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On Remand From The United States Supreme Court. D.C. No. 2:05-CV-00319-LRS.
Habeas Corpus/Death Penalty
On remand from the United States Supreme Court, the panel affirmed in part and vacated in part the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction and capital sentence for two counts of aggravated murder in the first degree and one count of attempted murder in the first degree, and remanded for the district court to consider in the first instance whether the petitioner can show cause and prejudice under Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), excusing procedural default on certain claims of ineffective assistance of counsel.
The panel held that the state court did not unreasonably deny petitioner's claim under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), because he had not made an unequivocal request for self-representation.
The panel held that the state court did not unreasonably deny petitioner's claim that he was denied his Confrontation Clause rights when the trial court admitted into evidence the deceased victim's statements to the police because they fell within the medical diagnosis exception to the hearsay rule. The panel held that the state court unreasonably applied White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), by determining some of the victim's statements were excited utterances, but that the error was harmless because those statements were cumulative.
The panel held that the state court's decision was neither contrary to nor an unreasonable application of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and did not involve an unreasonable factual determination when the state court denied petitioner's contention that the prosecution should have disclosed the crime lab's DNA testing review process (including peer review and destruction of erroneous draft reports) because that evidence was not exculpatory.
The panel rejected as procedurally barred petitioner's claim of a Brady violation in the state's failure to disclose the full details of the spillage of one of petitioner's blood samples at the crime lab.
The panel affirmed the denial of several of petitioner's claims of ineffective assistance of counsel on the merits and/or for lack of prejudice.
The panel agreed with the parties and the district court that two of petitioner's ineffective-assistance claims regarding DNA evidence were procedurally defaulted. The panel remanded to the district court so that it may determine in the first instance whether these claims are substantial and whether post-conviction-relief counsel was ineffective for failing to raise them, thereby excusing, under Martinez, the procedural default.
The panel vacated the district court's ruling that the petitioner's claim that he received ineffective assistance when his trial counsel failed to impeach witness Venus Shaver was procedurally barred, and remanded so that the district court may consider in the first instance whether the petitioner can show cause and prejudice under Martinez.
The panel affirmed the denial of relief on the petitioner's claim of cumulative deficiency.
Concurring in part and dissenting in part, Judge Tallman wrote that because none of the petitioner's new claims would lead a reasonable juror to conclude that the petitioner did not commit the murders or the attempted murder, no court can provide the relief he seeks and the majority's remand serves only one purpose: unnecessary delay.
Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott, Seattle, Washington, and David B. Zuckerman, Law Offices of David B. Zuckerman, Seattle, Washington, for Petitioner-Appellant.
John Joseph Samson, Assistant Attorney General, Olympia, Washington, for Respondent-Appellee.
Before: Richard A. Paez, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Paez; Partial Concurrence and Partial Dissent by Judge Tallman.
PAEZ, Circuit Judge:
In 1997, a Washington jury found Dwayne A. Woods guilty of two counts of
aggravated murder in the first degree, one count of attempted murder in the first degree, and one count of attempting to elude a police vehicle. After two days of deliberation, the jury sentenced Woods to death. The Washington State Supreme Court upheld his conviction and sentence, State v. Woods, 143 Wn.2d 561, 23 P.3d 1046 (Wash. 2001), and denied his petition for post-conviction relief, In re Woods, 154 Wn.2d 400, 114 P.3d 607 (Wash. 2005). Woods then filed a petition for a writ of habeas corpus in federal district court, which was denied. Woods appeals from the denial of habeas relief, contending that (1) he was denied his Sixth Amendment right to represent himself, (2) the state court's admission of certain evidence violated the Confrontation Clause, (3) the State withheld material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (4) his trial counsel's representation was ineffective. We have jurisdiction under 28 U.S.C. § 1291.
In a previous opinion filed on August 10, 2011, we affirmed the district court's order denying Woods's habeas corpus petition. Woods v. Sinclair, 655 F.3d 886, 891 (9th Cir. 2011). On March 26, 2012, the Supreme Court granted Woods's petition for certiorari, vacated our opinion, and remanded the case for further consideration in light of Martinez v. Ryan, 566 U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). In May 2012, we ordered the parties to file supplemental briefs addressing the impact of Martinez and Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir. 2012) on this case. That same month, a petition for rehearing en banc was granted in Detrich v. Ryan, 677 F.3d 958 (9th Cir. 2012). Detrich also involved Martinez issues. The parties' supplemental briefs addressing Martinez and Sexton were filed before the en banc court in Detrich filed its opinion on September 3, 2013. 740 F.3d 1237, 1262 (9th Cir. 2013) (en banc). We ordered further supplemental briefing on the impact of Detrich. The parties' supplemental briefs were filed on September 27, 2013. With the exception of the claims affected by Martinez, we again affirm the district court's rulings on the remaining claims for all the reasons set forth in our original opinion. We vacate the district court's ruling as to the claims affected by Martinez and remand for further proceedings in light of that case.
