington, 466 U.S. 668 (1984),
which held that the Sixth Amendment guarantees a criminal
defendant the “right to the effective assistance of counsel” at
both the guilt and penalty phases of a capital trial. Id. at
685–87. Under Strickland, a defendant claiming denial of
effective assistance of counsel “bears the burden to meet two
standards.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1910
(2017).
First, the defendant “must show deficient
performance—that the attorney’s error was ‘so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’” Id. (quoting
Strickland, 466 U.S. at 687). Under Strickland, our inquiry
is highly deferential, and we “must apply a ‘strong
presumption’ that counsel’s representation was within the
‘wide range’ of reasonable professional assistance.” Richter,
562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). “To
overcome that presumption, a defendant must show that
counsel failed to act ‘reasonably considering all the
circumstances.’” Cullen v. Pinholster, 563 U.S. 170, 189
(2011) (alteration omitted) (quoting Strickland, 466 U.S. at
688). The relevant inquiry is “whether an attorney’s
representation amounted to incompetence under ‘prevailing
18 CARTER V. DAVIS
professional norms,’ not whether it deviated from best
practices or most common custom.” Richter, 562 U.S. at 105
(quoting Strickland, 466 U.S. at 690). And given the
“temp[tation] for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence,” the Supreme
Court has strongly cautioned us against drawing the
conclusion “that a particular act or omission of counsel was
unreasonable” just because it “proved unsuccessful.”
Strickland, 466 U.S. at 689.
Second, the defendant must “demonstrate prejudice—‘a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.’” Buck v. Davis, 137 S. Ct. 759, 776 (2017)
(quoting Strickland, 466 U.S. at 694). In the context of a
death sentence, “[t]he question is whether there is a
reasonable probability that, absent the errors, the sentencer
would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Pinholster,
563 U.S. at 198 (alteration omitted) (quoting Strickland,
466 U.S. at 695).
“Surmounting Strickland’s high bar is never an easy
task,” and “[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more
difficult.” Richter, 562 U.S. at 105 (citations omitted). Our
review under AEDPA is “doubly deferential,” as we must
“afford ‘both the state court and the defense attorney the
benefit of the doubt.’” Donald, 135 S. Ct. at 1376 (quoting
Burt v. Titlow, 571 U.S. 12, 15 (2013)).
CARTER V. DAVIS 19
A. Claims Certified by the Central District: Claims 1 and
5(D)(1), Carter’s Conflict with Counsel
The Central District issued a COA for two largely
overlapping claims, which it addressed together. The
certified claims effectively present two questions on appeal:
whether the California Supreme Court’s decisions that
(1) Carter was not denied his Sixth Amendment right to
counsel because of an “irreconcilable conflict” with his trial
counsel and (2) counsel’s performance in refusing to let
Carter testify was not deficient, and even if it was, Carter was
not prejudiced, were contrary to or an unreasonable
application of clearly established federal law. For the reasons
stated below, we hold that the California Supreme Court did
not violate clearly established federal law in denying Carter
relief.
1. Carter’s Attorneys and the Marsden Hearings
Ezekiel Perlo was initially appointed lead counsel and
represented Carter, along with Marcia Morrisey, for over two
years during 1986–1988. About a year prior to trial, in March
1988, the court appointed Rowan Klein to assist Carter in his
motion to substitute counsel, which under California law is
referred to as a Marsden motion. See People v. Marsden,
465 P.2d 44 (Cal. 1970). The trial court held a Marsden
hearing in which Klein notified the court that conflicts
between Perlo and Carter had “led to a total breakdown of the
attorney-client relationship” and that Carter wanted a new
attorney to be appointed in place of Perlo. The trial court was
troubled by this “easily made,” “blanket statement” that
would further delay a trial already “long overdue.” It
nevertheless agreed that the conflict between Perlo and Carter
did not give it “much choice” but to grant the motion. The
20 CARTER V. DAVIS
court appointed Howard Gillingham lead counsel a week
later, and he and Morrissey represented Carter throughout the
duration of the trial.
a. July 5 (First Marsden Hearing)
On July 5, 1989, just after the prosecution rested during
the guilt phase, Gillingham requested an ex parte hearing to
apprise the trial court of a disagreement between him and
Carter. Gillingham invoked Marsden in requesting the
hearing but did not say anything that would suggest Carter
had requested new counsel. Gillingham stated he wanted to
“spread something on the record regarding the defense
strategy and position.” He informed the court that it was his
and Morrissey’s “firm belief that [they] should rest” and not
put on a defense at the guilt stage. He noted that there were
a number of potential witnesses he could call but that they
made the “tactical decision not to call those witnesses.” He
did not mention Carter as one of those witnesses. Gillingham
acknowledged Carter emphatically disagreed with the
decision not to call any witnesses and that Carter wanted the
disagreement preserved in the record. Gillingham argued that
this was a situation where the appointed lawyers “should call
the shots.” The trial court agreed, noting “the record is clear”
and that “in these matters the decisions should be with the
counsel.” Carter did not speak during the hearing and
Gillingham subsequently testified that, based on his belief
that the “lawyer ought to do the talking,” he had instructed
Carter not to speak unless the court directly addressed him.
b. July 10 (Second Marsden Hearing)
Carter later testified that after the first Marsden hearing,
he complained to Gillingham for leaving out “a couple of
CARTER V. DAVIS 21
things,” including telling the court about his desire to testify,
and for not “ma[king] it as clear as [Carter] would have
liked.” Thus, on July 10, after both parties had rested but
prior to closing arguments, Gillingham requested another
hearing, which he noted “probably should be done in a sealed
basis again under People versus Marsden.” The hearing was
brief and Gillingham stated:
Your honor, one further thing, in all modesty,
I think I neglected to do it the other day, and,
that is, in addition, by not putting on the
witnesses, it also precluded the potential of
Mr. Carter testifying based on . . . what those
witnesses would have testified to and the
effect of their testimony.
The court responded: “You just wanted to add that?”
Gillingham said he had nothing further and the court ordered
the exchange sealed.
That same day, after closing arguments, the court held
another ex parte hearing, which did not appear to invoke
Marsden. It was also very brief and Gillingham added:
Your Honor, Mr. Carter asked me to spread
upon the record that he does not agree with
the closing argument that counsel made, that
he had asked me what it was, and that he was
not informed of the type of argument. And he
certainly does not feel that it was adequate,
and this just compounds the problem of the
lack of defense by the argument that counsel
made.
22 CARTER V. DAVIS
The court responded by noting the “record is clear” and again
sealed the record. Carter did not speak during either of these
exchanges.
c. July 17 (Third Marsden Hearing)
On July 17, while the jury was deliberating, Gillingham
again requested a hearing “under the ambit of Marsden.”
Gillingham informed the court:
Mr. Carter continues to express
disappointment . . . [with] the manner in
which to this point the case has been handled
by counsel. He specifically would ask me to,
as I understand it, ask you to appoint Mr.
Rowen Klein . . . [to] prepare and file a new
trial motion or some motion pre-penalty
phase. This is part of the reason for the
Marsden.
I will say that counsel opposes that
motion. . . . We have discussed Mr. Carter’s
now constitutional rights under the ultimately
famous case of Feretta. . . . He is not making
that request today.
The court denied the request as untimely and noted that while
Klein may ultimately be able to help Carter file a motion for
new trial, it was not the appropriate time to consider such a
motion.
CARTER V. DAVIS 23
d. September 5 (Fourth Marsden Hearing)
On September 5, after the jury returned a death verdict
but prior to sentencing, Gillingham once again requested an
ex parte hearing under Marsden. The following colloquy
took place:
Gillingham: Your Honor, as you know,
throughout the case there have been various
instances where Mr. Carter’s feelings,
opinions, et cetera, as to how the case was
being run surfaced. That has happened again,
and my own personal opinion, for what it’s
worth, is, it’s probably well taken. We asked
to be here under People versus Marsden, and
it’s my impression and belief that Mr. Carter
does not have confidence in the ability of
Miss Morrissey to proceed with his defense.
This is not a knee jerk reaction. We’ve
discussed it.
Court: So without your opinion on the merits
of his displeasure, you feel there are righteous
differences of opinion here?
Gillingham: Yes, I do, your honor.
Court: And possibly is. You would be unable
ethically or intellectually to pursue the types
of claims that Mr. Carter would be making on
a motion for new trial and other issues?
Gillingham: Absolutely, and I do feel
strongly about it, that assuming new counsel
24 CARTER V. DAVIS
were available, the most expeditious judicial
and most fair way to proceed, Miss Morrissey
and I should be relieved. That is Mr. Carter’s
request, which I understand it is.
...
Court: And Mr. Carter, is that your desire to
have Mr. Klein appointed to represent you in
this proceedings from now on?
Carter: Yes, it is.
Court: And do you agree with Mr.
Gillingham’s statement that there is a
difference–
Carter: Definitely.
Court: I don’t really see I have much choice
in this matter. At this point I don’t want to
pry, and I certainly respect the tremendous
amount, not only Mr. Gillingham and Miss
Morrissey’s legal abilities, but their ethical
standards as well, a[nd] if they feel that this is
the correct thing to do, I certainly would
agree.
The trial court then appointed Klein to represent Carter on his
motion for a new trial.
