and Submitted May 9, 2019 San Francisco, California.
from the United States District Court for the Central
District of California D.C. No. 2:96-cv-02833-SVW Stephen V.
Wilson, District Judge, Presiding
D. Sowards (argued), McBreen & Senior, Los Angeles,
California; Jan B. Norman, Altadena, California; for
P. McCutcheon (argued), Deputy Attorney General; Victoria B.
Wilson and James William Bilderback II, Supervising Deputy
Attorneys General; Lance E. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant Attorney
General; Xavier Becerra, Attorney General; Office of the
Attorney General, Los Angeles, California; for
Before: Ronald M. Gould, Richard R. Clifton, and Carlos T.
Bea, Circuit Judges.
Corpus / Death Penalty
panel affirmed the district court's denial of Steven
Livaditis's habeas corpus petition challenging his
Cullen v. Pinholster, 563 U.S. 170 (2011), the panel
considered only the record before the California Supreme
Court (including the trial court record), and did not
consider the evidence presented in the federal court
evidentiary hearing. Because the California Supreme Court
summarily denied Livaditis's state habeas petition, the
panel considered whether there is any reasonable argument
that could have supported that decision under the deferential
AEDPA standard that applies in this context.
panel held that the California Supreme Court did not
unreasonably apply federal law or unreasonably determine
facts in denying Livaditis's ineffective assistance of
counsel claim based on counsel's failure to investigate
and present in mitigation evidence of the mental impairments
and abusive conduct of Livaditis's mother. The panel
rejected Livaditis's argument that his counsel's
performance was constitutionally deficient for failing to
discover and present this evidence, and concluded that the
state court could reasonably have concluded that Livaditis
was not prejudiced by counsel's failure to do so.
panel held that the California Supreme Court could have
reasonably determined that Livaditis was not prejudiced by
counsel's failure to investigate and present in
mitigation evidence that Livaditis suffered from mental
impairments prior to and through the time of his crimes. As
it was unnecessary, the panel did not address counsel's
performance with regard to this evidence.
CLIFTON, CIRCUIT JUDGE.
state prisoner Steven Livaditis appeals the district
court's denial of his habeas corpus petition challenging
his capital sentence. Livaditis pled guilty to three counts
of first degree murder, five counts of robbery, three counts
of kidnapping, and one count of second degree burglary in
connection with his armed robbery of a jewelry store in
Beverly Hills, California. The California Supreme Court,
which had previously affirmed his convictions and sentence,
denied his habeas petition. The federal district court
likewise denied his federal petition under 28 U.S.C. §
2254. On appeal from that denial, Livaditis argues that the
district court erred in denying two of his ineffective
assistance of counsel claims. In particular, he argues that
his trial counsel was ineffective for failing to investigate
and present two types of mitigation evidence: 1) evidence
that Livaditis's mother was mentally ill and abusive
during Livaditis's youth, and 2) evidence that Livaditis
suffered from mental impairments prior to and through the
time of his crimes. Under the deferential standard of review
that applies, we hold that the California Supreme Court could
have reasonably concluded that both claims lacked merit. We
23, 1986, twenty-two-year-old Steven Livaditis robbed the Van
Cleef & Arpels jewelry store in Beverly Hills. Shortly
after the store opened, Livaditis entered carrying a
briefcase. A security guard (William Smith) and three sales
clerks (Ann Heilperin, Hugh Skinner, and Carol Lambert) were
in the main sales area at the time. Livaditis and Heilperin
entered the adjoining boutique after Livaditis asked to look
at some watches. A few minutes later, Heilperin screamed.
Livaditis, displaying a revolver, forced Heilperin back into
the main sales area. Although Smith attempted to draw his
weapon, Livaditis disarmed him. A shipping clerk (Robert
Taylor) ran into the sales room and was also taken hostage.
Everyone else in the building escaped.
police quickly surrounded the store. Livaditis forced the
five hostages into the watch boutique and ordered Taylor and
Lambert to bind the other hostages' ankles and hands. He
also ordered them to fill the briefcase with watches.
then attempted to leave the store but returned when he saw
the police. He ordered Lambert to bind Taylor in a sitting
position and then dial 911. On the phone, Livaditis demanded
that he be put on the news and provided with a television set
and that the police leave. He threatened to "execute
these people one at a time."
was the first hostage to be killed. Livaditis stabbed Smith
in the back with a hunting knife after Smith said that
Livaditis thought he was a "big man with that gun."
Smith bled to death in front of the other hostages. Livaditis
then covered Smith's body, which was still bound and face
down on the ground, with a coat. He left the knife in
Smith's back. Livaditis subsequently told a reporter that
he stabbed Smith because Smith did not follow orders and
"kept talking." Livaditis said that he felt no
remorse for the stabbing.
was next. Livaditis appeared angry at Heilperin because she
screamed at the beginning of the robbery. He then ordered her
to lie down next to Smith's body. While on the phone with
a local media outlet, Livaditis told the reporter to wait and
then walked over to Heilperin and shot her. She died
instantly. Livaditis told the reporter that his gun had
held the remaining hostages in the store for approximately
thirteen hours. Skinner eventually proposed an escape plan.
