Curtis Fauber v. Ronald Davis ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS LYNN FAUBER, No. 17-99001
Petitioner-Appellant,
D.C. No.
v. 2:95-cv-06601-
GW
RONALD DAVIS, Warden, California
State Prison at San Quentin, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted January 24, 2022
Pasadena, California
Filed August 5, 2022
Before: Paul J. Watford, Daniel A. Bress, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Bress;
Dissent by Judge Watford
2 FAUBER V. DAVIS
SUMMARY *
Habeas Corpus/Death Penalty
The panel affirmed the district court’s judgment denying
Curtis Fauber’s habeas corpus petition challenging his
murder conviction and death sentence.
The district court certified four claims for appeal.
Claims 10(a) and (c) and Claim 41(a)(1)(16) all
concerned the prosecutor’s alleged improper vouching for
the credibility of witness Brian Buckley by reading to the
jury the plea agreement in which Buckley agreed to testify
against Fauber. In Claim 41(a)(1)(16), Fauber argued that
trial counsel was ineffective for failing to object to the
alleged vouching. The panel held that under Antiterrorism
and Effective Death Penalty Act (AEDPA), the California
Supreme Court’s decision rejecting Fauber’s ineffective
assistance claim was not contrary to or an unreasonable
application of clearly established law; the California
Supreme Court could reasonably conclude that even if
counsel acted deficiently, there was no prejudice. In Claims
10(a) and (c), Fauber argued that the alleged vouching, and
the state court’s allowance of the same, violated Fauber’s
due process rights. The panel held that Fauber procedurally
defaulted his due process vouching claims, and that even if
the due process claims were not procedurally defaulted, they
would fail on the merits because the alleged vouching was
harmless.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FAUBER V. DAVIS 3
In Claim 28(c), Fauber argued that the state trial court
improperly excluded his unaccepted plea offer as mitigating
evidence at the penalty phase. The panel held that no clearly
established federal constitutional law holds that an
unaccepted plea offer qualifies as evidence in mitigation that
must be admitted in a capital penalty proceeding. The panel
held that regardless, Fauber cannot show prejudice. The
panel wrote that given the extreme aggravating factors that
the State put forward coupled with Fauber’s already
extensive but unsuccessful presentation of mitigating
evidence, there is no basis to conclude that the jury would
have reached a different result if it had considered Fauber’s
unaccepted plea.
The panel denied Fauber’s request to expand the
certificate of appealability to include four additional claims.
Dissenting in part, Judge Watford would grant Fauber’s
habeas petition as to the exclusion of the plea offer at the
penalty phase. Noting that the prosecutor argued that Fauber
must be executed because he was likely to kill again if
sentenced to life in prison, Judge Watford wrote that the trial
court’s exclusion of the prior offer of a plea deal with a life
sentence prevented Fauber from rebutting this claim, thereby
violating clearly established federal law, an error that was
not harmless.
4 FAUBER V. DAVIS
COUNSEL
John S. Crouchley (argued) and Ajay V. Kusnoor, Deputy
Federal Public Defenders; Cuauhtemoc Ortega, Federal
Public Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.
Jonathan Matthew Krauss (argued), A. Scott Hayward, and
Xiomara Costello, Deputy Attorneys General; James
William Bilderback II and Dana M. Ali, Supervising Deputy
Attorneys General; Lance W. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant
Attorney General; Rob Bonta, Attorney General; Office of
the Attorney General, Los Angeles, California; for
Respondent-Appellee.
FAUBER V. DAVIS 5
OPINION
BRESS, Circuit Judge:
In 1988, a California jury sentenced Curtis Fauber to
death for murdering Thomas Urell with an ax. The
California Supreme Court affirmed Fauber’s conviction and
sentence on direct appeal and later denied his state habeas
petition. Fauber now seeks federal habeas relief. He argues
that the state prosecutor improperly vouched for a witness’s
credibility, that his attorney was ineffective in not objecting
to the vouching, and that the state trial court, in the penalty
phase, improperly excluded the prosecution’s earlier plea
offer to Fauber as claimed mitigating evidence.
We hold that Fauber’s claims lack merit. The state
court’s decisions are not contrary to or an unreasonable
application of clearly established federal law, 28 U.S.C.
§ 2254(d)(1), and one of Fauber’s claims is procedurally
defaulted. We affirm the judgment of the district court.
I
A
More than thirty years ago, Curtis Fauber and his friend
Brian Buckley broke into Thomas Urell’s home to steal
drugs. When Urell woke up and discovered the intruders,
Fauber bludgeoned Urell to death with the blunt side of an
ax. Extensive evidence connected Fauber to the crime,
including Buckley’s testimony (which was corroborated in
key parts by unindicted confederate Mel Rowan), Urell’s
autopsy, various pieces of physical evidence, and Fauber’s
own admissions. We now summarize the facts based on the
record before us and the California Supreme Court’s
6 FAUBER V. DAVIS
decision on Fauber’s direct appeal. See People v. Fauber,
831 P.2d 249 (Cal. 1992).
Fauber and Buckley met in the Army in January 1985.
They became close friends, with Fauber visiting Buckley’s
family during breaks in service. In June 1985, the Army
discharged Fauber and Buckley, and the two went to
Buckley’s mother’s apartment in Ventura. After spending
time in his home state of New Mexico, Fauber later returned
to Ventura in the early summer of 1986 to stay with Buckley.
That summer, Fauber and Buckley regularly used drugs
with Buckley’s neighbors, Jan Jarvis and Mel Rowan. At
one point, Jarvis mentioned that she had a former boyfriend
named Thomas Urell who sold cocaine. Fauber was
intrigued by the possibility of robbing Urell and asked where
he lived. Jarvis drew a map showing the location and layout
of Urell’s house. The group talked about robbing the home
and a week later, all four of them drove by Urell’s house to
scout it. Rowan told Fauber to “rip off” Urell immediately,
but Fauber said: “No, we want to check it out for a few days.”
Buckley and Fauber surveilled the house two more times
before the murder.
Approximately four days later, in the nighttime on July
16, 1986, Buckley and Fauber put their plan into motion.
Fauber drove with Buckley to a store near Urell’s home and
parked his motorcycle there. They went to an adjacent beach
and donned gloves, hats, and bandannas. Fauber carried a
sawed-off shotgun. Fauber mentioned that he might have to
kill Urell to prevent him from being a witness.
The two men walked to Urell’s home and entered
through a window. Buckley followed Fauber to the
bedroom, where Jarvis had said the drugs would be located.
They entered and found Urell sleeping in bed. As they
FAUBER V. DAVIS 7
entered, Urell woke up. In a fake Mexican accent, Fauber
said: “Don’t move.” Urell pleaded with Fauber not to hurt
him and said they could take anything they wanted. Buckley
held the shotgun, and Fauber forced Urell onto his stomach
and taped his hands behind his back.
With Urell detained, Fauber and Buckley searched the
residence and took assorted items, including a small amount
of cocaine. They also found a locked safe. Urell said it had
nothing valuable in it and that he did not know the
combination. Fauber then found an ax under the bed. Fauber
held the ax above Urell and, without warning, bludgeoned
him in the back of the neck with the ax’s blunt side. Buckley
heard the blow and left the room as Urell began making a
hissing noise. Seconds later, Fauber delivered a second
blow, which silenced Urell.
Fauber met Buckley in the kitchen and suggested putting
the safe in Urell’s vehicle. When Buckley asked him
whether Urell was dead, Fauber said he did not know.
Fauber then returned to the bedroom and Buckley heard
Fauber hit Urell several more times with the ax. Fauber and
Buckley loaded the safe onto Urell’s El Camino and drove
to Buckley’s apartment.
Upon arrival around 1:00 a.m., Fauber and Buckley went
to Rowan’s apartment to obtain a key to a basement
storeroom. Rowan saw a safe in the back of Urell’s El
Camino and asked Fauber if Urell had been home during the
burglary. Fauber responded that Urell had not been home.
Fauber and Buckley took everything they had stolen from
Urell’s residence and put it in a trailer owned by Buckley’s
mother. They then left to dispose of Urell’s El Camino over
a cliff.
8 FAUBER V. DAVIS
After returning to the apartment, Fauber and Buckley
used Urell’s cocaine. At this point, Rowan returned and
pressed Fauber about Urell’s whereabouts. Fauber then
admitted that Urell had been home. He also admitted that he
had hit Urell with an ax and believed he had killed him.
Fauber told Rowan he had killed Urell because Urell saw his
face, and Fauber “was not ready to leave Ventura yet.”
Fauber also acknowledged that Urell was struggling to
breath when he left.
The next day, Fauber discovered how to open the safe.
After emptying its contents, Fauber and Buckley took the
safe to another town and dumped it near a lake because
Rowan did not want it in his storeroom. The safe contained
small amounts of jewelry, gold, and silver coins; Jarvis was
directed to throw most of it away.
When Urell did not appear for work the next day, Urell’s
friend Ronald Siebold went to his home and found Urell’s
lifeless body lying face down with his hands taped behind
his back and a pillow on his head. The police arrived ten
minutes later. Sheriffs who responded to the call described
the room as “ransacked”—with drawers thrown open and
clothes turned out—consistent with a robbery. They found
an ax standing upright at the foot of the bed. Another police
detective found the remnants of narcotics paraphernalia.
The Chief Medical Examiner for Ventura County,
Dr. Frederick Lovell, examined Urell’s body at the scene.
He confirmed that Urell had died roughly 14 to 22 hours
earlier. He also observed that Urell’s shoulders and chest
had a blue hue, suggesting that his blood lacked sufficient
oxygen when he died.
Dr. Lovell also conducted an autopsy. The autopsy
demonstrated that Urell’s hands had been tied behind his
FAUBER V. DAVIS 9
back before he was killed. Blood splatter indicated that Urell
had been struck repeatedly in the back of the neck. Wounds
on Urell’s lower left neck extending towards the skull
evidenced closely grouped blows caused by a major force
from a rectangular object. The wounds likely were struck
from the same position and were consistent with the blunt
side of an ax. The blows had prompted a “large amount of
bleeding and hemorrhag[ing],” causing paralysis and
limiting Urell’s ability to breath. Urell also had a broken
neck and “one bone was separated from the other where
they’re normally tied together by a series of very heavy,
tough ligaments.” Dr. Lovell concluded that based on the
“heavy purple discoloration of the face and chest,” the
“extreme engorgement of the eyes” with bleeding under the
skin, and the widespread hemorrhaging, Urell had died of
either asphyxia or suffocation.
Over the next few weeks, police began to connect Fauber
to the murder. On July 20, 1986, they found Urell’s El
Camino 125 feet off the side of a cliff. Then, on July 31,
they found the door to Urell’s safe at a nearby lake.
Eventually, the police arrested Hal Simmon, an acquaintance
of Fauber’s, after discovering that Simmon had been using
Urell’s telephone calling card. Simmon told the police he
had received the number from “Brian and Curtis” and
described where they lived. This led authorities to Fauber
and Buckley.
In September 1986, police arrested Buckley for a traffic
violation. Buckley provided details about Urell’s murder,
believing the information would not be used against him.
That same month, police arrested Rowan for a parole
violation. Rowan admitted his involvement in the robbery
and discussed the murder.
10 FAUBER V. DAVIS
With the evidence mounting, the Ventura County police
sent a warrant for Fauber’s arrest to his hometown of
Española, New Mexico. Española police arrested Fauber,
and officers then flew to New Mexico to interview him and
take possession of any incriminating property. Fauber
waived his Miranda rights. He admitted to police that Jarvis
had told him about someone who had a lot of drugs and had
drawn him a diagram to help him commit the robbery. He
recalled that he and Buckley followed Jarvis and Rowan as
they drove past the house.