CARTER V. DAVIS 25
e. Hearing on Motion for a New Trial
Klein moved for a new trial based, in part, on the conflict
between Gillingham and Carter. The court held a hearing on
the motion and Gillingham was called to testify about his
representation. Gillingham testified that he and Morrissey
recognized it was a “potential death case” and that they had
made the “tentative decision” to try it as a penalty case. He
admitted that the cases pending in Oakland and San Diego
“had to be some factor” in that decision. As an example of
how this decision affected the trial strategy, Gillingham noted
that “the voir dire of the jurors was almost entirely death
focused.” Gillingham testified that Carter “wanted to put on
at all times a full-blown defense” and “contest [] guilt” which
included the “possibility” of Carter testifying. Gillingham
observed that Carter’s comments were at times “framed in the
negative,” such as: “Aren’t you going to do something?”;
“Where are the witnesses?”; and “What are you going to do?”
Gillingham further testified that in each of the hearings
discussed above he had always intended to accurately convey
Carter’s desires but that he likely did not do so very well.
Carter also testified during the hearing on the motion for
new trial. Carter said he told his attorneys he “wanted to
present a defense” and that he “was more concerned about the
guilt phase and that [he] felt it was necessary for [him] to
testify.” They did not settle on a defense strategy before trial
because Gillingham told him they could not fully plan their
strategy until they saw the prosecution’s case. He said the
first serious discussion with his counsel about the defense
case, including him testifying, was the day before the
prosecution rested. At that time, Gillingham told him that he
was not planning on putting on a defense, and if they were
not going to put on a defense, Carter would not testify. Carter
26 CARTER V. DAVIS
was “upset,” and told Gillingham that he “wanted to call
witnesses, put on a defense and testify.” Carter noted he had
discussed trial strategy with Gillingham “around” ten times
prior to trial.
One time after voicing his disagreement to Gillingham,
Carter stated that Gillingham responded by telling him, “[a]s
hard as it is sometimes a lawyer has to play god.” Carter
testified he was particularly upset that he would not be able
to testify as a result of Gillingham’s decision not to call
witnesses and that he had requested the Marsden hearings to
“indicate to the court that I was not happy with what
[Gillingham] was doing and I wanted to make sure it was
clear that it was over my objection that he was doing it.” On
cross-examination, Carter conceded that he had not thought
about how his decision to testify could affect the other
pending cases. And when asked whether Gillingham stated
Carter’s view “completely and accurately,” Carter responded,
“As far as I recall.”
Klein argued that as soon as the court learned Carter
wanted to testify, it was constitutionally obligated to seek a
waiver of Carter’s right to testify. The court orally denied the
motion for a new trial without expressing its reasoning.
f. California Supreme Court Proceedings
On direct appeal to the California Supreme Court, Carter
argued the trial court erred by failing to adequately inquire
into the conflict with his counsel and by failing to appoint
new counsel once the conflict was disclosed. Carter,
117 P.3d at 530. The California Supreme Court denied this
claim on its merits. Id. at 530–34. It rejected Carter’s claim
CARTER V. DAVIS 27
that his conflict with Gillingham denied Carter his right to
conflict-free, effective representation and held:
Here, the record supports the People’s
position that defendant, a person with a
sophisticated view of the criminal justice
system from the inside, complained
sufficiently during proceedings conducted in
the trial court so as to create a colorable
appellate issue, but not sufficiently to obligate
the trial court to relieve his counsel.
Id. at 532–33 (internal quotation marks omitted). The court
agreed with the prosecutor who argued the motion for a new
trial that “Mr. Carter was a defendant who wanted things his
way. . . . Mr. Gillingham did not do them his way for valid
legally sufficient reasons, and Mr. Gillingham indicated this
. . . displeasure of Mr. Carter, but in the end, Mr. Carter
acceded to Mr. Gillingham’s trial strategy.” Id. at 533 n.40
(second alteration in original).
The court also denied Carter’s claim that the trial court
failed to sufficiently inquire into the conflict, concluding:
[W]e are satisfied from the record before us
that in the course of conducting three
Marsden hearings, the trial court adequately
inquired as to the issues raised by the defense,
and that counsel fairly characterized the
nature of the conflict for the trial court. . . .
[D]efendant fails to persuade us that his
conflict with defense counsel over trial tactics
and strategy (including the decision whether
28 CARTER V. DAVIS
defendant should testify), the trial court’s
inquiries into that conflict, or the court’s
refusal to appoint new counsel prior to the
conclusion of the penalty phase, either
singularly or in the aggregate, deprived
defendant of his state or federal constitutional
rights.
Id. at 534.
2. Irreconcilable Conflict
In his federal habeas petition, Carter argued he was
denied his constitutional right to “conflict-free, effective
counsel” because of “an irreconcilable conflict with his court-
appointed attorneys” and that the California Supreme Court’s
opinion to the contrary was an “unreasonable application” of
clearly established federal law and “based on an unreasonable
determination of the facts.”
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel at all critical stages of
the proceeding. Coleman v. Alabama, 399 U.S. 1, 7 (1970).
It ensures defendants “an effective advocate,” but does not
guarantee the defendant “will inexorably be represented by
the lawyer whom he prefers.” Wheat v. United States,
486 U.S. 153, 159 (1988).
We have stated that “to compel one charged with [a]
grievous crime to undergo a trial with the assistance of an
attorney with whom he has become embroiled in
irreconcilable conflict is to deprive him of the effective
assistance of any counsel whatsoever.” Brown v. Craven,
424 F.2d 1166, 1170 (9th Cir. 1970); see Stenson v. Lambert,
CARTER V. DAVIS 29
504 F.3d 873, 886 (9th Cir. 2007). Concluding that such
conflicts are tantamount to a denial of counsel altogether, we
have held a defendant “need not show prejudice” as would
ordinarily be required under a claim of ineffective assistance
of counsel. United States v. Moore, 159 F.3d 1154, 1158 (9th
Cir. 1998); see also id. (“[I]f the relationship between lawyer
and client completely collapses, the refusal to substitute new
counsel violates [defendant’s] Sixth Amendment right to
effective assistance of counsel.”). Carter argues that if he can
establish an “irreconcilable conflict” existed between him and
Gillingham under the three-step inquiry we set forth in
Moore, he need not demonstrate the conflict prejudiced his
defense. See 159 F.3d at 1158–59.5
Even under our circuit’s precedent, the conclusion that an
irreconcilable conflict did not exist based on the disagreement
between Carter and Gillingham was reasonable. Carter,
117 P.3d at 533. “[O]nly where there is a complete
breakdown in communication,” have we recognized an
irreconcilable conflict claim. Stenson, 504 F.3d at 886. At
the hearing on the motion for a new trial, both Carter and
Gillingham testified that they spoke many times before and
throughout the trial about tactical decisions. The evidence
simply does not demonstrate “a total lack of communication”
between Carter and Gillingam. Schell v. Witek, 218 F.3d
1017, 1026 (9th Cir. 2000). Moreover, “[d]isagreements over
strategical or tactical decision do not rise to level [sic] of a
5
We fashioned a three-part test in Moore to determine whether a
conflict rises to the level of “irreconcilable.” See Moore, 159 F.3d at
1158–59. Specifically, we consider “(1) the extent of the conflict; (2) the
adequacy of the inquiry [by the trial court]; and (3) the timeliness of the
motion [for substitution of counsel].” Id.
30 CARTER V. DAVIS
complete breakdown in communication.” Stenson, 504 F.3d
at 886 (citing Schell, 218 F.3d at 1026).
Even if Carter were successfully able to demonstrate a
complete breakdown in communication or prove that an
irreconcilable conflict existed under the Moore factors,
Carter’s irreconcilable-conflict claim would still fail. This is
because the Supreme Court has never endorsed this line of
precedent from our court. It has never held that an
irreconcilable conflict with one’s attorney constitutes a per se
denial of the right to effective counsel. This proves fatal to
Carter’s claim because AEDPA conditions habeas relief on a
determination that the state-court decision unreasonably
applied “clearly established Federal law” as pronounced by
the U.S. Supreme Court. 28 U.S.C. § 2254(d)(1); Williams,
529 U.S. at 365. Although we may look to our circuit’s
precedent to see if we have already held a rule is clearly
established, our decisions may not “be used to refine or
sharpen a general principle of Supreme Court jurisprudence
into a specific legal rule that [the] Court has not announced.”
Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam);
see Parker, 567 U.S. at 49 (holding the Sixth Circuit erred in
applying its circuit’s “multistep test” that bore scant
resemblance to the general rules announced by the Supreme
Court). Carter does not cite to any Supreme Court case
holding that an irreconcilable conflict between a lawyer and
his client constitutes a constructive denial of his right to
counsel, with no showing of prejudice required. Nor has he
pointed to Supreme Court precedent that resembles our test
in Moore.
CARTER V. DAVIS 31
The Supreme Court cases Carter cites are inapposite, as
they all deal with conflicts of interest between other clients
the counsel represented. See Wheat, 486 U.S. at 163–64
(holding in multiple-representation cases, a district court must
help protect criminal defendants against counsel’s conflict of
interest); Wood v. Georgia, 450 U.S. 261, 271–72 (1981)
(discussing potential conflicts arising from counsel hired by
defendants’ employer); Holloway v. Arkansas, 435 U.S. 475,
482 (1978) (holding joint representation of codefendants is
not per se unconstitutional). The type of conflict Carter has
alleged, however, is one over defense strategy. The term
“conflict” can refer to different forms of conflict, and care
must be taken not to mix them up. We have expressly
declined to extend the conflict-of-interest analysis in Wheat,
Wood, and Holloway to the type of conflict Carter alleges.