I. THE CRIME
On Friday, April 26, 1996, Telisha Shaver was house-sitting at her aunt's trailer home in Spokane Valley, Washington. Telisha planned to spend the night at her boyfriend's home, but had agreed to let her sister, Venus, and Venus's friend, Jade Moore, spend the night at the trailer. Venus and Jade arrived at the trailer at approximately 1:45 a.m. on Saturday
morning. The women drank alcohol and socialized. At some point, Venus and Jade decided to contact Dwayne Woods, whom Venus had previously dated. After the women paged Woods, he eventually joined them at the trailer. By that time, approximately 4:20 a.m., Jade was asleep.
While at the trailer, Woods served himself alcohol and talked with Venus. According to Venus's testimony, Woods was upset that Jade was asleep and urged Venus to wake her up. Venus tried to wake Jade up, but Jade did not respond. At this, Woods became irate and, according to Venus, shoved her onto the couch and attempted to unbutton her pants. Venus said that she initially escaped Woods's grasp, but that he managed to grab her again and then slammed her head and neck against a door. Venus testified that she has no memory of what transpired from that point forward except for intermittent flashes of memory in which she recalls struggling with Woods.
At approximately 7:30 a.m., Woods forced Jade to wake up at knife point. He took her to another one of the bedrooms, where Venus lay unconscious and severely beaten. Woods forced Jade to help him loot the trailer and to give him her ATM card and personal identification number. He then raped Jade orally and vaginally.
During the attack on Jade, Telisha returned to the trailer to retrieve some personal effects. Woods seized and bound her. Jade, who was laying on the floor and feigning unconsciousness, later stated that she heard a baseball bat hit Telisha's head. Jade said that she was then hit in the head with the bat, knocked unconscious, and had no memory of what happened after that point.
When Telisha failed to return home that morning, her mother, Sherry Shaver, decided to go to the trailer to check on her. She arrived at approximately 10:25 a.m. and found the door locked. Peering through a window in the trailer, she saw a man--whom she later identified as Woods--exiting from the other side of the trailer. She pounded on the locked trailer door, and Jade, naked and beaten, eventually opened the door. Sherry Shaver called 911.
Emergency personnel arrived at the trailer and took the victims to the hospital. While en route to the hospital, Jade told a paramedic about the events of the prior evening. At the hospital, she also told her father, the emergency room physician, and a nurse about what had transpired. Of the three victims, only Venus survived. Telisha died without ever regaining consciousness. Despite initially responding to medical treatment, Jade died the following day.
Shortly after Sherry Shaver reported seeing Woods leave the trailer, he was seen at two local businesses close to the crime scene. At one of those businesses, Woods convinced another patron to drive him to downtown Spokane. Within close proximity to where Woods was dropped off, a series of cash machine withdrawals occurred with the use of Jade's ATM card.
At approximately 12:30 p.m. that same day, Woods ran into his brother-in-law, Louis Thompson, at a grocery store in the downtown area. Thompson gave Woods a ride to the home of Woods's friend, Johnny Knight. Knight and his friend, Mary Knapp, testified that when Woods came to their home, he offered to sell them some jewelry and to buy one of Knight's automobiles.
Woods spent the night at Elizabeth Gerber's apartment. The following morning, Gerber asked Woods to leave the apartment. At trial, she testified that Woods became agitated and said he was " a wanted man" and she was " putting him on the streets."
Later that day, Knight heard a television broadcast that authorities were searching for Woods. In response, Knight called the police and agreed to lead them to Woods. With Knight's cooperation, sheriff's deputies followed Knight as he went to pick up Woods. After Knight picked Woods up, the deputies pulled the car over. Knight got out, but Woods jumped into the driver's seat and sped away. The deputies eventually caught, arrested, and interrogated him.
Woods told the interviewing detectives that he fled because he had a number of " outstanding traffic violations" and some " traffic warrants." At the time of his arrest, Woods had no outstanding traffic violations. Woods denied any responsibility for the crimes and claimed he had not been in contact with Venus for about a week. He further denied knowing a woman named Jade. He also told detectives that he had not been in Spokane Valley for about a month, that he had never visited a trailer home, and that there was no logical explanation of why his fingerprints would have been found in the trailer.
II. PRE-TRIAL PROCEEDINGS
Woods was charged with two counts of aggravated first degree murder, one count of attempted first degree murder, and in the alternative, one count of first degree assault. At his arraignment on May 30, 1996, Woods pleaded not guilty to the charges and waived his right to be tried within sixty days of his arraignment, but not later than November 12, 1996. The trial was set for October 21, 1996.