Police found a piece cut from Urell’s calling card in
Fauber’s wallet. In a camper that Fauber used in Ventura,
police also found a road atlas that belonged to Urell and that
was stamped with the name of his employer.
B
On January 7, 1987, the Ventura County District
Attorney (DA) charged Fauber with murder, robbery, and
burglary, and filed a notice of intent to seek the death
penalty. Fauber pleaded not guilty. In November 1987,
police arrested Buckley in connection with Urell’s murder.
As part of his plea agreement for second-degree murder,
Buckley agreed to testify against Fauber. The prosecution
granted Rowan full immunity on the condition that he too
testify against Fauber.
Fauber’s trial began in mid-December 1987. The
prosecution offered Rowan and Buckley as its principal
witnesses. Both confirmed the details of the murder and
Fauber’s involvement. Relevant to Fauber’s vouching and
ineffective assistance of counsel claim, the prosecution read
Buckley’s plea agreement to the jury and utilized the plea
agreement in the State’s closing argument. We will discuss
the facts relating to this issue in greater detail below in our
FAUBER V. DAVIS 11
analysis of the vouching-related claims. The jury convicted
Fauber of first-degree murder, robbery, and burglary.
Fauber, 831 P.2d at 257.
C
The trial then moved to the penalty phase for a
determination of whether Fauber should be sentenced to
death. In this phase, the State presented evidence that Fauber
took part in two uncharged killings, among other violent
misdeeds.
The prosecution presented evidence that a few months
before he returned to Ventura, Fauber murdered his longtime
friend, Jack Dowdy, Jr., and threatened Jack’s wife, Kim.
Witnesses testified that Fauber had fallen in love with Kim
and wanted her to move with him to Albuquerque. When
Kim did not agree, Fauber resorted to threats and violence,
pulling a gun on Jack, holding Kim at gunpoint, appearing at
Kim’s house unannounced and trying to choke her while she
slept, and telling Jack that he had ruined Fauber’s chances
with Kim and that he would therefore kill her.
Around this time, Jack disappeared. Fauber found Kim
and told her suggestively that Jack would not bother her
anymore. A couple of days later, Fauber confronted Kim
again and gave her an ultimatum: come with him or he would
kill everyone in her house. He then put a knife to her throat
until she agreed to leave with him. In the middle of May
1986, Kim’s uncle Tony confronted Fauber and asked him
to stop terrorizing his family. Fauber refused. Then, Fauber
admitted to Tony that he killed Jack. Fauber also later told
Buckley that “he had killed the husband of a girl named Kim
because Kim was afraid of her husband, who had been a
friend of [Fauber’s].” Fauber asked Buckley to help him dig
up the body and re-bury it so animals would not expose it.
12 FAUBER V. DAVIS
At the penalty phase, the prosecution also presented
evidence that Fauber murdered an acquaintance named
David Church at a Memorial Day party at Buckley’s
apartment in 1986. According to witnesses, Church had
appeared drunk at the party and demanded drugs. When
Church threatened to go to the police, Fauber and his friend,
Chris Caldwell, took Church away.
Police found Church’s decomposed body in a creek bed
months later. Buckley testified that Fauber told him he
killed Church with an ax handle, that Church “was a hard
guy to kill,” and that he needed to get rid of the ax because
it was covered in blood. Buckley testified that Caldwell had
also told him about the killing. Another witness from the
party, Pam McCormick, testified that she overheard a
conversation in which Fauber discussed how to get rid of a
body.
In response to the State’s case in aggravation, Fauber’s
counsel presented mitigating evidence concerning Fauber’s
troubled childhood and possible mental instability, and to
emphasize Fauber’s positive qualities. It is uncontradicted
that defense counsel called twenty-seven witnesses to testify
on Fauber’s behalf, including friends and family, a social
anthropologist who had conducted an eight-month
investigation into Fauber’s upbringing, and a psychologist
who administered intelligence and neuropsychological
screening tests on Fauber.
At the penalty phase, Fauber also wanted to present
evidence that the prosecution had initially made him a plea
offer that would have allowed Fauber to avoid the death
penalty in exchange for testifying against Caldwell and
Buckley, and that Fauber refused the offer. The trial court
disallowed this, finding that the plea agreement was “totally
irrelevant” because it “does not relate to the defendant’s
FAUBER V. DAVIS 13
character, prior record or circumstance of the offense.” The
trial court’s exclusion of Fauber’s unaccepted plea
agreement forms the basis for another assignment of error,
and we will set forth more facts relating to this issue below
in our analysis.
The jury sentenced Fauber to death.
D
The California Supreme Court affirmed Fauber’s
convictions and sentence on direct appeal, People v. Fauber,
831 P.2d 249 (Cal. 1992), and the United States Supreme
Court denied certiorari. Fauber v. California, 507 U.S. 1007(1993). In January 1993, Fauber filed a state habeas petition,
which the California Supreme Court summarily denied on
the merits.
Fauber filed his original federal habeas petition in May
1997, which the district court stayed so that Fauber could
exhaust state post-conviction remedies. Fauber then filed a
first amended federal habeas petition. Following a round of
rulings by the district court, Fauber filed his operative
second amended federal habeas petition in 2012.
In May 2017, the district court denied Fauber’s petition.
The district court then certified four claims for appeal:
Claims 10(a), (c): whether the prosecutor
improperly vouched for Buckley’s credibility
by reading Buckley’s plea agreement to the
jury.
Claim 41(a)(1)(16): whether trial counsel
was ineffective for failing to object to the
alleged vouching.
14 FAUBER V. DAVIS
Claim 28(c): whether Fauber’s plea offer was
improperly excluded as mitigating evidence
at the penalty phase.
In this court, Fauber presses all four certified claims and
seeks a certificate of appealability on four additional
claims. 1
II
“We review a district court’s denial of a 28 U.S.C.
§ 2254 petition de novo.” Bolin v. Davis, 13 F.4th 797, 804
(9th Cir. 2021). But unless otherwise indicated below, we
evaluate Fauber’s claims under the deferential standard of
review in the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), because Fauber filed his federal habeas
petition after AEDPA’s effective date. See Lindh v. Murphy,
521 U.S. 320, 336 (1997). Under AEDPA, a federal habeas
petitioner cannot obtain relief unless the state court’s
decision (1) is “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States”; or
(2) is “based on an unreasonable determination of the facts
1
Fauber requests that we expand the certificate of appealability to
include whether his counsel was ineffective in failing to present
additional mitigating evidence and not further rebutting the
prosecution’s aggravating evidence; whether the district court should
have granted a hearing on the destruction of certain physical evidence;
and whether the cumulative effect of trial counsel’s performance during
the penalty phase warrants relief. We have carefully reviewed these
assignments of error, including by ordering supplemental briefing. We
now DENY Fauber’s request to expand the certificate of appealability
because he has not made a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
FAUBER V. DAVIS 15
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
To meet AEDPA’s “‘unreasonable application of’ prong,
a petitioner ‘must show far more than that the state court’s
decision was merely wrong or even clear error.’” Bolin,
13 F.4th at 804 (quoting Shinn v. Kayer, 141 S. Ct. 517, 523
(2020) (per curiam)). The state court’s application of federal
law must stand unless it was “objectively unreasonable.”
Bell v. Cone, 535 U.S. 685, 698–99 (2002). To prevail,
Fauber must demonstrate that the state court’s decision “is
so obviously wrong that its error lies ‘beyond any possibility
for fairminded disagreement.’” Kayer, 141 S. Ct. at 523
(quoting Harrington v. Richter, 562 U.S. 86, 104 (2011)).
“This is a challenging standard to meet.” Bolin, 13 F.4th at
805.
III
We begin with Claims 10(a) and (c) and Claim
41(a)(1)(16), which all concern the prosecution’s alleged
vouching using Buckley’s plea agreement, and defense
counsel’s alleged ineffectiveness in failing to object to the
same. We hold that under AEDPA, the California Supreme
Court’s decision rejecting Fauber’s ineffective assistance
claim was not contrary to or an unreasonable application of
clearly established federal law. 28 U.S.C. § 2254(d)(1). We
further hold that Fauber procedurally defaulted his due
process vouching claims but that regardless, Fauber cannot
show prejudicial error.
A
We first set forth the relevant facts and rulings relating
to these claims. Buckley’s plea agreement stated that
prosecutors would conduct a preliminary interview with him
16 FAUBER V. DAVIS
to assess his credibility. If the DA did not find Buckley
credible, then Buckley’s case would proceed to trial. The
plea agreement provided that during Fauber’s trial, the judge
who heard Buckley’s testimony would “make any necessary
findings as to his truthfulness” for purposes of Buckley
honoring his plea agreement, if there were a dispute between
Buckley and the State. At Fauber’s trial, and during the
government’s direct examination of Buckley, the prosecutor
read the plea agreement to the jury and Buckley confirmed
that he entered it. Defense counsel did not object.
The prosecution returned to Buckley in its closing
argument. The prosecutor told jurors that Brian Buckley’s
credibility was the key to the case, stating at the outset: “If
you don’t believe anything he says, you’ll probably acquit
the defendant. If you believe some of what Brian Buckley
says, you’ll find the defendant guilty of robbery and burglary
and felony murder. And if you believe most of what Brian
Buckley says, you’ll convict the defendant of everything.”
Next, the prosecutor rhetorically asked the jury: “what
would motivate Brian Buckley to frame somebody who was
his good friend, his Army buddy, and in fact somebody who
was his good friend into August at least?” The prosecutor
told the jury to “remember that Brian Buckley has a
motivation in this case to testify truthfully. And truth is not
according to the DA, [or] to me. Truth is according to the
Judge.” The prosecution cited Buckley’s plea agreement
and said that “the most important part of that agreement is
that if there is some dispute as to Brian Buckley’s
truthfulness, that dispute will be determined by the trier of
fact, the Judge who hears the proceedings in which Brian
Buckley testifies.” Later, the prosecutor revisited this point
and noted that the “main element” of Buckley’s plea
agreement was that he had to testify truthfully. The
FAUBER V. DAVIS 17
prosecutor then read the agreement aloud, stopping to note
that the trial judge’s assessment of Buckley’s candor was
key to the plea agreement.
The prosecutor in closing argument emphasized record
evidence that, in the State’s view, showed that Buckley and
Rowan were credible witnesses. The prosecutor argued that
Buckley’s testimony was credible because it was supported
“in almost all the details” by Rowan’s testimony. Further,
the prosecution pointed out, Buckley’s core testimony was
confirmed by Fauber himself when he waived his Miranda
rights and admitted that Jarvis drew him a map of Urell’s
house that Fauber then used to scope out Urell’s residence.
The prosecutor at closing also underscored the
importance of Fauber’s confession to Rowan that he had
killed Urell. The prosecutor read some of Rowan’s more
critical testimony aloud and argued that Fauber’s admission
to Rowan was consistent with the autopsy results. Rowan
had testified that Fauber admitted he thought he killed Urell,
and that Urell was “having a hard time” breathing. The
autopsy found that Urell had died of either suffocation or
asphyxiation.
Before the prosecution’s case and during final
instructions, the trial judge instructed jurors that they were
the “sole judges” of witness credibility:
Every person who testifies under oath is a
witness. You are the sole judges of the
believability of a witness and the weight to be
given the testimony of each witness. In
determining the believability of a witness,
you may consider anything that has a
tendency in reason to prove or disprove the
truthfulness of the testimony of the witness.