We rejected arguments similar to Carter’s in another capital
habeas case:
[Petitioner’s] disagreement with [his counsel]
is better characterized as one over trial
strategy . . . . We can find no clearly
established Supreme Court precedent holding
that this kind of disagreement amounts to an
actual conflict of interest. The Washington
Supreme Court correctly determined that no
clearly established federal law supports
[Petitioner’s] construction of “conflict of
interest” as describing a disagreement
between attorney and client over trial strategy.
32 CARTER V. DAVIS
Stenson, 504 F.3d at 886.6 We are “not aware” of any
Supreme Court case suggesting the Sixth Amendment is
violated because the defendant “dislike[s] or distrust[s]” his
counsel. Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir.
2008); see also Larson v. Palmateer, 515 F.3d 1057, 1067
(9th Cir. 2008).
Carter similarly fails to cite to any Supreme Court
precedent establishing that a trial court’s failure to inquire
into the nature of the attorney-client relationship is a per se
violation of a defendant’s Sixth Amendment rights. Carter
admits that the Supreme Court cases he relies on “do not
explicitly hold that a trial court must ask the defense attorney
and defendant about a conflict” but contends that the
“requirement is implicit in the holdings.” AEDPA requires
more than pointing to implicit holdings or dicta; it requires
that the law be clearly established. Williams, 529 U.S. at 412.
In arguing the California Supreme Court’s opinion
contains an unreasonable determination of the facts, Carter
mischaracterizes the opinion as holding there was no conflict
between Carter and Gillingham. The court, however,
recognized the conflict and accurately described it as
6
Admittedly, we relied on our own precedent in Stenson, as Carter
urges this panel to do, but that decision was rendered before the Supreme
Court’s more recent admonitions against relying on circuit precedent.
That opinion involved a habeas petition in a capital case where the court
held that an “irreconcilable conflict” with counsel was a constructive
denial of the Sixth Amendment right to effective counsel. Significantly,
our opinion in that case did not hold that the right to “conflict-free”
counsel, as Carter uses that term, was clearly established by any Supreme
Court case law. Rather, it simply analyzed the claim under the Moore test
without citing any similar Supreme Court case. See Stenson, 504 F.3d
at 886–88.
CARTER V. DAVIS 33
“dissatisfaction with counsel’s trial strategy and tactics.”
Carter, 117 P.3d at 534.
In sum, Carter’s attempt to avoid the Supreme Court’s
established framework for ineffective-assistance-of-counsel
claims by looking to this circuit’s articulation of the right to
effective counsel is unavailing and we review Carter’s claim
under Strickland, which is the clearly established federal law
for claims alleging ineffective assistance of counsel, as
determined by the Supreme Court. See Ayala v. Chappell,
829 F.3d 1081, 1096 (9th Cir. 2016).
3. Ineffective Assistance of Counsel by Refusing to Let
Carter Testify
a. Prior Rulings
As described above, during the first Marsden hearing,
Gillingham told the court he and Morrissey “firm[ly]
belie[ved] that [they] should rest” and not put on a defense at
the guilt stage. He explained they made the “tactical decision
not to call [potential] witnesses,” despite Carter’s
disagreement. The trial court agreed with Gillingham that “in
these matters the decisions should be with the counsel.”
During the second Marsden hearing, Gillingham clarified that
“by not putting on the witnesses, it also precluded the
potential of Mr. Carter testifying.”
The California Supreme Court determined that Carter
“had ample opportunity during the course of [these] Marsden
hearings to inform the court that he wished to testify, against
the advice and over the objection of defense counsel, even if
defense counsel were permitted to decline to present any
other defense witnesses who would support defendant’s own
34 CARTER V. DAVIS
testimony,” but he did not. Carter, 117 P.3d at 533 (emphasis
in original). The court reasoned that since Gillingham
repeatedly informed the court of conflicts that arose with
Carter, it could assume that if Carter “told his counsel that
[he] insisted upon testifying despite the absence of any other
defense witnesses, his counsel would have conveyed that
demand to the trial court.” Id. Since there was no such
evidence, the court concluded that “on this record we may not
assume that defendant in fact had insisted upon testifying
even where no other defense witnesses would be presented to
support his testimony.” Id. at 533–34. “[I]n the end,” the
court found, “Mr. Carter acceded to Mr. Gillingham’s trial
strategy.” Id. at 533 n.40.
The district court agreed that Carter never insisted on
testifying even if no other defense witnesses would be
presented. It found that: the California Supreme Court’s
determination that Carter “acceded through his conduct to
Gillingham’s trial strategy, as a factual matter, was not
unreasonable” in light of the facts that “[a] defendant is
‘presumed to assent to his attorney’s tactical decision not to
have him testify,’” United States v. Pino-Noriega, 189 F.3d
1089, 1094 (9th Cir. 1999) (quoting United States v. Joelson,
7 F.3d 174, 177 (9th Cir. 1993)); Carter’s and Gillingham’s
testimony that Carter wanted to put on a full-blown defense
and testify after the presentation of defense witnesses was
consistent; and Carter failed to move for new counsel when
Gillingham intended to rest.
b. Performance
Carter argues that it was deficient performance not to
allow him to testify because (1) doing so against Carter’s
wishes conflicted with an objective standard of
CARTER V. DAVIS 35
reasonableness under prevailing professional norms, and
(2) Gillingham did not have an informed basis for making the
decision, as he did not go over “in detail” what Carter’s
testimony might be. We conclude the California Supreme
Court reasonably determined that counsel did not perform
deficiently. See Carter, 117 P.3d at 526.
As to professional norms, Carter argues that at the time of
trial, the Supreme Court had established that a criminal
defendant has a fundamental constitutional right to testify in
his own defense, citing Rock v. Arkansas, 483 U.S. 44, 49, 51,
53 (1987). But the California Supreme Court did not
conclude that Carter lacked a right to testify in his own
defense if he had asserted that right. Indeed, it expressly
acknowledged that “[a]lthough tactical decisions at trial are
generally counsel’s responsibility, the decision whether to
testify, a question of fundamental importance, is made by the
defendant after consultation with counsel.” Carter, 117 P.3d
at 533. Rather, the court concluded that although Carter
repeatedly told counsel that he preferred to call witnesses
(including himself) and present a defense case, he never
insisted that he wanted to testify even if counsel made the
tactical choice not to call witnesses—“in the end, Mr. Carter
acceded to Mr. Gillingham’s trial strategy.” Id. at 533 &
n.40. This was not an unreasonable determination of fact.
Carter argues that it was, in part, because he was unable
to speak during the Marsden hearings because Gillingham
told him not to. He also complains that the court did not ask
him about whether he wanted his attorneys to present a
defense or to testify. However, the transcripts reveal that
Carter at least felt comfortable talking to Gillingham during
these hearings to urge him to add things to his presentations
at these hearings. When the court asked Gillingham at the
36 CARTER V. DAVIS
first Marsden hearing whether there was anything further,
Gillingham initially replied there was not, but then said
“[w]hoops, just a moment” while Carter told him about other
possible witnesses, which Gillingham immediately relayed to
the court.
Moreover, Carter’s own descriptions of what he told
Gillingham included both his desire to present a defense by
calling other witnesses and his desire to testify himself: he
“wanted to call witnesses, put on a defense and testify;” he
“wanted them to subpoena the witnesses [he] wanted to call,
and . . . to put on a defense; and [he] wanted to testify,” he
was “unhappy” because he “wanted to present a defense and
[he] wanted to testify.” Similarly, Carter stated he was
dissatisfied with Gillingham’s presentation to the court in the
first Marsden hearing because he thought Gillingham “left
out a couple of things” by not “mention[ing] all the witnesses
that [Carter] wanted to call, and he also didn’t tell the court
that [Carter] wanted to testify on [his] own behalf.”
Additionally, Carter conceded that as far as he could recall,
Gillingham accurately conveyed his objections. This lends
further support to the California Supreme Court’s finding that
“Mr. Carter acceded to Mr. Gillingham’s trial strategy.” Id.
at 533 n.40. And Carter points to no Supreme Court case
establishing that a client has a right to testify under these
circumstances.
Carter’s argument that counsel did not have an informed
basis for making the decision not to present a defense because
he did not go over “in detail” what Carter’s testimony might
be also fails. The California Supreme Court could reasonably
have determined that counsel’s decision to focus on the
penalty phase in the hope that the jury would spare Carter’s
life was a reasonable tactical decision, made after discussions
CARTER V. DAVIS 37
with Carter about what he would say if he testified. Such a
decision is not altogether uncommon in capital trials,
especially where the attorney believes the defendant’s guilt is
clear, the evidence overwhelming, and the crime heinous.