In the meantime, the prosecution processed the physical evidence in the case. Doctors had completed " rape kits" for all three victims, including taking a swab from the vagina of each victim. The rape kits were sent to the Washington State Patrol Crime Laboratory (or " WSPCL" ) in Spokane. At the Spokane lab, William Morig examined the swabs in search of sperm cells that might contain the DNA of the murder suspect. Morig found no sperm on the swab taken from Venus Shaver, but found usable samples from the swabs taken from Telisha Shaver and Jade Moore. The prosecution also obtained a vial of Woods's blood to use in DNA tests. That sample was sent to the Spokane lab as well. The WSPCL in Spokane did not have the required DNA testing equipment, so Morig's responsibilities were limited to preparing DNA samples from the rape kits and Woods's blood that could be submitted to other labs for DNA testing and analysis.
On August 23, 1996, Woods's defense counsel moved for a continuance of the trial date based on the fact that they had not received the DNA test results and that they needed additional time to produce mitigation evidence. Although Woods objected to this motion, defense counsel argued that unless a continuance was granted, Woods would be unable to receive a fair trial. The trial court ultimately granted the motion and reset the trial date for March 17, 1997.
On October 16, 1996, the prosecutor informed the court that the DNA evidence had not yet been sent for testing. The prosecutor represented that the results from the testing would be received by January 1, 1997. Consequently, the court ordered that the DNA test results be disclosed to the defense by January 1, 1997. The prosecutor also informed the court that the vial of Woods's blood had been mistakenly frozen and had cracked. The prosecution therefore needed a new blood sample for testing purposes. Woods objected to providing a new sample and renewed
his objection to having the trial commence after the original date of October 21, 1996. The court overruled both objections.
By January 2, 1997, the WSPCL had returned only one of two DNA test results. That test, performed by a private company, showed that Woods was not the source of semen found in Telisha's body. At a hearing on January 13, 1997, the prosecutor informed the trial court that the testing of the sperm sample taken from Jade Moore was not complete. WSPCL performed that testing at its more advanced Seattle laboratory because it required a complex testing procedure. The prosecutor informed the court that the test would not be complete until the middle of February 1997. Defense counsel moved to exclude admission of the DNA evidence as a result of the delay, to dismiss the case because of prosecutorial mismanagement, and to continue the case in order to have time to adequately prepare for trial in light of the delay in DNA testing. The trial court denied the first two motions but granted the last and continued the trial to May 19, 1997. Before trial, WSPCL returned the results of the DNA testing performed in Seattle, which showed that the DNA taken from Woods's second blood sample matched the DNA taken from the sperm recovered from Jade Moore.
III. GUILT PHASE PROCEEDINGS
At trial, Venus and Sherry Shaver identified Woods as the assailant. The jury also heard Jade's statements, including her identification of Woods, via the testimony of a paramedic, nurse, and doctor who treated Jade and the testimony of her father, Barry Moore, who spoke to Jade after the attack. Dr. John Brown, a forensic scientist at WSPCL's Seattle laboratory, testified that the sperm recovered from Jade contained Woods's DNA. A fingerprint expert testified that Woods's fingerprints were on a bottle and a telephone found in the trailer. The jury also learned that Woods's coat and shirt were found at the trailer and saw paging and telephone records demonstrating that Woods's pager had been called from the trailer several times during the early hours of April 27, 1996.
The defense theory was that Woods could not have murdered Telisha and Jade or assaulted Venus because he was dining at a bar in downtown Spokane at the time the crimes occurred. To support this alibi defense, the defense presented testimony from an expert on eyewitness misidentification and from a bartender who testified that he saw Woods at a downtown bar on the evening in question.
The jury found Woods guilty of two counts of aggravated murder, one count of attempted murder, and one count of attempting to elude police officers.
IV. PENALTY PHASE PROCEEDINGS
Woods instructed his attorneys not to present any mitigating evidence at the penalty phase of the trial. Concerned about Woods's mental state, defense counsel requested a continuance of the penalty phase in order to have Woods's mental capacity assessed. The trial court denied the motion and ordered the trial to commence that afternoon. The prosecution offered the testimony of Sherry Shaver and Barry Moore, presented photographs of Telisha and Jade, and entered into evidence certified judgments of Woods's prior convictions.
Pursuant to Woods's instructions, defense counsel did not present any mitigating evidence. Woods did, however, invoke his right to allocution and made the following statement to the jury:
Well, ladies and gentlemen, you heard from [the prosecutor] and so you know that he's asking that you impose the death penalty. I just want to say that I have no objection. Also, I just want to remind you that a few weeks back during individual voir dire each of you was asked if you could, in fact, impose the death penalty. I believe at that time each of you said you could impose the death penalty providing there's not sufficient mitigating circumstances.
So I am here to tell you there's absolutely none, not one. So I ask that each of you go back and return a vote to ...