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Livaditis v. Davis

United States Court of Appeals, Ninth Circuit

August 9, 2019

Steven Livaditis, Petitioner-Appellant,
Ron Davis, Warden, Respondent-Appellee.

          Argued and Submitted May 9, 2019 San Francisco, California.

          Appeal 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

          Gary D. Sowards (argued), McBreen & Senior, Los Angeles, California; Jan B. Norman, Altadena, California; for Petitioner-Appellant.

          Seth 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 Respondent-Appellee.

          Before: Ronald M. Gould, Richard R. Clifton, and Carlos T. Bea, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus / Death Penalty

         The panel affirmed the district court's denial of Steven Livaditis's habeas corpus petition challenging his capital sentence.

         Applying 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.

         The 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.

         The 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.



         California 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 therefore affirm.

         I. Background

         On June 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.

         The 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.

         Livaditis 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."

         Smith 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.

         Heilperin 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 misfired.

         Livaditis 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.

         At 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.

         At that 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.

         Livaditis 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.

         A. The Penalty Phase

         During 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 resisted arrest.

         In 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's behalf.

         Sophie 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.

         Sophie 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' family."

         On 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.

         Two of 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.

         Voula 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."

         Theofanis 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 ...

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