Florida v. Nixon, 543 U.S. 175, 190–91 (2004). Counsel
explained to Carter that their decision not to present a
defense, including to not have Carter testify, was this sort of
“tactical decision.”
c. Prejudice
Even if counsel performed deficiently by refusing to let
Carter testify, the California Supreme Court’s determination
that Carter cannot show prejudice was not an unreasonable
application of law. See Carter, 117 P.3d at 526. Carter
argues that there is a reasonable probability the result would
have been different if he had testified because (1) he would
have explained the strongest evidence against him, and (2) he
would have created a reasonable doubt that he had the
required level of intent for first-degree murder. We disagree.
Carter never describes what explanation he would have
given for driving a car belonging to one of the victims at the
time he was arrested or for having the belongings of several
of the victims in the car. Carter admits that his possession of
those belongings was “[p]erhaps the strongest evidence
against” him, without indicating how he might have
explained that away. Nor does he explain how he would have
undercut the physical evidence connecting Carter to the crime
scenes—the palm print and semen. We cannot conceive of an
explanation which would have created a reasonable
probability that he would not have been found guilty.
Strickland, 466 U.S. at 694.
38 CARTER V. DAVIS
Carter also contends he would have testified that he
“effectively ‘blacked out’ during each of the crimes,” and
thus “been able to successfully assert a ‘diminished actuality’
defense.” But such testimony would necessarily have
admitted guilt and thus undercut any innocent explanation for
having the victims’ belongings in his car.
Moreover, even if Carter testified, there is no reasonable
probability—one sufficient to undermine confidence in the
outcome, Strickland, 466 U.S. at 694—that the jury would
have found him not guilty. To begin, the jury heard this type
of evidence and still convicted him. For example, the jury
heard that Carter told a store employee while he was with
Tok Kim, “I don’t even know what I’m doing here, I don’t
even know her.” Carter, 117 P.3d at 486.
Similarly, there was so much evidence that Carter
possessed sufficient mental capacity and intent to commit the
crimes that it was highly unlikely that the jury would have
been persuaded otherwise by his testimony. For example,
Carter asked Cullins and Tiner if they lived alone or with a
roommate. Carter told Tiner he instructed Cullins not to tell
Tiner that he was in town. He arrived at Tiner’s house
despite Tiner’s testimony that she had never given him her
address. Carter withdrew $60 from Cullins’ bank account,
leaving a nearly $0 balance. Carter’s numerous crimes were
performed throughout northern, central, and southern
California over twenty-three days, and he made it to Arizona
before he was arrested. The California Supreme Court could
reasonably have concluded that even if Carter had testified he
blacked out during each crime, there is no reasonable
probability the jury would have acquitted him.
CARTER V. DAVIS 39
Carter concedes “the prosecution’s case was strong” on
this point. To show the result may have been different, he
points to a juror declaration that the jury vote was mixed for
guilty and not guilty when deliberations started. He also
highlights how the jury took nearly five days to reach a guilty
verdict.
Although the length of deliberation can be an objective
sign that the jury struggled with the verdict, all of the cases
Carter cites to this effect are distinguishable. They all
involve cases where the length of deliberation was
disproportionate to the length of the trial, or cases where there
was only one charge for the jury to deliberate. See Thomas v.
Chappell, 678 F.3d 1086, 1103 (9th Cir. 2012) (“The jury
deliberated for almost five full days, even though it heard
argument and evidence for only about six days.”); Daniels v.
Woodford, 428 F.3d 1181, 1193 (9th Cir. 2005) (“After two
days of deliberations, the jury returned a verdict imposing
death [based on one murder].”); Dyas v. Poole, 317 F.3d 934,
936 (9th Cir. 2003) (per curiam) (“[T]he jury took 3-1/2 days
to deliberate following Dyas’s 5-day trial [on only one
murder and robbery].”). Here, on the other hand, the trial
lasted multiple weeks but the jury deliberated only between
3 1/2 and 4 days, and had over a dozen issues to decide,
including three murders, two rapes, two residential burglaries,
and concurrent findings (including whether the murders were
in the course of rape and burglary). The length of
deliberation here is not so persuasive a sign that the jury
struggled with the verdict, and the California Supreme Court
could reasonably have concluded that it did not create a
reasonable probability that the result would have been
different had Carter testified.
40 CARTER V. DAVIS
B. Claims Certified by the Southern District
The Southern District issued a COA for two separate
claims. We discuss each in turn and conclude that Carter was
not deprived of constitutionally adequate representation.
1. Certified Claim 1 (Claim 3 of Second Amended
Petition): Ineffective Assistance of Counsel at
Penalty Phase
In the first claim certified for our review, Carter alleged
that his trial counsel “failed to provide reasonably competent
assistance at the penalty phase of his trial,” and if not for
counsel’s “unprofessional actions and omissions,” the
sentence imposed would have been different. Carter raised
five specific arguments about his counsel’s performance:
(1) they “failed to adequately investigate mitigating and
aggravating evidence”; (2) they employed the same penalty
phase strategy that had been used in the Los Angeles trial, a
strategy that had resulted in a death verdict; (3) they were
“ineffective in developing and presenting Carter’s
background to the jury”; (4) they failed to develop evidence
of Carter’s mental impairments; and (5) they were “deficient
in penalty phase closing arguments.” The district court
rejected each of these arguments.
On appeal, Carter asks us to find constitutional deficiency
in the San Diego counsel’s strategy of focusing on the
positive aspects of his career and family life as an adult,
rather than giving greater emphasis to his traumatic childhood
and mental illness. He attributes counsel’s decision to pursue
this strategy—despite having seen it fail during his Los
Angeles trial—to their failure to conduct a satisfactory
investigation of his childhood in Nome. Had counsel’s
CARTER V. DAVIS 41
investigation been sufficient, he alleges, they would have
instead called additional witnesses who knew of his
childhood in Nome, and would have elicited more testimony
from the twenty-one witnesses whom they did call about
particular forms of abuse Carter had suffered, including that
his parents chained him up at home and locked him in a
makeshift jail cell. Additionally, Carter charges that counsel
did not fully investigate the extent of his mother’s alcohol
consumption during his gestation and alleges that a sufficient
investigation would have compelled counsel to present
evidence that Carter suffered from fetal alcohol syndrome
(FAS).
a. Prior Rulings
Carter did not allege ineffective assistance of counsel
during the penalty phase of trial on direct appeal to the
California Supreme Court. He raised this claim for the first
time in his state habeas petitions, which the California
Supreme Court summarily denied. The state does not argue
that this claim was procedurally defaulted, and we treat the
state court’s decision as a denial of relief on the merits.
Richter, 562 U.S. at 99. Because there was no reasoned
explanation accompanying this decision, Carter must show
there was “no reasonable basis for the state court to deny
relief.” Id. at 98. Our task is to determine what arguments or
theories could have supported the California Supreme Court’s
decision, and whether it is possible that fairminded jurists
could disagree that those arguments or theories are
inconsistent with a prior holding of the U.S. Supreme Court.
Id. at 102. We conclude that Carter has failed to demonstrate
that the California Supreme Court lacked a reasonable basis
for denying relief.
42 CARTER V. DAVIS
b. Performance in Investigating Carter’s Background
Carter’s first argument is that counsel performed
deficiently in their investigation of his background in Nome.
Under Strickland, “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary” during the penalty
phase of a trial. Strickland, 466 U.S. at 691 (emphasis
added); see Wiggins v. Smith, 539 U.S. 510, 526–28 (2003).
“In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Strickland, 466 U.S. at 691.
Five years before trial, the state appointed Charles Ted
Bumer to serve as Carter’s lead trial counsel and Josephine
Dedina to serve as co-counsel. Bumer and Dedina were
assisted by paralegal Kathleen Gilberd and private
investigators Marion Pasas and Chuck Hile. The trial team
traveled to Alaska to gather evidence, and Pasas visited
Carter’s hometown of Nome to interview residents who had
known the Carter family during his childhood.
Based on Pasas’s investigation, during the penalty phase
the defense team called six witnesses, out of a total of twenty-
one, who knew Carter as a child in Nome. Each of the six
witnesses testified about the relationship between Carter and
his parents, and several also gave general testimony about the
conditions Native Alaskans in Nome faced.
Carter’s brother Jerry Carter (Jerry) testified that their
mother Esther and stepfather Jim drank heavily, argued, and
were often physically violent with one another. He also
testified that Esther corporally punished the children with
CARTER V. DAVIS 43
branches, a belt, and a razor strap, and that Carter ran away,
often for several days at a time. Jerry further testified to two
instances of abuse from Carter’s childhood: an incident
where a five- or six-year-old Carter was dragged by the
bumper of Esther’s car while attempting to prevent her from
going to a bar, and an incident where Jim and Esther chained
Carter to his bed for a day or two to prevent him from
running away. Jerry stated that sometime after these
incidents, Jim and Esther sent Carter away to a home for
unwanted children.
Carter’s sister Polly Reaser (Polly) testified that Jim and
Esther often drank in bars until 4:00 in the morning and were
violent with one another, and that Carter would have
witnessed these incidents of drunken violence.
Local elder Bertha Adsuna had lived in Nome for over
fifty years at the time of trial. She testified that alcohol was
a societal problem in the town, that Esther frequented the
bars, that Carter spent much of his childhood alone, and that
Esther dressed and treated Carter worse than she did Jerry.
After Esther married Jim, Adsuna observed that the couple
often went to bars together.