18 FAUBER V. DAVIS
The trial judge also read an instruction that explained the
factors jurors could use to evaluate witness credibility,
including the witness’s ability to remember and
communicate, bias, motive, attitude, any prior inconsistent
statements, and any admission of untruthfulness. As defense
counsel would later do, during closing argument the
prosecutor reminded jurors of their responsibility to assess
witness credibility.
On direct appeal, the California Supreme Court rejected
Fauber’s vouching claim. Fauber, 831 P.2d at 264–66. It
held that Fauber forfeited this claim because his counsel had
not objected at trial. Id. at 264. Alternatively, the Court held
that even if the claim were preserved, there was no reversible
error. Id. The Court acknowledged that, upon a proper
objection, the trial court should have excluded the portions
of the plea deal suggesting that the district attorney or trial
judge would need to find Buckley credible. Id. at 265.
But the Court found that any error was harmless. It
explained that there was no prejudice because “[t]he
prosecutor argued for Buckley’s credibility based on the
evidence adduced at trial, not on the strength of extrajudicial
information obliquely referred to in the plea agreement.” Id.Further, “common sense suggests” that the jury will assume
that the prosecution had found Buckley credible, “else he
would not be testifying.” Id. For these and other reasons,
“[t]he jury could not reasonably have understood Buckley’s
plea agreement to relieve it of the duty to decide, in the
course of reaching its verdict, whether Buckley’s testimony
was truthful.” Id.B
We turn first to Fauber’s claim that his trial counsel
provided constitutionally ineffective assistance under the
FAUBER V. DAVIS 19
Sixth Amendment by not objecting to the prosecutor’s
reliance on Buckley’s plea agreement. Fauber argues that,
without the introduction of that agreement, jurors would not
have found Buckley to be a credible witness, and that
without Buckley’s credible testimony, the jury would not
have convicted him of Urell’s murder or sentenced him to
death.
The Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), provides the governing
framework for evaluating this claim. See Bolin, 13 F.4th at
804. To prove ineffective assistance, Fauber must “show
both that his counsel provided deficient assistance and that
there was prejudice as a result.” Richter, 562 U.S. at 104.
Because the State does not argue that counsel adequately
performed, we will assume without deciding that counsel’s
performance was constitutionally deficient and limit our
analysis to the prejudice component.
To show prejudice, Fauber must prove that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result . . . would have been different.” Strickland,
466 U.S. at 694. This standard is “highly demanding.”
Kayer, 141 S. Ct. at 523 (quotations omitted). “A reasonable
probability means a ‘substantial,’ not just ‘conceivable,’
likelihood of a different result.’” Id. (quoting Cullen v.
Pinholster, 563 U.S. 170, 189 (2011)); see also Bolin,
13 F.4th at 804. But under AEDPA, Fauber’s showing is
heightened. Given the AEDPA overlay, “the question is
whether the state court reasonably could have concluded that
the evidence of prejudice fell short of Strickland’s
deferential standard.” Staten v. Davis, 962 F.3d 487, 500
(9th Cir. 2020).
In this case, the California Supreme Court summarily
denied Fauber’s ineffective assistance claim on the merits.
20 FAUBER V. DAVIS
AEDPA applies under these circumstances. Cullen,
563 U.S. at 187. “Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Richter, 562 U.S.
at 98. As a result, we must determine “what arguments or
theories . . . could have supported the state court’s decision;
and then [] ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the Supreme] Court.”
Id. at 102. We hold that the state court’s rejection of
Fauber’s Strickland claim was not objectively unreasonable
because the California Supreme Court could conclude that
Fauber failed to establish Strickland prejudice.
1
To begin, the state court could reasonably conclude that
the content and context of the alleged vouching makes it
unlikely to have had any material impact on jurors. Indeed,
that was what the California Supreme Court held on direct
appeal when it addressed Fauber’s underlying due process
vouching claim (after first concluding it was procedurally
defaulted). Fauber, 831 P.2d at 264–66. The record bears
out the California Supreme Court’s observation that at
closing argument, the prosecutor focused heavily on the
body of evidence that the jury had heard. Id. at 265. This
included the testimony of Buckley and Rowan confirming
the circumstances of Urell’s murder and Fauber’s role in it;
Fauber admitting the murder to Rowan; Fauber’s own
incriminating statements to police; and various other
evidence connecting Fauber to the crime.
In addition, the California Supreme Court could fairly
reason, as it did on direct appeal, that “common sense”
indicates that the jury “will usually assume . . . that the
FAUBER V. DAVIS 21
prosecutor has at some point interviewed the principal
witness and found his testimony believable, else he would
not be testifying.” Fauber, 831 P.2d at 265. That the
prosecution to some extent reaffirmed a point the jury would
likely presume anyway further reduces the prejudicial
impact of the State utilizing Buckley’s plea agreement at
closing.
Any prejudice was further mitigated by the trial court’s
instructions to the jury—and reminders from both the
prosecution and defense—that the jurors were the ultimate
arbiters of witness credibility. Jurors were repeatedly told
they were the “sole judges” of whether a witness was
believable. The trial court further instructed the jury as to
the factors they could consider in evaluating each witness’s
credibility, such as the witness’s motive, bias, and ability to
remember and communicate.
The repeated admonitions to jurors that they would
assess witness credibility further reduces the prejudice
associated with the alleged vouching. The California
Supreme Court could permissibly conclude that the
instructions made it unlikely that jurors believed that
someone other than them bore the responsibility for
assessing Buckley’s veracity. See Richardson v. Marsh, 481
U.S. 200, 206 (1987) (applying “the almost invariable
assumption of the law that jurors follow their instructions”);
United States v. Shaw, 829 F.2d 714, 718 (9th Cir. 1987)
(holding that vouching was harmless because the
instructions “could only be taken by the jury to mean that the
credibility of the witness was by no means established by the
plea agreement, and that the issue was wholly open for the
jury to decide”).
Fauber relatedly takes issue with the prosecutor’s
statement that the trial judge would determine whether
22 FAUBER V. DAVIS
Buckley had testified truthfully in the event of a dispute. He
argues that this made the jury believe they had less
responsibility to gauge Buckley’s credibility. But the
context of this statement belies this inference. The
prosecutor raised Buckley’s plea agreement to underscore
that Buckley had an incentive to testify truthfully because
the trial court would determine his credibility, in the event
of a dispute. Fauber, 831 P.2d at 265. As the California
Supreme Court validly reasoned on direct appeal, it was
obviously “implicit . . . that the need for such a
determination would arise, if at all, in connection with
Buckley’s sentencing, not in the process of trying [Fauber’s]
guilt or innocence.” Id. at 265. In other words, “[t]he
context of the remarks made it clear that determination
would occur if the prosecutor sought to repudiate its
agreement with Buckley after trial in defendant’s case.” Id.
at 266.
2
The California Supreme Court could also reject Fauber’s
ineffective assistance claim because the evidence against
Fauber was overwhelming, confirming Buckley’s testimony
and Fauber’s guilt irrespective of the prosecution’s reliance
on Buckley’s plea agreement. Cullen, 563 U.S. at 198(holding that petitioner failed to show prejudice due to the
extensive evidence that the prosecution presented); United
States v. Young, 470 U.S. 1, 17–20 (1985) (prosecutorial
vouching was harmless in light of the “overwhelming
evidence” of guilt); United States v. Lew, 875 F.2d 219, 223–
24 (9th Cir. 1989) (holding that government’s vouching for
two witnesses by eliciting testimony about the truthfulness
requirements of their plea agreements did not rise to the level
of plain error because “there was substantial evidence
FAUBER V. DAVIS 23
against [the defendant] independent of the credibility of” the
two witnesses).
To begin, Mel Rowan—testifying under full immunity—
corroborated much of Buckley’s testimony. Rowan, who
was Buckley’s neighbor and socialized with Fauber before
and after the murder, confirmed the circumstances
surrounding the crime. Rowan testified that Jarvis told
Fauber and Buckley about Urell. He confirmed that Jarvis
drew a map of Urell’s house and a layout of the interior to
help them commit the robbery. He told the jury that he drove
by Urell’s home with Fauber, Buckley, and Jarvis to scout it
out. He testified that Fauber and Buckley spoke about
committing the burglary. And he confirmed that Fauber had
a sawed-off shotgun that night. Each of these details aligned
with Buckley’s testimony and Fauber’s admissions after
waiving his Miranda rights.
Rowan then corroborated what happened after the
murder. He testified that Fauber and Buckley returned to the
apartment at 1:00 a.m. and that he helped Fauber unload the
safe from Urell’s El Camino and move it into the storage
area beneath the apartment. He recounted that Fauber
managed to open part of the safe. And he noted that Fauber
and Buckley disposed of the safe because Rowan did not
want it in his storeroom. Rowan also testified that he told
Fauber and Buckley to “get rid of [Urell’s] El Camino,” that
Fauber and Buckley drove off with the vehicle, and that he
did not see it again. Rowan’s testimony matched Buckley’s
in each respect.
Perhaps most importantly, Rowan testified that Fauber
murdered Urell and how he did it. Rowan testified that
Fauber told him that Urell was home during the robbery.
Then, when Rowan asked Fauber if he had hurt Urell, Fauber
admitted that “he thought he’d killed him.” Fauber said that
24 FAUBER V. DAVIS
he had “hit him” and that Urell “was having a hard time”
breathing. Fauber also told Rowan why he killed Urell:
Urell saw his face, and Fauber “wasn’t ready to leave
Ventura yet.” This matched Buckley’s testimony that
Fauber had killed Urell to prevent him from being a witness
to the crime. And the autopsy also corroborated Rowan’s
testimony—showing that Urell was struck repeatedly with
an object consistent with the blunt side of an ax, and that he
died of asphyxiation or suffocation. Underscoring Rowan’s
importance at trial, the prosecutor’s discussion of Rowan’s
testimony was among the last topics the jury heard before
deliberating.
Other evidence also corroborates Buckley’s testimony
about the circumstances surrounding the crime. Fauber
himself confirmed what happened before the murder when
he waived his Miranda rights and admitted that Jarvis told
him about Urell and that he scouted Urell’s house with
Jarvis, Rowan, and Buckley. And physical evidence
connected Fauber to Urell, namely, Hal Simmon using
Urell’s telephone card number (Simmon said that Fauber
gave it to him), Fauber having part of the calling card in his
wallet, and Urell’s road atlas being found in a camper that
Fauber used.
* * *
In sum, the California Supreme Court could reasonably
conclude that even if Fauber’s counsel acted deficiently in
failing to object to the prosecution’s use of Buckley’s plea
agreement, there was no prejudice under Strickland.
Fairminded jurists could determine that Fauber’s counsel
performing differently would not create a “substantial
likelihood of a different result” than the one the jury reached.
Kayer, 141 S. Ct. at 524 (quoting Cullen, 563 U.S. at 189).
FAUBER V. DAVIS 25
C
We turn next to Claims 10(a) and 10(c), which share a
factual nexus with Fauber’s ineffective assistance
allegations. Here Fauber argues that the prosecutor
vouching for Buckley’s credibility through his plea
agreement, and the state trial court’s allowance of the same,
violated Fauber’s due process rights under the Fourteenth
Amendment. See Darden v. Wainwright, 477 U.S. 168, 181
(1986) (“The relevant question is whether the prosecutors’
comments ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’”) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Fauber’s argument fails for two reasons: this claim is
procedurally defaulted and Fauber cannot show prejudice
even if the claim were preserved.