Skinner suggested that the three hostages and Livaditis exit
the store under a blanket so that the police would not be
able to tell which person was the gunman. They would be tied
together at the waist, with Livaditis in the middle. They
would then walk to a nearby car and escape. After Livaditis
agreed to this plan, Lambert spent a few hours sewing a
blanket from cloth used for jewelry displays. While she was
sewing, Livaditis put more jewelry into his briefcase. Once
Lambert finished, Livaditis and the hostages practiced
walking under the blanket for a couple of hours.
approximately 11:30 pm, Livaditis and the hostages exited the
store under the blanket. As they walked, Skinner and Taylor
yelled that they were hostages. Livaditis threatened to kill
the hostages if the police intervened. When the police threw
"flash-bangs" (explosive diversion devices) as the
group reached the car, the blast separated Skinner from
Livaditis and the other hostages. Skinner pointed to
Livaditis and yelled, "Here he is." Unfortunately,
a police sharpshooter stationed on a nearby parking structure
mistakenly believed that both male hostages were black and
that only Livaditis was white. In fact, Skinner was also
white. When the sharpshooter saw Skinner, a white man who
resembled the general description the police had received of
the gunman, he believed that Skinner was the perpetrator. The
sharpshooter heard his spotter say "shiny object"
and heard someone else say "gun." He then shot and
killed Skinner, believing that Skinner was the gunman and was
about to start killing one or more of the remaining hostages.
point, the officers arrested Livaditis. Livaditis told the
police that he killed Smith because Smith had been
"uncooperative and antagonistic" and "to keep
control of the situation." He said that he killed
Heilperin because "he felt that he had to kill another
hostage in order to prove that his demands should be taken
seriously." He said that he was sorry and that his plan
had only been to rob the store.
pled guilty to the first degree murders of Smith, Heilperin,
and Skinner; five counts of robbery; three counts of
kidnapping; and one count of second degree burglary. He
admitted several special circumstance allegations, including
murder during the commission of robbery and burglary,
multiple murder, and weapons enhancements. After jury
selection, the case proceeded to the penalty phase.
The Penalty Phase
the penalty phase, in addition to evidence about the
circumstances of the Van Cleef & Arpels robbery and
murders, the state presented evidence of prior crimes and bad
acts by Livaditis. That included evidence that he robbed a
jewelry store in Las Vegas at gunpoint in February 1986, four
months before the Beverly Hills crimes. During the Las Vegas
robbery, Livaditis forced two store employees to lie bound on
the floor, threatened to kill them, and kicked one of them
repeatedly. He escaped with jewelry worth over $400, 000
retail, or $177, 555 wholesale. Livaditis also had one prior
felony conviction for burglary and one for possession of
stolen property. In addition, the state's evidence
described three prior instances in which Livaditis forcibly
arguing for a sentence less than death, the defense focused
on several mitigation themes, including family sympathy,
pleas for mercy, and Livaditis's acceptance of
responsibility for his crimes. Seven witnesses testified on
Livaditis, Livaditis's mother, explained the
circumstances of her arrival to the United States and
described her tumultuous marriage to Louis Livaditis,
Livaditis's father. She testified that Louis abused her
in front of their children and abused their children as well.
She explained that due to her recurring illnesses, she had to
send Livaditis to St. Basil's Academy, a Greek Orthodox
orphanage in upstate New York, for two years during his
childhood. According to Sophie, Livaditis was "never
happy there" because he was homesick. She also described
the severe appendicitis Livaditis suffered as a child and a
head injury that he received at St. Basil's. She said
that she "had no problems" with her children and
was "very close" with Livaditis.
believed that Livaditis's problems began during his time
in the U.S. Army and became worse after he left the service
and moved to Las Vegas. She said that the move was "his
disaster" because "he enrolled himself with the bad
people." She said that she was shocked when she found
out about his crimes because the family "never had
problems" and Livaditis had "good plans for the
future." She said that her son "knows that he did a
very bad thing" and that she "was hurt, very
ashamed" and was "grieving with the victims'
cross-examination, Sophie testified that her ex-husband hit
and spanked each of her children and repeatedly stated that
all of her children had the same upbringing and the same
advantages and disadvantages. She reaffirmed that she never
had trouble with her children.
Livaditis's aunts and one of his uncles also testified on
his behalf. Their statements were generally similar to
Sophie's testimony. One aunt, Pauline Poulakos, testified
that Louis Livaditis was "like a monster in the
house" and that the children were afraid of him. She
said that Louis hit Sophie, including while she was pregnant.
She described Livaditis's unhappiness at St. Basil's
and his desire to return home. She said that Livaditis was a
"normal boy" who tried to help his mother and that
he was "very, very sorry" for what he did. She also
rooted his problems in his move to Las Vegas.
Boulari, the other aunt, testified about Livaditis's
"delicate character" as a child. She said that she
would not imagine that he would commit such a crime and that
she was "ashamed of what he did." She said that he
"has completely regretted what he did" and that he
told her that he "went there just to steal and not cause
any other trouble and then he was afraid."
Thantzalos, Livaditis's uncle, testified about
Livaditis's time at St. Basil's. He also said that
Livaditis "acted natural" when he lived with them
in Greece as a teenager. Like Sophie, Theofanis indicated
that Livaditis's problems dated back to his time in the
army. He recalled that when Livaditis ...