Harriet Brown served from 1947 to 1967 as a missionary
pastor at a Nome church attended mostly by Alaska Natives
and was Carter’s childhood Sunday-school teacher for two to
three years. She testified that the largest problem among the
Native population was alcoholism. She also frequently saw
child neglect in the community. Brown further testified that
Jerry and Polly were always dressed well as children, but that
Carter was not, and that Esther did not treat him nicely.
44 CARTER V. DAVIS
Beth Farley was a childhood classmate of Carter’s. She
testified that he was often alone, ignored by his family, and
spent more time with the Farley family than his own. She
also testified that she left Nome because of pervasive alcohol
abuse, stating that even the children drank and many died of
either exposure or suicide. Farley testified that her son was
part Alaska Native and that she had witnessed and
experienced prejudice against people of mixed race in Nome.
Ruth Butts was also a childhood classmate of Carter’s.
She testified that an incident had led many people to search
for Carter as a child and that it was common knowledge that
Jim was not the biological father of either of his stepsons,
which led children to tease Carter and Jerry. She also
testified to seeing Jim drunk in bars after church on Sundays.
Carter argues that this testimony was insufficiently
compelling to the jury because his counsel had failed to
further investigate his abusive childhood. A more complete
investigation, he alleges, would have prompted counsel to call
additional witnesses to the stand who could have testified to
more specific instances of abuse.
Carter first points to counsel’s failure to secure the
testimony of his mother Esther. Pasas interviewed Esther in
Nome, but Esther cut the interview short after Pasas asked a
question about her alcohol consumption. After this aborted
interview, Esther refused to provide any further assistance to
her son’s trial defense. However, in support of Carter’s
habeas petition, Esther submitted a sworn declaration stating
that had she been “approached differently,” she would have
“talked to [counsel] and answered all of their questions” and
“probably would have testified.” Esther declared that her
testimony would have included recollection of Jim using a
CARTER V. DAVIS 45
belt to discipline Carter, Jim chaining Carter to his bed, and
she and Jim drinking heavily.
Carter also submitted several other declarations from
Nome residents who were not called as defense witnesses
during the penalty phase and who largely allege that they
were not contacted or interviewed at the time of trial. As the
district court noted, these declarations “largely outline, in
greater detail than presented at trial, the mistreatment [Carter]
suffered . . . at the hands of his mother and step-father and the
alcoholism of his parents.”
Most notably, Carter submitted a declaration from Arthur
(“Guy”) Martin, a colleague of Jim’s on the Nome police
force. Martin declared that when responding to a call from
one of the Carter family’s neighbors reporting child abuse, he
had observed both Carter and Jerry chained to the floor of the
family home. He suspected that Jim and Esther frequently
chained the boys so that they could go out drinking. Martin
declared that he had confronted Jim about the incident but
that he had never reported it. Defense counsel had contacted
and attempted to interview Martin prior to trial, but Martin
had refused. Martin declared that he had declined to
participate in the defense only because Esther had asked him
not to speak to investigators or tell anyone about the abuse.
Additionally, Vaughn Johnson, a neighbor of the Carters,
declared that he once saw Carter handcuffed and chained to
the outside of his house, and that Carter had told Johnson that
Jim had chained him. Cheryl Stavish, a childhood friend of
Polly, declared that she recalled the same chaining incident,
and had also observed a hidden room in the Carter home that
resembled a jail cell, in which she “had a feeling” Carter was
held.
46 CARTER V. DAVIS
Carter attributes Esther’s refusal to testify to counsel’s
inadequate preparation of Pasas, and argues that a competent
penalty defense would have featured his mother as the central
witness. And had counsel not alienated Esther, Carter argues,
Martin would have been willing to testify about the chaining
incident he observed. He further argues that counsel was
constitutionally deficient in failing to call both Johnson and
Stavish, who would have corroborated each other’s separate
accounts of an incident of Carter being chained. Together, he
argues, these witnesses could have established that Jim and
Esther treated Carter more like a dog than a child.
The state argues that the testimony of Martin, Johnson,
and Stavish would have been cumulative to that of Jerry, who
testified that Carter had been chained to his bed for a day or
two to prevent him from running away. We agree that much
of their testimony would have been cumulative. But we
disagree that their testimony would have been so entirely
cumulative that it would certainly have been excluded as
irrelevant. These three uncalled witnesses may reasonably
have provided credible firsthand accounts of two additional
instances in which Carter’s parents chained him, supporting
the inference that this was less an aberration than a routine
practice. Had counsel’s strategy been to present the young
Carter as a metaphorical feral dog kenneled by his alcoholic
parents, the eyewitness testimony of Martin, Johnson, and
Stavish would have been relevant.
But that was never counsel’s strategy. Rather than
portray him as a feral child—a strategy which may have
backfired by leading the jury to infer that the adult Carter was
beyond rehabilitation—counsel’s choice of witnesses during
the penalty phase suggests that their intended narrative was
one of Carter overcoming an abusive childhood home to find
CARTER V. DAVIS 47
personal and professional success before a divorce sent him
spiraling into a life of violence. Indeed, the majority of
witnesses counsel called gave testimony recounting how
Carter had successfully rehabilitated himself as a young adult,
allowing counsel to argue to the jury that Carter could again
be capable of growth and redemption. The fifteen penalty-
phase witnesses who came to know Carter after he left Nome
included the house parent at the home for unwanted children
Carter’s parents sent him to, a youth counselor, a probation
officer, a prison educator, and eleven professionals from the
media industry who worked with Carter during his career as
a television cameraman.
We cannot pass judgment on counsel’s wisdom in
choosing this narrative strategy over the one Carter argues
they should have pursued. Rather, our duty is to determine
what arguments or theories could have supported the state
court’s decision to deny Carter’s claim that this strategic
decision amounted to constitutionally deficient assistance,
and whether fairminded jurists would disagree that those
arguments or theories are inconsistent with a prior holding of
the Supreme Court. Richter, 562 U.S. at 102.
The state court could have relied on Strickland’s “highly
deferential” standard. Id. at 105. We “must indulge a strong
presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance” and presume that
“under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 466 U.S. at 689
(citation omitted). “Strickland does not guarantee perfect
representation, only a ‘reasonably competent attorney.’”
Richter, 562 U.S. at 110 (citation omitted). “There is a
‘strong presumption’ that counsel’s attention to certain issues
to the exclusion of others reflects trial tactics rather than
48 CARTER V. DAVIS
‘sheer neglect.’” Id. at 109 (quoting Yarborough v. Gentry,
540 U.S. 1, 8 (2003) (per curiam)). Here, the state court may
have reasonably determined that Carter’s trial counsel made
a legitimate tactical decision to present Carter’s childhood
trauma as they did rather than pursuing the child abuse angle
more aggressively. It would have been able to support this
determination with facts in the record: specifically, that
counsel hired a professional investigator five years before
trial began, that the investigator traveled to Carter’s
hometown and interviewed many people who knew him and
his parents, and that counsel procured the testimony of
twenty-one witnesses whose testimony formed a cohesive
narrative of abuse, perseverance, success, and unraveling.
Carter argues that this theory conflicts with the holdings
of two Supreme Court decisions, Williams and Wiggins, in
which the Court granted habeas relief upon finding that
counsel had been constitutionally deficient in its investigation
of the petitioner’s background. However, we are not
persuaded that fairminded jurists would find that the holding
of either case is in conflict with the Strickland analysis that
could support the state court’s denial of habeas relief.
In Williams, the Court granted relief where counsel failed
to conduct an investigation into the defendant’s “nightmarish
childhood” because they incorrectly interpreted Virginia law
to deny them access to records that were legally available to
them. 529 U.S. at 395. Had Williams’s counsel accessed all
available records,
the jury would have learned that Williams’
parents had been imprisoned for the criminal
neglect of Williams and his siblings, that
Williams had been severely and repeatedly
CARTER V. DAVIS 49
beaten by his father, that he had been
committed to the custody of the social
services bureau for two years during his
parents’ incarceration (including one stint in
an abusive foster home), and then, after his
parents were released from prison, had been
returned to his parents’ custody.
Id. (footnote omitted). Carter argues that the facts of his
childhood compare strongly to those of Williams.
We disagree. The holding of Williams is that counsel
renders constitutionally ineffective assistance if it fails to
investigate and pursue a reasonable defense because it
incompetently interpreted the law. Id. Here, Carter makes no
argument that his counsel misinterpreted Alaska law in a way
that caused them to bypass an investigation of available
records. More importantly, nothing in Williams tells us that
counsel is incompetent unless it pursues a defense based
entirely on the defendant’s neglect as a child. After an
extensive investigation of Carter’s background, counsel
implemented a sound defense strategy: to show that Carter
had suffered under abusive, negligent parents but had risen
above this poor upbringing. This contrasts with Williams,
where the “weight of defense counsel’s closing . . . was
devoted to explaining that it was difficult to find a reason
why the jury should spare Williams’ life.” Id. at 369. Thus,
Williams does not provide any relevant point of “clearly
established Federal law,” 28 U.S.C. § 2254(d), on which a
fairminded jurist could find disagreement with the theories
supporting the California Supreme Court’s decision. Richter,
562 U.S. at 102.
50 CARTER V. DAVIS
In Wiggins, trial counsel conducted no investigation into
the defendant’s background beyond reviewing a Presentence
Investigation Report and social services records. 539 U.S. at
523. Counsel did not take advantage of public defense funds
for commissioning a forensic social worker, which the record
indicated was standard practice in the Maryland legal
community at the time of the trial. Id. at 524. Further,
counsel did not follow up on any of the red flags apparent in
Wiggins’s social services records, including his mother’s
history of alcoholism and child neglect. Id. at 525. Again,
Carter analogizes his case to the underlying facts of Wiggins.