First, Fauber’s claim is procedurally defaulted. We lack
jurisdiction “when (1) a state court has declined to address a
prisoner’s federal claims because the prisoner had failed to
meet a state procedural requirement, and (2) the state
judgment rests on independent and adequate state procedural
grounds.” Walker v. Martin, 562 U.S. 307, 316 (2011)
(quotations and alterations omitted). To qualify as
independent, a state procedural rule must not “rest primarily
on federal law, or . . . be interwoven with the federal law.”
Coleman v. Thompson, 501 U.S. 722, 735 (1991). “State
rules count as adequate if they are firmly established and
regularly followed.” Johnson v. Lee, 578 U.S. 605, 606
(2016) (per curiam) (quotations omitted).
Here, the California Supreme Court held that Fauber
procedurally defaulted his due process vouching claim by
failing to object to the prosecutor reading Buckley’s plea
agreement to the jury. Fauber, 831 P.2d at 264. This
holding rested on California’s contemporaneous objection
26 FAUBER V. DAVIS
rule. Under California law, a party must make a proper and
timely objection at trial to preserve the argument on appeal.
See Cal. Evid. Code. § 353; People v. Ramos, 15 Cal.4th
1133, 1171 (1997).
We have repeatedly recognized California’s
contemporaneous objection rule as “an adequate and
independent state law ground” that forecloses our review.
See, e.g., Zapien v. Davis, 849 F.3d 787, 794 n.2 (9th Cir.
2015); Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir.
2011); Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th
Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092–93 (9th
Cir. 2004). That remains the case even though the California
Supreme Court also went on to address Fauber’s claim on
the merits. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10
(1989).
For the first time in his reply brief, Fauber argues that we
should not find his due process vouching claim procedurally
barred because he has shown cause and prejudice to excuse
the default. While we could find this argument forfeited
because Fauber did not raise it in his opening brief, United
States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992), the
argument fails regardless.
We may review a state court decision that rests on an
adequate and independent state ground when a party has
shown cause for the forfeiture and prejudice flowing from it.
Walker, 562 U.S. at 316. To show cause, a petitioner must
point to “some objective factor external to the defense [that]
impeded his adherence to the procedural rule.” United States
v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) (quotations
omitted). “An attorney error does not qualify as ‘cause’ to
excuse a procedural default unless the error amounted to
constitutionally ineffective assistance of counsel.” Davila v.
Davis, 137 S. Ct. 2058, 2062 (2017). Prejudice to excuse the
FAUBER V. DAVIS 27
default “requires the petitioner to establish not merely that
the errors at trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.” Bradford v. Davis, 923 F.3d 599, 613 (9th Cir.
2019) (quotations and alterations omitted).
Fauber cannot meet the “cause and prejudice” standard.
To excuse his procedural default, Fauber points only to
counsel’s alleged ineffective assistance in failing to object to
the prosecution’s use of Buckley’s plea agreement. But we
have already explained that counsel’s allegedly deficient
performance did not rise to the level of a Sixth Amendment
violation because Fauber cannot show prejudice. Given the
State’s extensive evidence showing that Fauber killed Urell,
Fauber cannot demonstrate that the result of his trial would
have been different had his counsel objected and
successfully prevented the prosecution from relying upon
Buckley’s plea agreement. United States v. Ratigan,
351 F.3d 957, 965 (9th Cir. 2003) (holding that “[i]n order
to excuse his procedural default, [petitioner] must show that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense”) (quotations omitted).
Second, even if Fauber’s due process claims were not
procedurally defaulted, they would fail on the merits
because, once again, the alleged vouching was harmless.
The parties spar at length over whether, assuming we could
get past the procedural default, AEDPA should apply to the
California Supreme Court’s alternative holding that
Fauber’s vouching claim failed for lack of prejudice, given
the California Supreme Court’s reliance on a state law
harmlessness standard. We need not resolve this
disagreement. Even without AEDPA, under the standard in
28 FAUBER V. DAVIS
Brecht v. Abrahamson, 507 U.S. 619 (1993), Fauber cannot
prevail.
Under Brecht, “habeas relief is only available if the
constitutional error had a ‘substantial and injurious effect or
influence’ on the jury verdict or trial court decision.” Jones
v. Harrington, 829 F.3d 1128, 1141 (9th Cir. 2016) (quoting
Brecht, 507 U.S. at 623); see also Davis v. Ayala, 576 U.S.
257, 268 (2015). “If so, or if one is left in grave doubt, the
conviction cannot stand.” Gill v. Ayers, 342 F.3d 911, 921
(9th Cir. 2003) (quoting Kotteakos v. United States, 328 U.S.
750, 765 (1946)). Here, for the same reasons that we
rejected Fauber’s ineffective assistance claim, the
prosecution’s reliance on Buckley’ plea agreement did not
exert a substantial and injurious effect on the jury.
Therefore, Fauber’s due process claims would fail even
setting aside the unexcused procedural default.
IV
In Claim 28(c), Fauber argues that the state trial court
improperly excluded his unaccepted plea offer as mitigating
evidence at the penalty phase. We conclude that Fauber is
not entitled to relief. No clearly established federal
constitutional law holds that an unaccepted plea offer
qualifies as evidence in mitigation that must be admitted in
a capital penalty proceeding. Regardless, Fauber cannot
show prejudice: given the extreme aggravating factors that
the State put forward coupled with Fauber’s already
extensive but unsuccessful presentation of mitigating
evidence, there is no basis to conclude that the jury would
have reached a different result if it had considered Fauber’s
unaccepted plea.
FAUBER V. DAVIS 29
A
We again begin with the relevant facts and rulings. At
the penalty phase, Fauber wanted to present evidence that
the prosecution had initially offered him a plea that would
have allowed him to avoid the death penalty in exchange for
testifying against Buckley and Caldwell, and that Fauber
refused the offer. Fauber’s counsel explained that he wanted
to present Fauber’s rejection of the plea deal as character
evidence that demonstrated Fauber’s loyalty to his friends.
He also wanted to present the plea agreement itself as
evidence that the district attorney “felt that [Fauber] was an
appropriate [person] for life imprisonment rather than the
gas chamber.” The prosecutor moved to exclude any
reference to the unaccepted plea.
The trial court found the evidence inadmissible under
California Evidence Code § 352. Regarding the plea offer
itself, the court concluded that it was “totally irrelevant”
because it “does not relate to the defendant’s character, prior
record or circumstance of the offense.” The court noted that
such an agreement is “just the district attorney’s position at
one time for reasons known to the district attorney. It has no
bearing on the defendant whatsoever.” The trial court also
excluded Fauber’s rejection of the plea offer. Fauber
rejecting the offer had “very low relevancy” and “very low
probative value” as mitigating evidence of loyalty. Instead,
the plea agreement threatened to confuse the jury and unduly
prolong the trial.
At closing argument, the prosecution maintained that
Fauber deserved the death penalty. The prosecution argued
to the jury that “the only appropriate penalty in this case is
the death penalty,” stating, for example: “The defendant has
demonstrated vividly that he is a man who, if given the
opportunity, will kill again, maybe a prison guard, maybe an
30 FAUBER V. DAVIS
inmate, maybe somebody that makes friends with him,
somebody that annoys him.”
On direct appeal, the California Supreme Court rejected
Fauber’s claim that the trial court erred in excluding from
the penalty phase evidence about Fauber’s unaccepted plea
offer. Fauber, 831 P.2d at 288. The Court recognized that
“a capital defendant must be allowed to present all relevant
mitigating evidence to the jury.” Id. (citing Skipper v. South
Carolina, 476 U.S. 1, 4 (1986), and Lockett v. Ohio, 438 U.S.
586 (1978)). But at the same time, “the trial court determines
relevancy in the first instance and retains discretion to
exclude evidence whose probative value is substantially
outweighed by the probability that its admission will create
substantial danger of confusing the issues or misleading the
jury.” Id. (citing Cal. Evid. Code § 352). In this case, the
California Supreme Court held, the trial court did not err in
treating Fauber’s refusal of a plea offer as inadmissible. Id.The Court agreed with the trial court that Fauber’s plea
agreement provided no insight into his character and was
“meaningless.” Id. at 288. “Standing alone,” the Court
concluded, “[t]he fact that the offer was made, like the fact
that it was refused,” “sheds no light on [Fauber’s] character
and would likely mislead rather than assist the jury in its
determination.” Id. In particular, “such an offer may reflect
leniency rather than a belief that the defendant is less
culpable for the crime charged.” Id.Considering Fauber’s rejection of the plea offer, the
California Supreme Court further noted that “[t]o supply
meaning to the bare fact of the refusal, additional inquiry
regarding the underlying reasons would have been required.”
Id. But “[s]uch examination, as the trial court concluded,
had the potential to mislead and confuse the jury.” Id.FAUBER V. DAVIS 31
Justice Mosk wrote a separate concurrence on this issue.
Id. at 296–97 (Mosk, J., concurring). He concluded that the
trial court may have erred in excluding evidence of plea
bargaining but that the evidence “would have added little, if
anything, of marginal value. Therefore, any error could not
have affected the outcome within any reasonable possibility,
and must be held harmless beyond a reasonable doubt.” Id.
at 297.
B
Before us, Fauber renews his argument that the state
court erred in excluding as supposed mitigating evidence the
State’s life-sentence plea offer and Fauber’s rejection of it.
On appeal, however, Fauber has adjusted his argument
somewhat, maintaining that he was entitled to introduce this
evidence in mitigation as a matter of due process to rebut the
State’s argument that he presented a future danger. The
State argues that Fauber forfeited this argument by failing to
raise it either before the state court or the district court.
It is certainly true that Fauber’s theory at the very least
reflects some degree of refinement from the argument he
presented previously. In state court and before the district
court, Fauber largely argued that the unaccepted plea was
mitigating because it reflected positively on his character by
showing his loyalty to his friends. Fauber maintained that
the plea offer was “a matter in mitigation bearing upon the
circumstances of the offense and the character of the
Defendant herein.” The state trial court and California
Supreme Court appear to have reasonably understood
Fauber’s argument in those terms.
Before the state trial court, however, Fauber’s counsel
also stated that the plea offer was relevant because it
reflected “the district attorney’s attitude toward [Fauber] and
32 FAUBER V. DAVIS
the offenses at some point prior to trial.” And Fauber stated
in his state court briefs that the plea offer showed the district
attorney “felt that [Fauber] was an appropriate [person] for
life imprisonment rather than the gas chamber,” because “a
prior offer of a life sentence . . . suggests that in the opinion
of the prosecutor, the defendant’s character is such that he
should not be put to death.” At least to this extent, Fauber
preserved the argument he raises now. We thus turn to the
merits of this claim.
C
1
In a series of decisions beginning with Lockett v. Ohio,
438 U.S. 586, 604–05 (1978) (plurality op.), Eddings v.
Oklahoma, 455 U.S. 104, 112 (1982), and Skipper v. South
Carolina, 476 U.S. 1, 4 (1986), the Supreme Court
established that in the capital sentencing context, and under
the Eighth and Fourteenth Amendments, “the sentencer may
not be precluded from considering, and may not refuse to
consider, any constitutionally relevant mitigating evidence.”
Buchanan v. Angelone, 522 U.S. 269, 276 (1998). In this
line of cases, the Supreme Court held that capital sentencers
may “not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and
any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Eddings,
455 U.S. at 110 (quoting Lockett, 438 U.S. at 604–05); see
also McCleskey v. Kemp, 481 U.S. 279, 306 (1987). In
addition, “[w]here the prosecution specifically relies on a
prediction of future dangerousness in asking for the death
penalty,” the “relevance of evidence of probable future
conduct in prison as a factor in aggravation or mitigation of
an offense is underscored.” Skipper, 476 U.S. at 5 n.1.
