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Hernandez v. Chappell

United States Court of Appeals, Ninth Circuit

January 14, 2019

Francis G. Hernandez, Petitioner-Appellant,
v.
Kevin Chappell, Warden, California State Prison at San Quentin, Respondent-Appellee.

          Argued and Submitted September 24, 2018 Pasadena, California

          Appeal from the United States District Court D.C. No. 2:90-cv-04638-RSWL for the Central District of California Ronald S.W. Lew, Senior District Judge, Presiding

          Tracy Casadio (argued) and Margo A. Rocconi, Deputy Federal Public Defenders; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

          Gary A. Lieberman (argued) and Xiomara Costello, Deputy Attorneys General; Jason Tran, Supervising Deputy Attorney 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.

          Kent S. Scheidegger and Kymberlee C. Stapleton, Criminal Justice Legal Foundation, Sacramento, California, for Amicus Curiae Criminal Justice Legal Foundation.

          Before: Kim McLane Wardlaw, Milan D. Smith, Jr., and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus

         The panel filed an order withdrawing the prior opinion in this case, and filed a new opinion, which affirmed the district court's denial of a writ of habeas corpus as to Francis Hernandez's guilt-phase claims relating to his California state convictions for first-degree murder.

         The panel addressed two claims of ineffective assistance of counsel. The panel held that trial counsel was constitutionally deficient by failing to present a diminished capacity defense based on mental illness, but that Hernandez did not suffer any prejudice because the evidence of his specific intent to rape and kill both victims was overwhelming when compared to the relatively weak diminished capacity evidence that counsel could have presented, but failed to present. The panel held that trial counsel was not ineffective for failing to subpoena Laura Kostiuk as a witness.

         ORDER

         The prior opinion in this case, found at Hernandez v. Chappell, 878 F.3d 843 (9th Cir. 2017), is hereby withdrawn. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.

          OPINION

          NGUYEN, CIRCUIT JUDGE.

         In the winter of 1981, Francis Hernandez brutally raped, sodomized, and strangled to death two women, Edna Bristol and Kathy Ryan. Hernandez committed the crimes five days apart and in a strikingly similar manner, including strangling the victims, mutilating their bodies, and leaving them near schools in Long Beach, California. After his arrest, Hernandez confessed, walking the police through every detail of his crimes and his thoughts and motivations as he committed them. In April 1983, a jury convicted Hernandez of two counts each of first-degree murder, forcible rape, and forcible sodomy, and sentenced him to death. The California Supreme Court denied his state habeas petitions.

         Hernandez filed a federal habeas petition alleging, among other claims, ineffective assistance of trial counsel. After extensive litigation, including a six-year evidentiary hearing, the district court granted relief in part, vacating the death sentence. The district court denied guilt-phase relief.

         Hernandez now appeals the district court's denial of relief as to the guilt-phase claims relating to his first-degree murder convictions.[1] We find that trial counsel's performance was deficient in one respect-he should have investigated and considered presenting a diminished capacity defense based on Hernandez's mental condition. We hold, however, that Hernandez did not suffer any prejudice as a result of counsel's deficient performance. Because the evidence of his specific intent to rape and kill both victims was overwhelming when compared to the relatively weak diminished capacity evidence that counsel could have presented, but failed to present, there was no reasonable probability of a different outcome in this case. We therefore affirm.

         I. BACKGROUND

         A. The Murders of Bristol and Ryan

         In January 1981, Edna Bristol's nude body was found near a middle school in Long Beach, California. Five days later, Kathy Ryan's nude body was found near a high school in the same city. According to a pathologist, Bristol and Ryan both died of asphyxiation due to strangulation or suffocation, and their bodies suffered "extremely similar and extremely rare" trauma to the anal and vaginal areas, suggesting a large object-consistent with a baseball bat- had been inserted. Their bodies were mutilated, with bite marks on their breasts, and their pubic hair was singed. Bristol had ligature marks around her wrists and ankles. Ryan's nose was fractured, and a tic-tac-toe pattern had been carved into her abdomen post-mortem.

         On February 4, 1981, Hernandez was arrested for the crimes.

         B. Hernandez's Detailed Confession

         Hernandez gave a detailed, taped confession. He chillingly recounted not only his horrific acts, but also the thoughts and feelings that went through his mind as he committed the crimes. Hernandez explained that on the night of Bristol's death, he "was in a weird mood" and decided to "find . . . a homosexual to beat up on." He found a male victim, beat him up, and robbed him "for his last ten dollars." When he was done, Hernandez was still feeling "frustrated." It was then that he picked up Bristol hitchhiking.

         He became angry when Bristol started telling him "about all her problems" and ordered her out of his van. When she refused, he began to hit her and physically drag her out. Bristol then pleaded that "she'd do anything," and after he "thought about that for a minute," he decided to drive to another location. Once parked, he ordered Bristol to "get in the back" of the van, where there was no exit, and "to take off her clothes." Hernandez explained that he had intended to "let her out" or "let her go" after they "had sexual intercourse," but he went "bezerk" because she was kicking and screaming and damaging his van. He taped her ankles, wrists, and mouth "around the hair," and then, as he described it, "I proceeded to fuck her in her ass." He pushed her body against the hot engine cowling of his van to burn her nipple because he was "mad at her." He then pushed "some piece of material" "over [Bristol's] face" while holding her by the throat until she stopped moving. He threw her body out of the van onto the lawn of a middle school in Long Beach, California. Thinking Bristol was still alive, Hernandez flicked matches onto her pubic area and another match "on her nipple" to "hurt her" for kicking him "in the nuts" and kicking a hole in his van.

         Hernandez's confession also walked the police through the night of Ryan's death. He had gone to play pool with friends, including Ryan.[2] After the group disbanded, he went over to Ryan's house and invited her into his van. When he tried to kiss her, "she sort of resisted." She also refused his order to take off her clothes but then said, "oh, okay," when he got angry and "pushed her arms back." At one point, he "thought she wanted it in her ass," and sodomized her. Like Bristol, Ryan was screaming and kicking and, in response, he "grabbed her, [held] onto her, and . . . then she gargled-she . . . sputtered up." He thought that he "was choking her too hard" and "let go." Hernandez told her "to mellow out" but when she started screaming again, he grabbed her throat with one hand and covered her mouth with the other hand. Because "she started struggling really bad," he realized he "must have used too much pressure, but then she stopped struggling." He burned Ryan's pubic hair with a lighter, and decided to cut her stomach and nipple "to make the two bodies look different from one another so that the police could not link the cases together." Hernandez took Ryan's body to the high school "[b]ecause it was his understanding . . . that police sometimes think criminals return to the scene of the crime, and they might have been there waiting for him, had he . . . gone back to the first location" where he left Bristol's body.

         C. Trial and Subsequent History

         At trial, Hernandez's counsel attempted to present a diminished capacity defense based solely on voluntary intoxication. Trial counsel argued that Hernandez's heavy drinking prevented him from forming the specific intent necessary for first-degree murder. Counsel tried to persuade the jury that Hernandez's intoxication caused Hernandez to believe that the encounters with Bristol and Ryan were consensual, and that he did not intend to kill them.

         The jury was unconvinced and convicted Hernandez of two counts of first-degree murder, two counts of forcible rape, and two counts of forcible sodomy, and found true special circumstances: that each murder occurred during the commission of rape and sodomy, and that he committed more than one murder. People v. Hernandez, 47 Cal.3d 315, 327 (1988). The jury returned a death sentence as to each murder. ...


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