However, the Sixth Amendment violations that the Court
clearly identified in Wiggins were counsel’s failure to take
advantage of funds to commission a social worker and their
failure to take any action upon discovering red flags
indicating that Wiggins may have experienced child abuse.
Carter does not plausibly allege that counsel failed to follow
up on reports that Carter was abused as a child. In fact,
counsel traveled to Alaska, hired a professional investigator
to interview his relatives and neighbors, and put six of them
on the witness stand to testify about his abusive childhood,
his parents’ alcoholism, and the conditions of discrimination
he faced as an Alaska Native. Carter’s counsel, unlike
Wiggins’s counsel, thus competently followed up on their
investigation into Carter’s social history. Wiggins, like
Williams, provides no support for Carter’s habeas claim.
Likewise, Carter cites no relevant support for his
argument that counsel performed deficiently by failing to
procure the testimony of Esther or Martin. We are aware of
no Supreme Court case requiring counsel to secure the
cooperation of reluctant witnesses. And for good reason. A
witness asked to testify in support of a friend or family
member convicted of capital murder faces an intensely
CARTER V. DAVIS 51
difficult, personal decision that belongs to the witness alone,
and counsel’s duty cannot reasonably be extended to compel
a witness to participate in the defense. Carter’s counsel had
a duty to “make reasonable investigations,” Strickland,
466 U.S. at 691, which the state court could have found that
counsel satisfied by interviewing Esther and attempting to
interview Martin.
Carter also argues that counsel’s choice of strategy was
constitutionally deficient because his Los Angeles County
trial counsel had employed a similar narrative, without
success, during the penalty phase of those proceedings. That
begs the questions of whether there was another approach that
was clearly more likely to have produced a better outcome.
Counsel in this case was dealt a difficult hand. We have not
been persuaded that there was an alterative argument so
attractive that the failure of counsel to take that other path
amounted to ineffective assistance.
Moreover, the state court’s rejection of this argument
could reasonably be supported by Strickland. There, the
Court held that courts should not conclude that a “particular
act or omission of counsel was unreasonable” merely because
it “proved unsuccessful.” Id. at 689. Rather, it must presume
that counsel’s decision fell “within the wide range of
reasonable professional assistance.” Id. In this light, because
we presume both the Los Angeles and San Diego attorneys
were professionally competent, the fact that both teams
decided to pursue the same strategy after considering all the
evidence they had available to them only supports the state
court’s position that neither defense team was unreasonable
in its choice. Because Carter cites no Supreme Court holding
that fairminded jurists could disagree was consistent with this
plausible theory, this argument also fails.
52 CARTER V. DAVIS
c. Performance in Investigating Carter’s Mental
Health
Carter argues that counsel failed to conduct an adequate
investigation into his mental health, including the possibility
that he suffered from FAS. But as we have explained,
“counsel’s decision not to pursue a mental health defense is
a reasonable strategic decision under Strickland ” when
“adopting a mental health defense would open the door to
[unfavorable] rebuttal testimony.” Atwood v. Ryan, 870 F.3d
1033, 1063 (9th Cir. 2017).
Here, the record indicates that, at counsel’s request, a
Dr. Lottenberg performed a PET scan of Carter’s brain
approximately one week before the penalty phase of trial
began. Counsel consulted with several experts, who
recommended that the results be sent to Dr. Monte
Buchsbaum for analysis. The court held an in-chambers
teleconference with counsel and Dr. Buchsbaum, during
which Dr. Buchsbaum identified an unusually high number of
abnormalities in Carter’s brain. He then stated that he would
need additional information to render a more detailed and
substantive opinion about Carter. After this hearing, Carter’s
counsel spoke to Dr. Buchsbaum alone and off the record.
Counsel then informed the court that it had made a “tactical
decision” not to introduce evidence of Carter’s mental health
during the penalty phase. Judge Lasater noted on the record
her agreement with counsel’s decision because
Dr. Buchsbaum’s testimony would have opened the door to
rebuttal evidence of Carter’s mental health from the state.
The trial record contains several mental health reports
unfavorable to Carter that the state could have introduced
during the penalty phase if the door had been opened. A
CARTER V. DAVIS 53
1973 psychological evaluation found Carter to be a “fairly
classical sociopathic personality.” A probation report from
the same year noted that Carter’s personality gave him “little
chance at ever making acceptable social adjustment.” A 1975
psychiatrist’s evaluation found that, by Carter’s own
admission, “his irritability and destructively aggressive
conduct that emanates from it are willful, the result of
personal choice, and represent matters over which he could
exercise control if he chose to do so.” A 1977 psychological
evaluation found that Carter “tended to see things in a
concrete way with little insight.” A 1977 Alaska pre-sentence
report described Carter’s behavior as “best explained [by]
focusing on his immaturity and lack of consideration of
consequences.” And a 1978 evaluation found that Carter had
some indicia of psychiatric problems but did not need mental
health assistance at the time, and described his behavior as
“self-punitive in that he feels guilt for his misbehavior, but is
not deterred by the guilt.”
We agree with both the trial judge’s observation and the
district court’s conclusion that Carter’s counsel would have
opened the door to introduction of this potentially damaging
evidence by putting forth a mental health defense at trial.
Notably, the district court was careful to emphasize that “this
is not a case in which counsel failed to conduct any mental
health investigation.” Carter’s counsel ordered a PET scan of
Carter’s brain, conferred with an appropriate expert
recommended by multiple other experts in the field, and made
a tactical decision not to present mental health evidence at
trial. Strickland directs us to presume that the challenged
actions of counsel were “sound trial strategy,” 466 U.S.
at 689, a presumption that is here supported by the
aggravating mental health evidence that would have been
made relevant for rebuttal purposes by Dr. Buchsbaum’s
54 CARTER V. DAVIS
testimony.7 Thus, we may conclude that the state court
properly denied relief under Strickland’s deferential standard.
Carter also argues that counsel was deficient in failing to
investigate and present evidence that he suffered from FAS,
averring that competent attorneys would have pursued this
avenue after learning that Esther consumed alcohol while
pregnant. However, there is no evidence in the trial record
that would have put Carter’s counsel on notice that Esther
drank while pregnant. Carter cites counsel’s interviews with
Jerry and Adsuna, but these interviews only reference
Esther’s drinking in her later years, after she gave birth to her
children. Further, this argument fails for the tactical reasons
described above, as any argument by counsel that Carter’s
actions could be attributable to FAS would have opened the
door to the potentially damaging rebuttal evidence contained
in the record.
In sum, Carter has succeeded only in establishing that
counsel may have chosen to pursue other strategies during the
penalty phase of his trial. He has failed to establish that
counsel’s investigation was deficient. Rather, our review of
the state trial record shows that counsel acted with diligence
beginning five years before trial to investigate events that
took place thirty years prior in a remote town thousands of
7
Indeed, we granted habeas relief on an ineffective assistance
claim—albeit in a pre-AEDPA case—where trial defense counsel
presented an expert mental health witness whose testimony suggested that
the defendant “may be a sociopath.” Daniels v. Woodford, 428 F.3d 1181,
1210 (9th Cir. 2005). Here, even if Dr. Buchsbaum’s testimony had been
sympathetic to Carter, it may have directly led to the introduction of the
1973 psychological evaluation finding Carter to be a “fairly classic
sociopathic personality.” We have no basis for second-guessing counsel’s
tactical decision not to pursue this line of defense.
CARTER V. DAVIS 55
miles away, and counsel succeeded in contacting a significant
number of Carter’s relatives, friends, neighbors, co-workers,
and correctional counselors. Counsel elicited trial testimony
from twenty-one of these individuals which tended to show
that Carter had been severely abused as a child but had, as an
adult, shown the capacity to be rehabilitated and function as
a productive member of society. Counsel also conducted a
PET scan of Carter’s brain, but after conferring with a
recognized expert, decided that the sum of the mental health
evidence would be more aggravating than mitigating. On this
record, Carter has failed to establish that the California
Supreme Court was unreasonable in denying his ineffective
assistance of counsel claim.
2. Certified Claim 2 (Claim 4 of Second Amended
Petition): Denial of Psychiatric Expert Assistance at
Trial
In the second claim certified by the Southern District for
our review, Carter alleged that “he was deprived of the right
to competent assistance of a psychiatric expert,” that “counsel
had an obligation to properly prepare the experts” who
evaluated him, and that their failure to do so constituted
ineffective assistance. Carter raised this claim in his first
state habeas petition, which the California Supreme Court
summarily denied. We treat that decision as a denial on the
merits. Richter, 562 U.S. at 99. Because the decision was
not accompanied by a reasoned explanation, Carter has the
burden to show that “there was no reasonable basis for the
state court to deny relief.” Id. at 98. Again, our task is to
determine what arguments or theories could have supported
the California Supreme Court’s decision, and “whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent” with a prior holding
56 CARTER V. DAVIS
of the U.S. Supreme Court. Id. at 102. We conclude that no
such inconsistency exists here.