FAUBER V. DAVIS 33
The Supreme Court has also made clear, however, that
these constitutional requirements do not render states
incapable of placing any limits on what might qualify as
mitigating evidence. Lockett affirmed that “[n]othing in this
opinion limits the traditional authority of a court to exclude,
as irrelevant, evidence not bearing on the defendant’s
character, prior record, or the circumstances of his offense.”
438 U.S. at 604 n.12. Thus, state courts in penalty phase
proceedings “‘retain the traditional authority to decide that
certain types of evidence may have insufficient probative
value to justify their admission,’” and “they may enact
reasonable rules governing whether specific pieces of
evidence are admissible.” United States v. Tsarnaev, 142 S.
Ct. 1024, 1038 (2022) (quoting Skipper, 476 U.S. at 11(Powell, J., concurring in the judgment)). The Supreme
Court has thus “expressly held that ‘the Eighth Amendment
does not deprive’ a sovereign ‘of its authority to set
reasonable limits upon the evidence a capital defendant can
submit, and control the manner in which it is submitted.” Id.(quoting Oregon v. Guzek, 546 U.S. 517, 526 (2006))
(alterations omitted); see also Stenson v. Lambert, 504 F.3d
873, 891 (9th Cir. 2007) (holding under AEDPA that state
court was not objectively unreasonable in excluding claimed
mitigating evidence).
Fauber relies heavily on two of our cases, Summerlin v.
Schriro, 427 F.3d 623, 640 (9th Cir. 2005) (en banc), and
Scott v. Schriro, 567 F.3d 573, 584 (9th Cir. 2009) (per
curiam), to argue that his unaccepted plea offer should
qualify as mitigating evidence. In Summerlin, we held that
capital defense counsel provided constitutionally deficient
assistance of counsel by “utterly fail[ing] in his duty to
investigate and develop potential mitigating evidence for
presentation at the penalty phase.” 427 F.3d at 631. In
explaining why counsel’s deficient performance caused
34 FAUBER V. DAVIS
prejudice, we noted (among other things) that the prosecutor
had initially offered the defendant a plea agreement that
would have spared his life, but the offer was later withdrawn.
Id. 640–41. We regarded the unentered plea agreement as
supportive of Strickland prejudice because it showed that
“this was not by any means a clear-cut death penalty case.”
Id. at 640.
Summerlin did not address whether the unaccepted plea
offer was itself mitigating evidence that the sentencer was
required to consider. But Scott did address it, although in a
somewhat truncated fashion. In Scott, we held that the state
court had relied on an inadequate procedural bar in denying
a capital defendant’s request for post-conviction relief.
567 F.3d at 576–77. In detailing the evidentiary proceedings
that should take place on remand on the defendant’s claim
that his counsel provided ineffective assistance at the penalty
phase, we specified areas of mitigating evidence that the
court should evaluate. Id. 583–85. Relevant here, we noted
that the prosecution had made a plea offer to the defendant,
but that defense counsel had rejected it over the defendant’s
objection. Id. at 584. Citing Summerlin, we stated that
“evidence of the plea offer could have been introduced
during the sentencing phase as mitigation.” Id. That was
because “[t]he plea offer’s mitigatory effect is clear: the
prosecution thought this was not a clear-cut death penalty
case.” Id. (citing Summerlin, 427 F.3d at 631). 2
2
In a parenthetical, Scott described Summerlin as “holding that
evidence the prosecution offered to allow the defendant to plead guilty
to second-degree murder and aggravated assault was mitigating evidence
that could be admitted in the sentencing phase after the defendant had
been found guilty of first-degree murder.” Scott, 567 F.3d at 584 (citing
Summerlin, 427 F.3d at 640). While Scott would bind us in an
appropriate case, its description of Summerlin was not accurate.
FAUBER V. DAVIS 35
Although supportive of Fauber in some sense, these
cases do not govern here. Summerlin did not decide the same
issue we now consider, 427 F.3d at 640–41, and neither case
decided the issue under AEDPA’s standard of review, see
Scott, 567 F.3d at 584, 586 (no state court decision on the
merits); Summerlin, 427 F.3d at 628–29 (habeas petition
filed pre-AEDPA). Regardless of how close Scott or
Summerlin might be to this case, the question before us is
whether the California Supreme Court’s decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1) (emphasis added).
And on this point, the Supreme Court has been clear:
“circuit precedent does not constitute ‘clearly established
Federal law, as determined by the Supreme Court,’
28 U.S.C. § 2254(d)(1). It therefore cannot form the basis
for habeas relief under AEDPA.” Parker v. Matthews,
567 U.S. 37, 48 (2012) (per curiam); see also, e.g., Lopez v.
Smith, 574 U.S. 1, 4 (2014) (per curiam) (“We have
emphasized, time and again, that the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.
1214, prohibits the federal courts of appeals from relying on
their own precedent to conclude that a particular
constitutional principle is ‘clearly established.’”); Marshall
v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam) (holding that
under AEDPA, circuit precedent may not be “used to refine
or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] Court has
not announced”).
When we consider the only precedent that matters here—
Supreme Court precedent—we cannot conclude that the
state court’s denial of relief was objectively unreasonable.
36 FAUBER V. DAVIS
The reason is straightforward: the Supreme Court has never
held that an unaccepted plea offer qualifies as
constitutionally relevant mitigating evidence, whether to
rebut future dangerousness or for any other allegedly
mitigating reason. See Hitchcock v. Sec’y, Florida Dep’t of
Corr., 745 F.3d 476, 482 (11th Cir. 2014) (“The Supreme
Court has never held that a prosecutor’s offer to take the
death penalty off the table in return for a guilty plea is a
mitigating circumstance.”). Fauber relies on the general
principle that states “cannot limit the sentencer’s
consideration of any relevant circumstance that could cause
it to decline to impose the death penalty.” McCleskey,
481 U.S. at 306. But for AEDPA purposes, that general
principle is too general. And Fauber has not shown that the
California Supreme Court unreasonably applied it.
The Supreme Court has repeatedly reminded lower
courts applying AEDPA not to “fram[e] [Supreme Court]
precedents at a high level of generality.” Nevada v. Jackson,
569 U.S. 505, 512 (2013) (per curiam); see also Brown v.
Davenport, 142 S. Ct. 1510, 1525 (2022); Woods v. Donald,
575 U.S. 312, 318 (2015). Were the rule otherwise, lower
courts “could transform even the most imaginative extension
of existing case law into clearly established federal law,”
“collapsing the distinction between ‘an unreasonable
application of federal law’ and what a lower court believes
to be ‘an incorrect or erroneous application of federal law.”
Jackson, 569 U.S. at 512 (quoting Williams v. Taylor,
529 U.S. 362, 412 (2000)). Such an approach “would defeat
the substantial deference that AEDPA requires.” Id.Here, nothing in Supreme Court precedent establishes
that an unaccepted plea offer reflects an “aspect of a
defendant’s character or record [or] any of the circumstances
of the offense,” such that a state court must treat it as
FAUBER V. DAVIS 37
constitutionally relevant mitigating evidence. Eddings,
455 U.S. at 110. Even if the rule of Lockett could be
extended in that manner, nothing in Supreme Court
precedent mandated that extension. See White v. Woodall,
572 U.S. 415, 426 (2014) (holding that AEDPA “does not
require state courts to extend [Supreme Court] precedent or
license federal courts to treat the failure to do so as error”).
It would therefore not be objectively unreasonable for a
state court to instead conclude that an unaccepted plea offer
differs from the types of mitigating evidence classically
treated as constitutionally relevant, such as cognitive
limitations, see e.g., Smith v. Texas, 543 U.S. 37, 44 (2004),
an abusive upbringing, see, e.g., Wiggins v. Smith, 539 U.S.
510, 525, 528 (2003); Eddings, 455 U.S. at 115; the
circumstances of the offense, see, e.g., Parker v. Dugger,
498 U.S. 308, 314 (1991); or positive character traits, see,
e.g., Wong v. Belmontes, 558 U.S. 15, 21 (2009) (per
curiam). That is, given the various reasons that plea offers
are made (and rejected), they could be regarded as not
meaningfully tied to the defendant’s “personal responsibility
and moral guilt,” Enmund v. Florida, 458 U.S. 782, 801
(1982), or “directly related to the personal culpability of the
criminal defendant,” Penry v. Lynaugh, 492 U.S. 302, 319
(1989), overruled on other grounds by Atkins v. Virginia,
536 U.S. 304 (2002). A state court could thus conclude that
introducing this evidence at the penalty phase is not
consonant with the constitutional objectives of the penalty
phase determination itself.
For these reasons, we respectfully disagree with our fine
dissenting colleague that the alleged constitutional violation
here is clearly established under AEDPA. The dissent
asserts that because the Supreme Court has “adopted a broad
rule” “requiring the admission of any relevant mitigating
38 FAUBER V. DAVIS
evidence,” it follows that the California Supreme Court’s
decision allowing the exclusion of the plea offer was
contrary to clearly established federal law. But under
AEDPA, when the Supreme Court sets forth rules that are
“more general, . . . their meaning must emerge in application
over the course of time.” Yarborough v. Alvarado, 541 U.S.
652, 664 (2004).
That is the case here. The Supreme Court has not
categorized an unaccepted plea offer as constitutionally
relevant mitigating evidence. Skipper, on which the dissent
principally relies, did not address that issue. And consistent
with the states’ traditional authority to place limits on the
admission of evidence that is insufficiently probative in
mitigation, Tsarnaev, 142 S. Ct. at 1038; Lockett, 438 U.S.
at 604 n.12, the California Supreme Court could reasonably
regard an unaccepted plea as qualitatively different from
other forms of evidence that have been regarded as
constitutionally mitigating. The dissent’s contrary position
would violate AEDPA’s precepts.
2
Further confirmation of this is found in the many cases
that have held—contrary to our decision in Scott—that
unaccepted plea offers do not qualify as mitigating evidence.
As the Eleventh Circuit has recognized, “[e]vidence of a
rejected plea offer for a lesser sentence . . . is not a mitigating
circumstance because it sheds no light on a defendant’s
character, background, or the circumstances of his crime.”
Hitchcock, 745 F.3d at 483. Indeed, it appears that every
other court besides our own has reached this conclusion. See
Wright v. Bell, 619 F.3d 586, 600 (6th Cir. 2010); Owens v.
Guida, 549 F.3d 399, 422 (6th Cir. 2008); Bennett v. State,
933 So. 2d 930, 953 (Miss. 2006); Howard v. State,
238 S.W.3d 24, 47 (Ark. 2006); Neal v. Commonwealth,
FAUBER V. DAVIS 39
95 S.W.3d 843, 852–53 (Ky. 2003); Wisehart v. State,
693 N.E.2d 23, 64 (Ind. 1998); Wiggins v. State, 597 A.2d
1359, 1370 (Md. 1991), reversed on other grounds by
Wiggins v. Smith, 539 U.S. 510 (2003); Ross v. State,
717 P.2d 117, 122 (Okla. Crim. App. 1986).
We do not cite these out-of-circuit lower court cases as
reflective of clearly established law under § 2254(d)(1), but
rather as demonstrating that fairminded jurists could reach
the same conclusion that these many courts have. “[I]n the
face of authority that is directly contrary” to our case law,
“and in the absence of explicit direction from the Supreme
Court,” we “cannot hold” that the California Supreme
Court’s decision violates clearly established federal law.
Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir. 2006)
(amended op.); see also Kessee v. Mendoza-Powers,
574 F.3d 675, 679 (9th Cir. 2009) (“Because the Supreme
Court has not given explicit direction and because the state
court’s interpretation is consistent with many other courts’
interpretations, we cannot hold that the state court’s
interpretation was contrary to, or involved an unreasonable
application of, Supreme Court precedent.”).
Instead, cases like the Eleventh Circuit’s decision in
Hitchcock show how reasonable jurists could conclude that
an unaccepted plea agreement is not constitutionally relevant
mitigating evidence. Hitchcock held that a capital
defendant’s non-acceptance of a plea is “devoid of any moral
significance” from a capital punishment perspective because
Eighth Amendment mitigation is not “a matter of a particular
prosecutor’s willingness to bargain.” 745 F.3d at 482. In
particular, the Eleventh Circuit concluded:
Such a plea offer does not by itself show that
the prosecutor believed the defendant did not
deserve the death penalty. A plea offer of a
40 FAUBER V. DAVIS
non-capital sentence in a capital case may
simply reflect a desire to conserve
prosecutorial resources, to spare the victim’s
family from a lengthy and emotionally
draining trial, to spare them the possibility of
protracted appeal and post-conviction
proceedings (spanning in this case more than
three decades), or to avoid any possibility,
however slight, of an acquittal at trial. 3
Id. at 483. And although it did not decide the question of
constitutional relevance on this basis, the Eleventh Circuit
pointed out that “requiring the admission of rejected plea
offers as mitigating evidence in capital cases could have the
pernicious effect of discouraging prosecutors from
extending plea offers in the first place.” Id. at 484 & n.2
(citing Wright, 619 F.3d at 600).
Other cases rejecting Fauber’s argument have employed
similar reasoning as Hitchcock. See, e.g., Wright, 619 F.3d
at 599–601; Owens, 549 F.3d at 419–22; Neal, 95 S.W.3d
at 852–53. And applying AEDPA, the Sixth Circuit in
Wright rejected Fauber’s same argument in response to the
defendant’s contention that due process allowed him to
utilize the unaccepted plea to rebut the prosecution’s
argument of future dangerousness. See 619 F.3d at 599–600
(“Although our opinion in Owens did not address the
specific rebuttal argument that Wright has made before this
court—that Wright should be allowed to present evidence of
the alleged plea offer to rebut statements by the State at
closing argument suggesting that Wright might pose a
3
Indeed, as the dissent notes, the prosecutor told the trial court that
it made the initial plea offer to Fauber because it “did not have enough
evidence to convict Buckley and Rowan.”
FAUBER V. DAVIS 41
danger to other inmates if he received a life sentence rather
than the death penalty—[Owens’s] determination that plea
negotiations are not relevant evidence of mitigating
circumstances is still relevant here.”). As the Sixth Circuit
explained, “nothing in the alleged plea offer constitutes
relevant evidence that Wright would not pose a danger if
given a life sentence.” Id. at 601. That is because “[t]he
existence of a plea offer might indicate only that the state
believed its important interests in judicial efficiency and
finality of judgments were sufficient to outweigh any
potential risk associated with a life sentence, not that those
risks did not exist.” Id.In sum, other than our decision in Scott, the cases that
have addressed Fauber’s argument side with the California
Supreme Court’s result and reasoning here. Although Scott
took a different approach, we do not think the California
Supreme Court was objectively unreasonable in resolving
Fauber’s claim like the majority of courts to have addressed
the question. See Hitchcock, 745 F.3d at 483 (“We agree
with the seven courts (we make it eight) on the majority side
of this issue and not with the Ninth Circuit.”). Under
AEDPA—and until the Supreme Court speaks more
specifically on this issue—we cannot say these many other
courts were so obviously mistaken. For these same reasons,
the dissent’s attempt to discern clearly established law in
Fauber’s favor in the face of so much contrary precedent
does not withstand scrutiny.
3
Finally, we note that the California Supreme Court
offered a related rationale for holding that the trial court was
not required to allow in evidence of Fauber’s unaccepted
plea: it would require ancillary evidentiary proceedings into
“the underlying reasons” for the plea offer and its rejection,
42 FAUBER V. DAVIS
which “had the potential to mislead and confuse the jury.”
Fauber, 831 P.2d at 288. On the facts of this case, that
reasoning reflected a valid concern, and certainly was not
contrary to or an unreasonable application of clearly
established Supreme Court precedent. Indeed, the Supreme
Court has recognized that even under Lockett and its
progeny, evidence can be excluded based on state courts’
“evenhanded application” of their evidentiary rules, Skipper,
476 U.S. at 6, which could include, in appropriate cases, the
usual rules associated with balancing undue prejudice, jury
confusion, and consumption of time against possible
probative value, see Fauber, 831 P.2d at 287–88 (citing Cal.
Evid. Code § 352).
These considerations were relevant here. When Fauber
sought to have the unaccepted plea introduced, the
prosecution asked for “a hearing with witnesses to actually
establish the foundational basis” for the submission. The
prosecutor explained that he had gone back through his files
and located a letter showing that it was Fauber and his
counsel who initially proposed a plea arrangement, but that
Fauber then “got cold feet”—not because of loyalty towards
his friends but “because he didn’t want to plead to something
that was going to put him in prison for the rest of his life.”
The prosecutor further argued that if the trial court were
considering allowing the plea offer into evidence, the
prosecution would want to show that the offer was based on
the State’s knowledge of the facts when the offer was made,
but that the record had “changed dramatically” since that
time (with the implication that a plea offer was no longer
appropriate). To explore these various issues, the State
believed that the prosecutor, defense counsel, and Fauber
may all need to testify. It is not apparent Fauber was willing
FAUBER V. DAVIS 43
to do so, which would have likely opened the door to
potentially damaging cross-examination. 4
In whichever way the proceedings would have unfolded
in the trial court, it is apparent that introducing Fauber’s
unaccepted plea and his rejection of it was no
straightforward evidentiary matter. That only contributes to
our conclusion that the state court’s rejection of Fauber’s
Lockett argument—a ruling that was broadly consistent with
almost all case law on this issue—was not objectively
unreasonable.
D
Even if the trial court’s exclusion of the plea offer
violated clearly established federal law, there is no basis to
conclude that the result of the penalty phase would have been
any different had the jury learned of the plea offer and
Fauber’s rejection of it. The California Supreme Court did
not rule on this basis, and Fauber thus argues that AEDPA
does not apply. The State does not respond on this point,
and so we will evaluate this issue without AEDPA’s
deferential posture. The standard of review is ultimately
immaterial, however, because the exclusion of the plea offer
did not have a “substantial and injurious effect or influence”
on the jury’s decision. Brecht, 507 U.S. at 637.
4
The dissent errs in claiming we have “vastly overstate[d] the
complications that might have arisen from admitting the plea offer
evidence in this case.” Setting aside the fact that Fauber hardly presented
his arguments to the state court in the nuanced way that the dissent now
does, there is no basis for the dissent’s assumption that the only evidence
relevant to the State’s initial plea offer would come from the prosecutor.
Indeed, as we have noted, the prosecutor explained that it was Fauber
and his attorney who had originally proposed the plea deal.
44 FAUBER V. DAVIS
We will assume for purposes of our analysis here that
Fauber could have used the unaccepted plea agreement to the
maximum mitigating effect he claims. For reasons we have
already discussed, it is doubtful this assumption is
warranted: the prosecution was evidently poised to provide
testimony about the circumstances surrounding Fauber’s
rejection of the plea agreement and how circumstances had
changed since the State first discussed a plea offer with him.
It seems entirely possible that introduction of the plea
agreement could have been unhelpful to Fauber, or at the
very least a mixed bag. But again, we will assume otherwise.
An error is harmless in this context when “there is
overwhelming evidence of aggravating circumstances and
[the] proffered mitigation evidence is limited or relatively
minor.” Djerf v. Ryan, 931 F.3d 870, 886 (9th Cir. 2019)
(quotations omitted). Similarly, exclusion of evidence can
be harmless when, in light of the mitigating evidence that
was presented, the excluded evidence “would not have
affected the balance of mitigating against aggravating
circumstances.” Runningeagle v. Ryan, 825 F.3d 970, 985
(9th Cir. 2016). All of this is true here.
As an initial matter, the State presented highly
compelling aggravating circumstances. First and foremost,
the jury had already heard overwhelming evidence of
Fauber’s depraved ax-murder killing of Urell, a man he had
never met before. Fauber murdered Urell only to avoid
being implicated in the burglary of Urell’s home. And
Fauber went through with the murder despite the victim
being tied up and defenseless. Even after striking Urell
multiple times and reducing his breathing to labored hissing
and later silence, Fauber returned to Urell’s room and struck
him with the ax again. The highly disturbing autopsy
results—which demonstrated that Fauber had broken Urell’s
FAUBER V. DAVIS 45
neck and ruptured tough neck ligaments with the blunt side
of an ax—underscored the barbarity of the crime and the
decidedness of Fauber’s actions. The dissent’s effort to
minimize Fauber’s crime as “not especially cruel or heinous”
is thus unfounded. Indeed, the circumstances of Fauber’s
murder of Urell was “[t]he very first factor” in aggravation
that the prosecution asked the jury to consider.
At the penalty phase, the State also demonstrated that
Fauber had murdered two other people less than three
months before killing Urell. Evidence that a capital
defendant “had committed another murder” is “the most
powerful imaginable aggravating evidence.” Wong,
558 U.S. at 28 (quotations omitted). And, in this case, the
State demonstrated that Fauber murdered not only multiple
times but for varied reasons. The Urell murder showed
Fauber’s capacity for homicide during a violent felony. The
circumstances surrounding Fauber’s murders of David
Church and Jack Dowdy, Jr., meanwhile, confirmed
Fauber’s propensity for nearly spontaneous acts of extreme
violence (Church) as well as targeted, vendetta-style killing
(Dowdy).
In the Church murder, Fauber participated in the slaying
of an acquaintance merely to prevent the partygoer from
reporting Fauber’s drug use to the police. As with Urell,
Fauber hit Church with an ax handle, commenting to
Buckley that Church “was a hard guy to kill.”
The Dowdy murder was uniquely alarming for its own
reasons, given the series of violent events surrounding
Dowdy’s death. The victim was one of Fauber’s longtime
friends. Fauber, 831 P.2d at 276. Yet, Fauber repeatedly
terrorized his wife and her family because he was
romantically interested in her. Id. At different points,
Fauber pulled a gun on Dowdy, held Kim at gunpoint
46 FAUBER V. DAVIS
because she had hugged a friend, and threatened to “knock
her off.” Id at 276–79. One night, Kim woke up and found
that Fauber had broken in and was attempting to strangle her.
Id. Fauber admitted to multiple witnesses—Buckley, Kim’s
uncle, and Kim herself—that he killed Jack, whom he
believed was preventing him from having a relationship with
Kim. Id. at 279. After the murder, Fauber’s violent conduct
continued. He appeared at Kim’s grandmother’s home and
ordered Kim to come with him at knifepoint or he would kill
everyone in the house. Id. When later confronted by Kim’s
family, Fauber expressed no remorse. Id. 5
Fauber’s plea agreement and his rejection of it paled in
comparison to the extensive aggravating evidence of
Fauber’s three murders and other violent actions. 6 But the
unaccepted plea would have also added little to the robust
case of mitigation that defense counsel put on. Cf. Fauber,
831 P.2d at 297 (Mosk, J., concurring) (explaining that the
plea agreement “would have had added little, if anything, of
marginal value”). In a substantially comprehensive
5
The dissent attempts to minimize the aggravating evidence of
Fauber killing Dowdy and Church on the theory that this evidence was
relevant “primarily because [it] bore on Fauber’s future dangerousness,”
and that if Fauber’s unaccepted plea agreement had been introduced, the
prosecution “might have decided to avoid making a future dangerousness
argument altogether.” But there is no basis for the dissent’s speculation
on this point. And regardless, the evidence of Fauber killing Dowdy and
Church was highly relevant to Fauber’s reprehensibility, in addition to
his future dangerousness.
