KURT MICHAELS V. RON DAVIS ( 2022 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KURT MICHAELS, No. 15-99005
Petitioner-Appellant, D.C. No.
3:04-cv-00122-JAH-JLB
v.
RON DAVIS, Acting Warden of San OPINION
Quentin State Prison; ATTORNEY
GENERAL FOR THE STATE OF
CALIFORNIA,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted October 25, 2018
San Francisco, California
Before: Ronald M. Gould, Marsha S. Berzon, and Carlos T. Bea, Circuit Judges.
Per Curiam Opinion;
Partial Majority Opinion by Judge Bea
Dissent by Judge Berzon
SUMMARY *
Habeas Corpus/Death Penalty
In a per curiam opinion addressing all issues except penalty phase prejudice, and
a separate majority opinion addressing penalty phase prejudice, the panel affirmed
the district court’s judgment denying Kurt Michaels’s habeas corpus petition
challenging his California conviction and death sentence for the 1988 murder of
JoAnn Clemons.
Per Curiam Opinion
Michaels argued that application of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), is unconstitutionally
retroactive—i.e., that the relevant event to which AEDPA’s legal consequences
attached is the automatic appeal of his capital sentence in state court, which occurred
before AEDPA’s effective date. Rejecting this argument, the panel wrote that
AEDPA attached new legal consequences to petitions for federal habeas relief, not
to Michaels’s state court litigation—litigation that was resolved on state law grounds
and substantive rules of constitutional law, both unaffected by AEDPA.
Michaels’s Claim Three challenged, under Miranda v. Arizona, 384 U.S. 436(1966), the admission of his confession at both the guilt and penalty phases of trial,
on the ground that the confession was elicited after Michaels invoked his rights to
counsel and silence. The panel wrote that the California Supreme Court’s
conclusion on direct appeal that Michaels did not unambiguously invoke either his
right to counsel or his right to silence with respect to all questioning is fully
supported by the record. The California Supreme Court did recognize that Michaels
selectively invoked his right not to answer a specific question as protected by
Miranda, but the California Supreme Court neither determined precisely what
question Michaels had declared off limits nor whether the ensuing interrogation
impermissibly violated Michaels’s invocation of his right to silence with regard to
the subject covered by that question. The panel held that the California Supreme
Court’s decision to ignore a defendant's unambiguous and unequivocal selective
*
This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.
invocation of his right to silence as to an area of inquiry during a custodial
interrogation, requiring instead that the refusal be repeated in response to each
question regarding the subject matter as to which the right was earlier invoked, was
contrary to the law clearly established by Miranda and its progeny. The panel
therefore reviewed de novo the aspects of Michaels’s selective invocation of
Miranda claim, and held that the detectives’ continued questioning regarding
Michaels’s role in the murder after Michaels’s selective invocation violated his
Miranda rights, and that admission of the parts of the interrogation in which
Michaels confessed to “what happened” was constitutional error. The panel held
that the Miranda violation was harmless as to the guilt phase because the evidence
presented at trial showing that Michaels committed capital murder was
overwhelming even without the confession.
In Claim Four, Michaels argued that his trial lawyers provided ineffective
assistance of counsel (IAC) by disclosing to the prosecution a confidential note
Michaels had handed to his lawyers, during the preliminary hearing, stating that he
would commit violence against his then-codefendant Popik if Popik was not reseated
away from Michaels (“the Popik note”). The California Supreme Court held that
introduction of the Popik note violated the attorney-client privilege but was
harmless. The panel wrote that this IAC claim—which Michaels did not raise on
initial state habeas review, as required by California law—was procedurally
defaulted. The panel therefore addressed whether the procedural default is excused
under Martinez v. Ryan, 566 U.S. 1 (2012), and held that it is. In so holding, the
panel wrote: (1) the IAC claim is “substantial” under Martinez because (a) the claim
clearly has some merit, and (b) Michaels demonstrated a substantial claim of
prejudice resulting from his trial counsel’s deficient performance; and (2) Michaels
established “cause” under Martinez because (a) Michaels’s initial post-conviction
relief (PCR) attorneys’ failure to raise the IAC claim was unconstitutionally
deficient performance, and (b) there is a reasonable probability the PCR court would
have granted Michaels relief had his PCR counsel raised the trial counsel IAC claim.
Because the procedural default of Claim Four is excused, the panel addressed the
merits of Michaels’s claim that his counsel was constitutionally deficient, as well
as—on the merits (in the separate majority opinion)—the cumulative effect of
counsel’s constitutionally deficient performance and Michaels’s improperly
admitted confession on the sentencing phase of Michaels’s trial. Applying AEDPA
review, the panel held that there was no reasonable basis for the state court to have
concluded that Michaels’s trial counsel’s performance was constitutionally adequate
as to the disclosure of the Popik note. The panel wrote that under clearly established
law and prevailing standards of representation at the time, counsel’s breach of
attorney-client confidentiality amounted to constitutionally deficient performance,
and it was objectively unreasonable for the California Supreme Court to conclude
otherwise, assuming that it did.