Carter bifurcated this claim into a charge that his
attorneys failed to render effective assistance in preparing
expert psychiatric witnesses, and a charge that his experts
themselves rendered ineffective assistance. The district court
construed the portion of the claim charging counsel as
ineffective as a mere repetition of the prior certified claim
regarding a FAS defense. We agree, and hold that Carter is
not entitled to relief for the reasons stated immediately above.
Carter argues that the state court’s denial of relief on his
claim that his expert witnesses were ineffective is in tension
with the Supreme Court’s holding in Ake v. Oklahoma,
470 U.S. 68 (1985). There, a state-supplied psychiatrist
repeatedly evaluated a mentally ill murder defendant before
trial, first deeming him not competent to stand trial but later
deeming him competent. Id. at 70–72. During trial, defense
counsel requested that the indigent defendant be provided
with a psychiatrist to examine him “with respect to his mental
condition at the time of the offense.” Id. at 72. The state trial
judge denied the request. Id. The Supreme Court granted
certiorari on direct appeal and held that “the participation of
a psychiatrist is important enough to preparation of a
defense” that the Due Process Clause of the Fourteenth
Amendment may require a state to provide an indigent
defendant with psychiatric assistance under certain
circumstances. Id. at 77.
At no point did the Court in Ake place any obligation on
defense counsel to present psychiatric evidence at trial.
Rather, that case’s holding is limited to imposing an
obligation on states to make a psychiatrist available to a
CARTER V. DAVIS 57
murder defendant upon the satisfaction of the balancing test.
An Ake claim is not a Sixth Amendment ineffective
assistance of counsel claim, but rather a Fourteenth
Amendment due process claim against the state. Id. at 76
(“This Court has long recognized that when a State brings its
judicial power to bear on an indigent defendant in a criminal
proceeding, it must take steps to assure that the defendant has
a fair opportunity to present his defense. This elementary
principle [is] grounded in significant part on the Fourteenth
Amendment’s due process guarantee of fundamental fairness
. . . .”).
We conclude that Carter has failed to establish that Ake or
any other Supreme Court decision would cause jurists of
reason to disagree with the reasonable arguments in support
of the state court’s decision. Carter conceded in his brief that
the Supreme Court has never interpreted Ake to guarantee a
due process right to effective expert assistance at trial.
Rather, the Court has never extended the state’s obligation
beyond providing a psychiatric expert to an indigent
defendant, and Carter does not dispute that he had access to
such an expert. Because we may rely only on the holdings of
the Supreme Court in evaluating whether the state court’s
decision was reasonable, Williams, 529 U.S. at 412, our
analysis ends here. We do not address Carter’s arguments
that rely on “circuit precedent,” which “cannot form the basis
for habeas relief under AEDPA.” Parker, 567 U.S. at 48–49.
IV. UNCERTIFIED CLAIMS
Carter also raised several arguments relating to claims
that the district courts did not certify in a COA. As a state
prisoner seeking relief under § 2254, Carter has “no
automatic right to appeal” the denial or dismissal of his
58 CARTER V. DAVIS
petition. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
We lack jurisdiction to review a district court’s denial of a
habeas claim “aris[ing] out of process issued by a State court”
until and unless a federal court has issued a COA. 28 U.S.C.
§ 2253(c)(1)(A); Miller-El, 537 U.S. at 336. We accordingly
construe Carter’s arguments on these uncertified claims as a
motion to expand the COA. See 9th Cir. R. 22-1(e).
“A certificate of appealability may issue [in federal
habeas review of state proceedings] only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (emphasis added); see Wilson
v. Belleque, 554 F.3d 816, 825–26 (9th Cir. 2009). This
statutory requirement “serves a gatekeeping function.”
Payton v. Davis, 906 F.3d 812, 818 (9th Cir. 2018). In
enacting § 2253, “Congress confirmed the necessity and the
requirement of differential treatment for those appeals
deserving of attention from those that plainly do not.” Miller-
El, 537 U.S. at 337. “It follows that issuance of a COA must
not be pro forma or a matter of course.” Id.
Nevertheless, the “standard for obtaining a COA is not a
particularly exacting one.” Wilson, 554 F.3d at 826. “[A]
court of appeals should not decline the application for a COA
merely because it believes the applicant will not demonstrate
an entitlement to relief.” Miller-El, 537 U.S. at 337. Rather,
“[a]t the COA stage, the only question is whether the
applicant has shown that ‘jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.’”
Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El,
537 U.S. at 327). But when a district court “denies a habeas
petition on procedural grounds without reaching the
CARTER V. DAVIS 59
prisoner’s underlying constitutional claim,” a COA can issue
only if the prisoner shows that (1) “jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling,” and (2) “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S.
473, 484 (2000).
We ordered supplemental briefing on several of the
uncertified claims. Given the low bar for issuing a COA, see
Miller-El, 537 U.S. at 338, for the reasons discussed below,
we issue a COA on one claim not certified by the Central
District that alleged ineffective assistance of counsel at the
penalty phase. Although we issue a COA, we affirm the
denial of habeas relief on this claim because the California
Supreme Court’s determination that counsel satisfied
Strickland’s deferential standard is not contrary to or an
unreasonable application of federal law. Richter, 562 U.S.
at 105.
A. Claim 6 of the Central District Habeas Petition:
Ineffective Assistance of Counsel at the Penalty Phase
Similar to the claim certified by the Southern District that
Carter’s counsel was ineffective during the penalty phase,
claim six in Carter’s Central District habeas petition argued
that if his attorneys had conducted more than an “initial
attempt” at an investigation, they would have uncovered more
evidence of child abuse and brain damage. Presentation of
this additional evidence, he contends, would have changed
the result at the penalty phase. We, however, can find no
grounds for believing that the California Supreme Court
unreasonably denied relief given the record of counsels’
collective efforts.
60 CARTER V. DAVIS
1. Mitigation Evidence Presented at Penalty Phase
Counsel called twenty-one witnesses to present mitigating
evidence. Carter’s siblings, Jerry and Polly, testified that
their parents were alcoholics who often came home late after
drinking with “extreme arguing” that included hitting,
throwing furniture, and throwing each other. Their mother
also sometimes “g[o]t carried away” administering discipline
with the children. Although Jerry denied that Carter was
treated “that much worse” than Jerry, other Nome residents
testified that Jerry was treated better than Carter. One
neighbor even testified that Carter was “more like an orphan”
when the boys were young.
Set against this background, the jury heard about dramatic
instances of abuse and Carter’s unusual family life. They
heard about a time when Carter was seven or eight that their
mother came home around 2:00 a.m. but started to leave
again to pick up their father, and Carter tried to get her to stay
home by “t[aking] off running after the car,” “holler[ing] at
[her] to stop,” and “h[anging] on to the bumper and tried to
stop the car for quite a ways,” being dragged over a gravel
road. They heard that Carter’s father chained him to a bed at
least once when he was only eight or nine years old.
The jury heard that in the midst of all this misery, Carter
often ran away for several days at a time, including once to
Anchorage by plane. Around age eight or nine, Carter’s
parents sent him to the Jessie Lee Home, far from Nome,
which Carter’s sister Polly described as “a jail or something
for children.” Even when the family traveled near the Home,
they did not stop to visit him, which “shocked” Polly.
CARTER V. DAVIS 61
On appeal, post-conviction counsel submitted declarations
tending to show that Carter being held in chains was not a
one-time event. Childhood friends, classmates, and adults
wrote in post-conviction declarations that they saw Carter
handcuffed and chained to Carter’s cabin, or held in a
makeshift jail cell. One police officer who investigated
allegations of abuse at the Carter house said he saw Carter,
and possibly Jerry, chained to the floor with a bowl of water
next to them. Counsel also asserted that Carter suffered from
organic brain damage and Fetal Alcohol Syndrome at the
time of the crimes, and that evidence to that effect should
have been presented.
2. Ineffective Assistance of Counsel
Carter argues that trial counsel were ineffective because
they failed to investigate and present more mitigating
evidence regarding child abuse and possible brain damage.
Since there is no state-court reasoned decision on this issue,
Carter must show that “there was no reasonable basis for the
state court to deny relief.” Richter, 562 U.S. at 98. He
cannot.
a. Performance
First, the California Supreme Court could reasonably have
concluded that counsel did not perform deficiently because
their presentation was based on strategic choices after a
reasonable investigation. A defense attorney has a duty to
make reasonable investigations that enable informed
decisions about how best to represent the client. Strickland,
466 U.S. at 691; Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th
Cir. 1994). But “[j]udicial scrutiny of counsel’s performance
must be highly deferential,” Strickland, 466 U.S. at
62 CARTER V. DAVIS
689—“doubly so” when § 2254(d) is also involved, Richter,
562 U.S. at 105. Carter has the burden to “identify the acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.” Strickland,
466 U.S. at 690.
Gillingham testified in a post-conviction declaration that
his performance at sentencing could have been better in
various ways:
• He was “unable to build rapport or develop
[Carter’s] confidence,” which “contributed to
[his] inability [to] present a compelling case in
mitigation;”
• He was unable to secure Carter’s mother’s
cooperation, as “she was not willing to discuss her
life, petitioner’s birth father, circumstances
surrounding his birth, his childhood, or any other
subject related to her family;”
• He “failed and omitted to prepare a social
historian or cultural anthropologist” or “a
psychiatrist, psychologist or other mental health
professional,” even though he believed Carter’s
“childhood and adolescence were neglectful and
alienating, and [was] aware of his long-term drug
and alcohol abuse;”
• Although he “suspected the possibility of organic
brain damage,” and a mental health professional
he consulted suggested an MRI, he did not request
an MRI or PET scan; and
CARTER V. DAVIS 63
• He generally “was unable to formulate any
coherent strategy or plan to defend petitioner in
guilt or penalty phases of trial.”