6
Fauber argues that the jury struggled to reach a decision at the
penalty phase because it submitted a note during deliberations that
stated: “If the jury is hung as to the decision, does the life without
possibility of parole prevail or does the penalty phase go over again?”
But the reason and context for this note is unclear and it cannot overcome
the clear import of the record evidence we have discussed above.
FAUBER V. DAVIS 47
mitigation portrait, Fauber’s counsel presented evidence of
Fauber’s troubled childhood, positive qualities, and possible
mental instability. Several of Fauber’s siblings and friends
testified about his unfortunate upbringing, including his
dysfunctional family life and the decrepit conditions of his
childhood home. They told the jury that Fauber was the
youngest of eleven children, only seven of whom survived
to adulthood. Fauber’s father was an unemployed alcoholic
who was verbally abusive and disciplined the children with
razor straps, belts, and buckles. Fauber did not finish high
school. As a teenager, he was involved in a motorcycle
accident that killed one of his brothers.
Counsel also presented two experts who testified about
Fauber’s background. Dr. Isabel Wright, Ph.D., conducted
an eight-month investigation into Fauber’s life. She testified
based on her travels to Fauber’s hometown and her
interviews of his neighbors, the school nurse, a Sunday
school teacher, a high school vice principal, a special
education worker, two counselors, truant and welfare
officers, and Fauber’s friends, family, and acquaintances.
Dr. Edward Grover, a psychologist, examined and ran tests
on Fauber. Dr. Grover told the jury that Fauber had average
intelligence and a possible organic brain deficit. Dr. Grover
also informed the jury that Fauber “had impaired
interpersonal skills and some difficulty keeping reality and
fantasy separated.” Fauber’s friends testified that he was a
good and caring person.
Although Fauber’s mitigation presentation did not
convince the jury, it was not without force. And the
mitigating evidence that defense counsel did put on was far
more powerful and probative of Fauber’s character and
culpability than the plea deal. We do not mean to suggest,
as the dissent claims, that Fauber’s mitigating evidence was
48 FAUBER V. DAVIS
“persuasive.” Given Fauber’s penchant for ax-murder and
violent assault, the aggravating factors here substantially
outweighed the mitigating evidence that Fauber put forward.
Instead, our point is that Fauber’s mitigation presentation
confirms that he put forward witnesses and experts who
could shed light on his character and culpability in a way that
the State’s plea offer could not. Therefore, there is no reason
to believe, as the dissent maintains, that evidence of the plea
offer was “likely to tip the scales in favor of a life sentence.”
In short, we conclude that any error in the refusal to
admit the plea offer was harmless. See Scott (Roger) v.
Ryan, 686 F.3d 1130, 1135 (9th Cir. 2012) (holding that
“[e]ven considering the totality of mitigation evidence that
Scott introduced at the district court on remand,” including
“evidence that the State once offered him a plea bargain,”
“we cannot say it would have made any difference in the
outcome”).
* * *
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
WATFORD, Circuit Judge, dissenting in part:
Before Curtis Fauber was tried for capital murder, the
Ventura County District Attorney’s office offered him a plea
deal under which Fauber would be sentenced to life in prison
without the possibility of parole, provided that he testified
against co-conspirators Brian Buckley and Chris Caldwell.
Fauber turned the offer down, went to trial, and was
convicted. At the penalty phase of his trial, Fauber sought
to introduce evidence of the plea offer to show that the
FAUBER V. DAVIS 49
District Attorney’s office did not believe the death penalty
was required in his case. The trial court excluded the
evidence on the ground that it had minimal relevance and
posed a substantial risk of misleading the jury and
prolonging the trial. During the penalty phase, the
prosecutor argued that Fauber must be executed because he
was likely to kill again if sentenced to life in prison. Due to
the trial court’s ruling, Fauber could not rebut this claim by
pointing to the District Attorney’s prior offer of a plea deal
with a life sentence. This exclusion of relevant mitigating
evidence violated clearly established federal law, and the
error was not harmless. I would therefore grant Fauber’s
habeas petition as to the exclusion of the plea offer at the
penalty phase. 1
I
Before the start of the penalty phase, the prosecutor filed
a motion in limine seeking to exclude any evidence related
to the plea offer. In response, Fauber argued that the offer
was relevant mitigating evidence that must be admitted
under Lockett v. Ohio, 438 U.S. 586 (1978). He asserted two
distinct theories of relevance: (1) the plea offer reflected the
District Attorney’s assessment of Fauber’s character and the
circumstances of his offense; and (2) Fauber’s rejection of
the plea offer showed the positive character trait of loyalty
to his friends.
The state trial court dismissed the first theory out of
hand, declaring that the offer itself was “totally irrelevant.”
1
I agree with the majority that Fauber is not entitled to relief on his
ineffective assistance and due process vouching claims. Accordingly, I
would not grant Fauber’s habeas petition with respect to the guilt phase
of his trial.
50 FAUBER V. DAVIS
The court gave greater consideration to the second theory but
ultimately ruled that Fauber’s rejection of the plea offer was
inadmissible under California Evidence Code § 352, which
permits the exclusion of evidence when its probative value
is substantially outweighed by the risk of delay, unfair
prejudice, confusing the issues, or misleading the jury. In
the court’s view, this evidence could be admitted only if
Fauber testified about his reasons for rejecting the offer,
which would permit the prosecutor to explain his decision to
make the offer in the first place. The court concluded that a
mini-trial on the significance of Fauber’s rejection of the
plea offer risked confusing the issue and misleading the jury.
In both the California Supreme Court and his federal
habeas petition, Fauber continued to press both theories of
relevance. This appeal, however, involves only the first
theory: that the prosecutor’s offer of a plea deal for life in
prison reflected an assessment of Fauber’s character and the
circumstances of his offense. As the majority recognizes,
Fauber has refined his claim in presenting it to this court. He
contends that the plea offer is specifically relevant to rebut
the prosecutor’s claim that Fauber would pose a danger to
others if spared the death penalty. He is not arguing that plea
offers are categorically admissible under Lockett. Rather,
his contention is a more limited one—namely, that when a
prosecutor explicitly urges the jury to impose a death
sentence on the ground that the defendant will kill again if
sentenced to life in prison, Lockett and its progeny clearly
establish that plea offer evidence must be admitted to refute
that claim. Although this argument is more precise than the
one Fauber made in state court and before the federal district
court, I agree with the majority that we must consider it on
the merits.
FAUBER V. DAVIS 51
II
Under the provision of the Antiterrorism and Effective
Death Penalty Act (AEDPA) at issue here, a federal habeas
court may grant relief only if the state court’s decision was
contrary to or involved an unreasonable application of
clearly established federal law, as determined by the
Supreme Court. 28 U.S.C. § 2254(d)(1). As noted above,
the state trial court concluded that the plea offer itself—as
opposed to Fauber’s rejection of it—was entirely irrelevant.
The California Supreme Court affirmed the exclusion of the
plea offer evidence on direct appeal, finding “no violation of
constitutional guarantees.” People v. Fauber, 2 Cal. 4th 792,
856 (1992).
A
The Eighth and Fourteenth Amendments require that a
capital defendant be permitted to introduce any relevant
mitigating evidence during the penalty phase of his trial.
This principle, first articulated by a plurality of the Supreme
Court in Lockett, was clearly established by a majority of the
Court in Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).
By the time of Fauber’s trial in 1987, the Court had also
clearly established that evidence showing that a defendant
would not pose a danger if spared the death penalty must be
admitted under Lockett. See Skipper v. South Carolina,
476 U.S. 1, 5 (1986). Here, the State’s plea offer was
evidence suggesting it had determined, at some point in the
case, that Fauber was not so likely to kill again that he must
be executed to prevent future violence.
The Supreme Court has held that the relevance of such
evidence is “underscored” when the State “specifically relies
on a prediction of future dangerousness in asking for the
death penalty.” Skipper, 476 U.S. at 5 n.1. In Skipper, the
52 FAUBER V. DAVIS
state court refused to admit evidence from which the jury
could infer that the defendant would not be violent in prison.
Id. at 3. With this ruling in hand, the prosecutor then argued
that the defendant would likely cause disciplinary problems
and rape other inmates if he were sentenced to life in prison.
Id. The Court held that the defendant’s evidence must be
deemed relevant and potentially mitigating and that its
exclusion violated Lockett. Id. at 5.
In Fauber’s case, the State’s prediction was even more
dire. During closing arguments, the prosecutor explicitly
told the jury that Fauber was “a man who, if given the
opportunity, will kill again.” Just as in Skipper, the
prosecutor argued that death was the only appropriate
penalty after successfully excluding evidence that would
have rebutted that very claim. And, as the Supreme Court
recognized in Skipper, the manifest unfairness of this tactic
confirms the relevance of the plea offer evidence.
The California Supreme Court concluded that Fauber’s
plea offer was not relevant mitigating evidence because the
offer was “susceptible of numerous inferences” and did not
unequivocally show that Fauber was not likely to be violent
in prison. 2 Cal. 4th at 857. As a factual matter, the court
was correct: The plea offer could have reflected an
assessment of Fauber’s future dangerousness, an attempt at
leniency, or the prosecutor’s reluctance to go to trial. But
the mere fact that a jury could draw different inferences from
a piece of evidence does not render it irrelevant. By the time
of Fauber’s direct appeal, the Supreme Court had clearly
established that evidence is relevant under Lockett whenever
it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” McKoy v. North Carolina, 494 U.S. 433, 440
FAUBER V. DAVIS 53
(1990) (internal quotation marks omitted). The State’s
willingness to offer a plea deal with a life sentence made it
more probable that Fauber did not pose an unacceptably high
risk of killing again in prison. And the plea offer evidence
easily meets this low bar even if the offer was motivated
primarily by other considerations.
B
The State offers three reasons why we should reject this
conclusion and dismiss Fauber’s claim. None of them are
persuasive.
First, the State notes that Fauber cannot point to a
Supreme Court decision specifically holding that plea offers
are relevant mitigating evidence under Lockett. The
majority opinion relies heavily on this argument, warning
that we are not permitted to frame the Supreme Court’s
precedents at “a high level of generality.” Maj. op. at 36
(quoting Nevada v. Jackson, 569 U.S. 505, 512 (2013) (per
curiam)). But the Supreme Court has also instructed that
AEDPA’s demand for clearly established law can be
satisfied by a general standard; the statute “does not require
state and federal courts to wait for some nearly identical
factual pattern before a legal rule must be applied.” Panetti
v. Quarterman, 551 U.S. 930, 953 (2007) (internal quotation
marks omitted). This is particularly true when the Court has
adopted a broad rule—such as requiring the admission of
any relevant mitigating evidence—and there are potentially
infinite forms that such evidence could take. Here, Fauber
argues that evidence of a prior plea offer must be admitted
when the prosecutor relies on a prediction of future
dangerousness in arguing for the death penalty. He need not
identify a Supreme Court decision addressing this narrow
factual circumstance to prevail on his claim.