In Claim Six, Michaels contended that the trial court violated Michaels’s Sixth
Amendment right to counsel by denying his motion to substitute another attorney
for appointed attorney Richard Grossberg after an irreconcilable conflict with
Michaels developed. The panel held that the California Supreme Court reasonably
concluded that the conflict was the result of Michaels’s subjective distrust, and that
Michaels’s actions triggered the breakdown of the relationship. The panel held that
the state court’s other conclusion—that Grossberg rendered constitutionally
adequate assistance as it relates to the attorney-client conflict claim—was also
reasonable.
In Claim Seven, Michaels argued that his other attorney, Mark Chambers,
provided ineffective assistance when he advised Michaels to proceed pro se after the
trial court refused to relieve Grossberg. As it turned out, during both the guilt and
penalty phases, Chambers conducted the trial proceedings. Given that circumstance,
the panel agreed with the district court that, whether or not Chambers provided
constitutionally inadequate advice, Michaels did not show that he was prejudiced.
In Claim Nine, Michaels contended that the trial court erred in not conducting a
sua sponte competency hearing, and his attorneys were constitutionally ineffective
for failing to raise the competency issue. The panel held that neither the California
Supreme Court’s conclusion that the evidence before the trial court was insufficient
to require a sua sponte competency hearing, nor its rejection of Michaels’s IAC
competency claim, was unreasonable under AEDPA.
In Claim Thirteen, Michaels argued that the trial court’s denial of his request for
a continuance before trial on March 26, 1990, violated his due process rights. Given
that the standard for determining whether a continuance violates due process affords
the substantial discretion to a trial court, as well as the deference owed under
AEDPA, the panel held that the circumstances here do not render the California
Supreme Court’s decision that denial of the continuance was not a due process
violation unreasonable.
Majority Opinion
Michaels argued that he is entitled to habeas relief because the introduction of his
confession and the Popik note during the penalty phase of the trial prejudiced him
by causing the jury to render a death verdict they otherwise would not have in the
absence of this unconstitutional evidence. Applying the actual prejudice standard
set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), the panel held that Michaels
was not prejudiced by the admission of the confession. The panel explained that
there is not a single aggravating factor that the jury could have gleaned from
Michaels's confession evidence that was not otherwise proved by ample admissible
evidence, nor any piece of mitigation evidence that was rebutted by the confession
that would otherwise have gone unrebutted; indeed, the confession evidence helped
support the defense's own theory that Michaels killed Clemons to protect her
daughter, Christina. Given the limited use of the Popik note and its minimal
evidentiary value at trial, the panel could not conclude that it had a prejudicial effect
on the jury, even in combination with the confession evidence. The panel therefore
rejected Michaels’s claim of cumulative error as to the admission of his confession
and the Popik note.
In Claim Five, Michaels contended that the prosecutor committed four species of
misconduct during the penalty-phase closing arguments. Affirming the denial of
relief on this claim, the panel held: (1) the prosecutor did not commit misconduct by
arguing Michaels’s interest in devil-worship to the jury based on his own tackle box
writings and for the proper purpose of rebutting the mitigating evidence of his church
membership; (2) there is no clearly established federal law that prohibits the
rhetorical admission of the defendant’s own views of the suitability of the death
penalty during the sentencing phase of the trial; (3) isolated comments describing
Michaels as a “contract killer” did not cross into the proscribed territory of arguing
that Michaels had committed other murders, and do not constitute the sort of
egregious misconduct that amount to a denial of constitutional due process; and
(4) given the context of the entire trial and the deferential standard review required
under AEDPA, the trial was not rendered fundamentally unfair by the prosecutor’s
use of name-calling and emotional appeals.
In Claim Ten, Michaels argued that he is entitled to effective assistance of
advisory counsel. In Claim Eleven, Michaels argued that Chambers was ineffective
at both the guilt and penalty phases because Chambers failed to call as a witness
Christina's father, Wendell, who would have corroborated Christina's testimony
about how her mother physically abused her. In Claim Twelve, Michaels argued
that Chambers was ineffective at the penalty phase because Chambers failed
adequately to investigate and present evidence (1) that Michaels's mother was
bipolar; (2) that Michaels's mother physically and emotionally abused him
throughout his childhood; and (3) that Michaels's methamphetamine use was
affected by his long-term brain damage, difficult background, and mental illness. As
to Claim Eleven, the panel held that the fact that Chambers admitted that he did not
consider calling Wendell as a witness does not render the omission per se deficient;
and that given the limited probative value of Wendell’s testimony, the California
Supreme Court could have reasonably concluded that the failure to produce such
testimony was not outside the wide range of professionally competent assistance. As
to Claim Twelve, the panel held that the California Supreme Court could have
reasonably found that Chambers was not deficient in failing to inquire further into
Michaels’s mother’s mental health, that it would not be unreasonable to conclude
that Chambers’s decision not to investigate further into her abusive conduct was
reasonable, and that counsel’s decisions concerning drug use and brain damage were
not unreasonable or deficient. Because Chambers did not render ineffective
assistance, the panel did not need to decide the threshold question (in Claim Ten)
whether Michaels had a right to effective assistance of nominally advisory counsel
where, as here, counsel actually conducted the entire trial, including the penalty
phase, and made all pertinent decisions.