As the district court explained, however, Gillingham
falling on his sword “in retrospect” is “not dispositive.”
Rather, to fairly assess attorney performance, a court “must
judge the reasonableness of counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of
counsel’s conduct.” Strickland, 466 U.S. at 690. Viewed in
that light, and especially given that “counsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment,” the California Supreme Court could
reasonably have concluded that Gillingham’s team did not
perform deficiently. See id.
Carter’s attorneys went to great lengths to investigate
Carter’s troubled childhood. Both Gillingham and Morrissey
traveled to Nome to interview family members and other
residents, and their investigator Casey Cohen made four
separate trips to Alaska and spoke with about forty different
people. Cohen tried very hard to speak with Carter’s mother
because he considered her “a very important” “primary
witness to his early childhood.” Although he spoke to her “at
least three times” in person, and “probably several times by
phone,” Carter’s mother refused to cooperate, including by
telling others not to communicate with Cohen.
While acknowledging the “resistance” his defense team
faced from “unhelpful” Nome residents, Carter claims that if
his counsel had done more than “an initial attempt” at an
investigation, they would have gotten more people to testify
and presented a fuller picture of the extent of the abuse Carter
64 CARTER V. DAVIS
suffered as a child. But the problem is not that Carter’s
counsel made only an “initial attempt” at an investigation, but
rather that they diligently followed leads and were met with
dead ends. Cf. Wiggins, 539 U.S. at 523–25 (finding counsel
unreasonably abandoned their investigation even though
records in their possession put them on notice of possible
child abuse). For example, although Cohen “pressed her hard
to be honest with” investigators, Edna Buffas, whose father
worked with Jim Carter and had “always” known the Carters,
repeatedly called Dean “happy-go-lucky” and said “she
couldn’t think of anything that might have improved the
Carter family.”
Any “failure to investigate thoroughly” here resulted not
“from inattention,” but from thwarted attempts. See Wiggins,
539 U.S. at 526. Attorneys are expected to formulate
reasonable strategies that “balance limited resources in accord
with effective trial tactics and strategies.” Richter, 562 U.S.
at 107. Thus when they hit dead ends like this, they may
abandon those inquiries, especially if they determine they are
“distractive from more important duties.” Id. (quoting Bobby
v. Van Hook, 558 U.S. 4, 11 (2009) (per curiam)).
Moreover, Carter’s arguments downplay his own role in
what he claims to be a stunted investigation. See Strickland,
466 U.S. at 691 (“The reasonableness of counsel’s actions
may be determined or substantially influenced by the
defendant’s own statements or actions.”). Indeed, there was
evidence that Carter himself told Polly and Jerry not to talk
to defense investigators. As another example, Carter argued
that “if Gillingham and Carter did not have a conflict, then
Carter could have encouraged his mother and siblings to
cooperate with trial counsel, which then would have led to a
more fruitful mitigation investigation.” But if this alleged
CARTER V. DAVIS 65
conflict prevented his mother and siblings from cooperating
in a way that Carter should benefit from, he has not explained
how. Moreover, Carter himself could have given the defense
team the details he claims people could have provided. See
id. (“[W]hen the facts that support a certain potential line of
defense are generally known to counsel because of what the
defendant has said, the need for further investigation may be
considerably diminished or eliminated altogether.”). The
California Supreme Court could reasonably have determined
that the investigation was not inadequate.
Carter also argues that it was “unreasonable” for trial
counsel to decide “to focus their investigative efforts on
developing evidence about Carter’s moderately successful life
as an adult.” But Carter has not “overcome the presumption
that, under the circumstances,” counsel’s investigation and
presentation “might be considered sound trial strategy”
developed after a thorough investigation. Id.
at 689–91(citation omitted). Indeed, there is evidence that
this is so. In a memo written after interviewing Jerry Carter,
Cohen wrote, “As the interview progressed we felt that there
was no history of child abuse so significant that it would tie
in with a general theory as-to why Dean ends up murdering
anyone.” He expanded,
[A] penalty phase defense would be focused
as follows: To use Jerry only to tell the good
about Dean and to plead with the jury to spare
his life. To not try and construct a theory
around any kind of child abuse. To lay out
Dean’s life as it occurred. To recount how he
perceived some problem deeply enough to try
and run away from home from age 7 onward.
To tell how he got into trouble, went to
66 CARTER V. DAVIS
institutions, and eventually grew up. Then, as
an adult he rehabilitates himself, gets a good
job, marries, and settles down. But problems
in the marriage develop.
“[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690. “There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.” Id. at 689.
Carter again relies heavily on Wiggins, 539 U.S. 510. But
in Wiggins, defense counsel failed to present any evidence of
the defendant’s life history, justifying this as “a tactical
judgment not to present mitigating evidence at sentencing”
and instead dispute Wiggins’ direct responsibility for the
murder. 539 U.S. at 521. Here, the jury heard much about
the abuse, including how Carter was treated worse than Jerry,
chained at least once, and ran away multiple times because of
the misery. As the district court reasoned, the California
Supreme Court may reasonably have concluded that trial
counsel decided not to present this evidence because (a) the
jury would not have responded well to the insinuation that a
child abused this badly would inevitably go on to rape, kill,
and burglarize multiple women; (b) that the evidence of Fetal
Alcohol Syndrome or brain damage would not have been well
received because of the evidence that Carter acted so
rationally over such a long period of time; and (c) that the
evidence largely duplicated what they already presented.
For example, declarations from Vaughn Johnson, Chuck
Reader, and Cheryl Stavish that Carter was chained—which
may or may not have been describing the same incident—are
CARTER V. DAVIS 67
compelling, but the jury knew that Carter was chained as a
child. Moreover, some of the evidence Carter faults his
counsel for not presenting contradicted other evidence
presented. For example, Jerry testified he himself was never
chained, so the Officer’s possible testimony saying that Jerry
might have been chained would have been less helpful. Jerry
also denied that Carter was treated “that much worse” than he
was, so the value of additional evidence regarding the
disparity between the two was minimal.
Additionally, as the government points out, many of the
declarations Carter now submits rest on hearsay. For
example, Cheryl Stavish testified that Polly told her that she
used to hear Carter’s father beating or whipping him; Officer
Martin stated that Sophie Swanson told him the boys were
chained every time the Carter parents went out to drink,
which was frequently; and Chuck Reader declared that Ivan
Johnson told him Carter was chained and locked up “almost
all of the time.” Moreover, some witnesses are less than
confident in their claims. For example, Michael Ashmasuk
testified that he and his friends “assumed Jim Carter had
locked [Carter] in the closet,” (emphasis added); Officer
Martin stated that he “found Dean and Jerry Carter chained to
the floor,” but clarified that he “could see the chain on Dean,
but [did not] remember seeing the chain on Jerry.” The state
court could reasonably have concluded that the investigation
was sufficient.
The question here is not whether Carter’s attorneys should
have introduced more mitigating evidence, but rather whether
the investigation supporting counsel’s decision not to
introduce more mitigating evidence was reasonable. See id.
at 523. The California Supreme Court may reasonably have
68 CARTER V. DAVIS
concluded that the answer to that question was yes, that
counsel’s decision was reasonable.
b. Prejudice
Even if Carter’s defense team performed deficiently, the
California Supreme Court could reasonably have concluded
that Carter was not prejudiced by their performance. To
show prejudice, Carter must show that “there is a reasonable
probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S.
at 695. But here, there was no reasonable probability that the
outcome would have been different if a jury had heard more
evidence about the extent of the abuse Carter suffered,
especially given the hearsay, contradictory, and weak nature
of the additional evidence. Id. at 694.
A death verdict with overwhelming record support is less
likely to have been affected by errors than one only weakly
supported by the record. Id. at 696. As the California
Supreme Court noted and Carter concedes, there was “strong
evidence directly linking defendant to the charged murders.”
Carter, 117 P.3d at 527.
B. Remaining Uncertified Claims
We conclude that no jurist of reason would find it
debatable that any of Carter’s remaining uncertified claims
states the denial of a constitutional right. See Wilson,
554 F.3d at 826. We therefore deny a COA as to the rest of
the claims not certified by the Southern and Central District
Courts.
CARTER V. DAVIS 69
V. CONCLUSION
For the foregoing reasons, in Case No. 13-99003, the
judgment of the United States District Court for the Central
District of California is AFFIRMED.
For the foregoing reasons, in Case No. 13-99007, the
judgment of the United States District Court for the Southern
District of California is AFFIRMED.
Carter’s supplemental motion to expand the certificate of
appealability, filed October 6, 2015, is GRANTED as to
Claim 6 in Case No. 13-99003, and otherwise DENIED.