54 FAUBER V. DAVIS
The majority recites a long list of mitigators that the
Supreme Court has recognized under Lockett, pointing out
that it does not include plea offer evidence. Maj. op. at 37.
But the breadth of this list merely confirms that the Lockett
rule is expansive and should not be applied rigidly in the
AEDPA context. In fact, the only specific category of
potentially mitigating evidence that the Supreme Court has
held excludable under Lockett is evidence of “residual
doubt” as to the defendant’s guilt. Oregon v. Guzek,
546 U.S. 517, 523–27 (2006); see also Franklin v. Lynaugh,
487 U.S. 164, 172–73 (1988) (plurality opinion). As the
Court pointed out in Guzek, such evidence is logically
irrelevant to the sentencing-phase inquiry because the
defendant’s commission of the offense was already
conclusively determined at the guilt phase. 546 U.S. at 526.
The same cannot be said about the plea offer evidence in this
case.
Second, the State argues that the plea offer is irrelevant
because it represents only the opinion of the District
Attorney’s office. The State notes that a prosecutor is
categorically prohibited from expressing the alternative
view, that is, his personal belief that a defendant deserves the
death penalty. Hence, the State reasons, the prosecutor’s
contrary view must be legally irrelevant.
The State’s argument relies on a faulty premise. The rule
prohibiting prosecutors from offering their personal view of
a defendant’s guilt rests on principles of fairness, not
relevance. It was created to prevent prosecutors from
invoking their authority and credibility to sway juries and
obtain unreliable convictions, as both the Supreme Court and
our court have recognized. See Berger v. United States,
295 U.S. 78, 88 (1935); United States v. McKoy, 771 F.2d
1207, 1211–12 (9th Cir. 1985). We therefore cannot infer
FAUBER V. DAVIS 55
from the prohibition against expressing personal views of
guilt that the District Attorney’s assessment of a defendant’s
potential future dangerousness is irrelevant to the jury’s
decision. To the contrary, it is entirely reasonable for a jury
to expect that, when making charging decisions concerning
the death penalty, a prosecutor will take into account the risk
that a defendant will be violent in the future.
This is not to say that a plea offer must invariably be
admitted in any capital case to show in general terms that
“the prosecution believed that a death sentence was not
warranted.” Hitchcock v. Secretary, Florida Department of
Corrections, 745 F.3d 476, 480 (11th Cir. 2014). Here, the
offer was admissible for the specific purpose of showing the
District Attorney’s implicit evaluation of Fauber’s future
dangerousness. The prosecutor’s prediction that Fauber
would kill again if spared the death penalty put the issue
squarely before the jury, and Fauber was entitled to present
any relevant evidence that could rebut this argument.
Third, and finally, the State points out that other state and
federal courts have held that plea offers are not relevant
mitigating evidence. But only one of those cases addressed
the argument presented here—that a plea offer is admissible
to rebut a prosecutor’s claim of future dangerousness. In
Wright v. Bell, 619 F.3d 586 (6th Cir. 2010), the Sixth
Circuit rejected this argument, concluding that “nothing in
the alleged plea offer constitutes relevant evidence that
Wright would not pose a danger if given a life sentence.” Id.
at 601. Instead, a plea offer “might indicate only that the
state believed its important interests in judicial efficiency
and finality of judgments were sufficient to outweigh any
potential risk associated with a life sentence, not that those
risks did not exist.” Id. Like the California Supreme Court
in Fauber’s case, the Sixth Circuit erroneously concluded
56 FAUBER V. DAVIS
that a piece of evidence is irrelevant simply because it is
susceptible to multiple inferences. As discussed above, this
reasoning is in clear conflict with the expansive definition of
relevance that the Supreme Court established in McKoy. See
494 U.S. at 440.
In the two other federal circuit court decisions to address
the admissibility of plea offers under Lockett, the defendants
argued that the offers demonstrated the prosecutor’s belief
that their crimes did not deserve the death penalty, but they
could not offer any more specific reason why the plea offers
were relevant. See Hitchcock, 745 F.3d at 480; Owens v.
Guida, 549 F.3d 399, 420 (6th Cir. 2008). Thus, we should
not be surprised that the Hitchcock court saw no mitigating
value in the mere fact that the defendant “would not have
received a death sentence if only he had accepted the plea
offer.” 745 F.3d at 482. And even in that case, one judge
cautioned against overreading the majority opinion. See id.
at 488 (Wilson, J., concurring in the judgment) (“[E]ven if
the Majority is correct about the irrelevance of plea
negotiations in this case, such negotiations may be relevant
for a host of other reasons that should be evaluated as they
arise.”). In Owens, the Sixth Circuit relied on the same
flawed reasoning that appeared in Wright, holding that the
plea offer was inadmissible because the record did not show
whether the offer reflected a judgment that the defendant did
not deserve death or, instead, merely a desire to conserve
prosecutorial resources. 549 F.3d at 420.
The issue of future dangerousness appeared in only two
of the cited state court decisions, and never in the context of
a Lockett claim. In one case, the defendant argued that the
prosecutor’s prediction of future dangerousness amounted to
misconduct. See Wisehart v. State, 693 N.E.2d 23, 60 (Ind.
1998). The other involved a challenge to the evidence
FAUBER V. DAVIS 57
supporting the aggravating circumstance that the defendant
constituted a continuing threat to society. See Ross v. State,
717 P.2d 117, 123 (Okla. Crim. App. 1986). In each case,
the court’s brief discussion of the plea offer evidence did not
address whether the offer might have been relevant to rebut
the prosecutor’s future dangerousness argument. See id.
at 122; Wisehart, 693 N.E.2d at 64.
The majority opinion contends that the exclusion of the
plea offer evidence was a permissible application of
California Evidence Code § 352. It suggests that admitting
the evidence would have required testimony from the
prosecutor, the defense attorney, and Fauber, and that these
ancillary proceedings might have confused or misled the
jury. Maj. op. 41–42.
I agree with the majority that Lockett does not prevent
States from applying rules such as California Evidence Code
§ 352 during penalty-phase proceedings, but the majority
vastly overstates the complications that might have arisen
from admitting the plea offer evidence in this case. Recall
that Fauber argued in the state trial court that both the plea
offer itself and his rejection of it were relevant. Testimony
from Fauber or his attorney would have been required only
if the jury needed to know Fauber’s reasons for rejecting the
offer. The claim at issue in this appeal depends entirely on
the prosecutor’s decision to make the offer. The only
additional evidence required would be testimony regarding
his reasons for making the offer and later seeking the death
penalty. As discussed further below, the plea offer evidence
has significant probative value, and the California Supreme
Court could not reasonably have determined that its value
was substantially outweighed by the risk of confusion from
the prosecutor’s limited testimony.
58 FAUBER V. DAVIS
III
If a petitioner establishes that the state court
unreasonably applied clearly established federal law, a
federal habeas court must determine whether the error was
harmless. When the state court has not considered the
harmlessness issue, AEDPA’s deferential standard of review
does not apply. Instead, the petitioner is entitled to relief if
he can show that the exclusion had a “substantial and
injurious effect or influence” on the jury’s verdict. Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993). Because the
California Supreme Court found no error in the exclusion of
the plea offer evidence, it did not consider whether the error
was harmless. Thus, only the Brecht standard applies to
Fauber’s claim. I would hold that the exclusion of the plea
offer had a substantial and injurious effect on the jury’s
verdict and that Fauber is therefore entitled to relief.
The prosecutor’s prediction that Fauber would kill again
likely played a critical role in the jury’s decision to impose
the death penalty. Empirical research has shown that
“[f]uture dangerousness appears to be one of the primary
determinants of capital-sentencing outcomes.” Stephen P.
Garvey, Aggravation and Mitigation in Capital Cases: What
Do Jurors Think?, 98 Colum. L. Rev. 1538, 1559–60 (1998).
The majority places substantial weight on the other killings
that the government sought to prove during the penalty
phase. Maj. op. at 45–46. But those acts of violence—to the
extent they were in fact proved—were relevant primarily
because they bore on Fauber’s future dangerousness. The
prosecutor argued that Fauber had killed three people in as
many months during the summer of 1986 and, in his closing
argument, asked the jury to infer that Fauber would do so
again. The plea offer evidence would have blunted this
future dangerousness argument by suggesting that the
FAUBER V. DAVIS 59
District Attorney’s office did not believe Fauber actually
posed so great a risk of future violence.
At a hearing outside the presence of the jury, the
prosecutor explained that, at the time he made the offer to
Fauber, the District Attorney’s office did not have enough
evidence to convict Buckley and Rowan. The prosecutor
evidently believed that the benefit of securing Fauber’s
testimony against his co-conspirators outweighed the risk
that Fauber would kill again. Presumably, the trial judge
would have permitted the prosecutor to testify or introduce
evidence of this calculus, and the jury could have decided
how much weight to give to the plea offer. The prosecutor,
at least, believed that the evidence would have damaged his
case, as he repeatedly told the judge that it was “extremely
prejudicial.” The prosecutor was particularly concerned
about appearing to be a hypocrite in front of the jury, and he
might have decided to avoid making a future dangerousness
argument altogether. Without that argument, the evidence
related to the Church murder and the Dowdy disappearance
loses much of its force. 2
The remainder of the State’s case in aggravation was far
from overwhelming. The circumstances of the Urell murder
did not make Fauber’s case an obvious candidate for the
2
Although the majority purports to give the plea offer evidence the
full mitigating value that Fauber claims, it suggests that introduction of
the plea offer evidence might have actually harmed Fauber’s case
because it would have exposed him to damaging cross-examination.
Maj. op. 42–43. In doing so, the majority conflates the two theories of
relevance that Fauber put forward before the trial court. This appeal
involves only the claim that the plea offer itself, rather than Fauber’s
rejection of it, was relevant admissible evidence. Thus, there would be
no need for Fauber to testify as to his reasons for rejecting the offer and
no risk of cross-examination.
60 FAUBER V. DAVIS
death penalty. Fauber’s actions did not risk harming anyone
other than his intended victim, and the crime, while violent,
was not especially cruel or heinous. In fact, Urell’s killing
occupied only 11 transcript pages of the prosecutor’s 64-
page closing argument during the penalty phase.
On the other side of the equation, the State and the
majority acknowledge that Fauber put on a robust case in
mitigation. Maj. op. at 47–48. His trial counsel called three
experts and over twenty character witnesses, many of whom
testified to Fauber’s good character and stated that they
would stand by him even after his conviction. The majority
contends that, because this mitigating evidence was so
persuasive, the plea offer evidence was unlikely to have
made a difference. The majority has it backwards: The
strength of Fauber’s case in mitigation supports his argument
that exclusion of the plea offer evidence was prejudicial. If
the balance between aggravating and mitigating factors was
already close in the minds of the jurors, the addition of the
plea offer evidence was more likely to tip the scales in favor
of a life sentence. 3
* * *
The California Supreme Court’s decision affirming the
exclusion of Fauber’s plea offer evidence during the penalty
phase involved an unreasonable application of clearly
established federal law, and the error was not harmless under
Brecht. Accordingly, I would reverse the district court’s
3
In fact, we have direct evidence from the jury that this case was a
close call. During penalty-phase deliberations, the jurors submitted a
note asking whether, if the jury hung, the penalty phase would be
repeated or Fauber would instead receive a sentence of life in prison. At
the very least, this evidence suggests that the jury was not immediately
unanimous in its decision to impose the death penalty.
FAUBER V. DAVIS 61
decision in part and grant Fauber’s habeas petition as to his
death sentence.