Judge Berzon concurred in the per curiam opinion, but dissented from the
majority opinion with respect to the holding that the admission of Michaels’s
confession and the Popik note did not cumulatively prejudice the penalty phase of
the trial. She would hold the introduction of Michaels’s complete improperly
Mirandized confession and of the Popik note cumulatively prejudiced Michael at the
penalty phase of his trial, and would therefore grant the petition as to the penalty
phase. She harbors grave doubt that the harmless error standard is met here, and
could not conclude that there is no reasonable probability that a single juror might
have spared Michaels had the confession and the note been excluded at the penalty
phase.
COUNSEL
Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California;
Michael R. Belter, Law Office of Michael R. Belter, Monterey, California; for
Petitioner-Appellant.
Michael T. Murphy (argued), Deputy Attorney General; Holly D. Wilkens,
Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney
General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris,
Attorney General; Attorney General’s Office, California Department of Justice, San
Diego, California; for Respondents-Appellees.
PER CURIAM:
Kurt Michaels was convicted and sentenced to death in California for the
1988 murder of JoAnn Clemons. On appeal from the district court’s denial of his
federal habeas petition, Michaels raised sixteen claims, two of which are
uncertified. Reviewing his appeal under the deferential standards established in the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), see 28 U.S.C.
§ 2254(d), we affirm the district court with respect to all claims. This per curiam
opinion addresses all issues except the penalty phase prejudice. The accompanying
separate opinion and dissent address penalty phase prejudice.
I. Background
A. Murder of JoAnn Clemons
In the fall of 1988, twenty-two-year-old Kurt Michaels lived in an apartment
in Oceanside, California, with four roommates. At the time, Michaels was dating
sixteen-year-old Christina Clemons, then confined at Broad Horizons, an
adolescent rehabilitation facility. Christina’s mother JoAnn Clemons lived nearby,
in Escondido.1 Christina testified at trial that she had been physically and sexually
abused by her mother from an early age. As recently as that September, Christina
We refer to the victim JoAnn Clemons as “Clemons” and to Christina
1
Clemons by her first name.
1
said, her mother struck her with a cast iron pan and forced her to engage in digital
penetration and oral sex.
While on release from Broad Horizons for the weekend to stay with her
mother in early September, Christina obtained a key to her mother’s apartment. On
September 29, Christina was again released from Broad Horizons for the weekend.
This time, she went to visit Michaels in Oceanside. While there, Christina decided
that she “wasn’t going to go through it anymore,” and told Michaels that she
wanted her mother killed. Christina warned Michaels that she would commit
suicide if Clemons were not killed. Velinda Davis, one of Michaels’s roommates,
overheard Michaels tell Christina, “Now we can knock off the old lady.”
According to Davis, Christina replied, “And then we can get the money.” Christina
gave Michaels her key to Clemons’s apartment.
The next evening, Michaels asked Mark Hebert, another roommate, if he
wanted to go to Escondido to do a “tax.” According to Hebert, doing a “tax”
referred to collecting a debt, usually through the use of force or the threat of force.
Michaels promised Hebert some of the proceeds of the “tax,” and Hebert agreed to
participate. Michaels also recruited roommate Darren Popik to come along.
Michaels told Popik that Clemons had $100,000 in life insurance coverage, which
would go to Christina, and that these insurance proceeds would help Michaels and
Christina start a new life. Michaels promised Popik $2,000 to $5,000 from the
2
proceeds of Clemons’s life insurance policy, as well as whatever was found in
Clemons’s apartment. Hebert and Popik arranged for an acquaintance, Joseph
Paulk, to drive the getaway car after the “tax.”
On the night of October 1, 2 Michaels and Popik left the Oceanside
apartment, telling Davis that they were going to “tax” someone. At the last minute,
Hebert decided not to participate. After Michaels and Popik left, Davis noticed that
one of her kitchen knives was missing.
Dennis Crone, Michaels’s former neighbor, testified that Michaels and Popik
visited him at around 7:30 p.m. Michael Crawford, Dennis Crone’s brother-in-law,
spent time with Michaels and Popik at Crone’s home and later gave them a ride to
an intersection about a mile and a half away from Clemons’s apartment building.
Michaels and Popik stayed outside Clemons’s apartment complex for two or three
hours, waiting for Clemons to go to sleep. Michaels then used the key Christina
had given him to enter the apartment; Popik accompanied him. When Michaels
entered Clemons’s bedroom, he tripped, waking Clemons. Popik initially tried to
flee, but Michaels prevented him from leaving. Popik then began striking Clemons
repeatedly in the face, and Michaels stabbed Clemons in the back with a knife,
2
Both the California Supreme Court and Michaels’s opening brief
misidentified the date of the murder as October 3, 1988. See People v. Michaels,
28 Cal. 4th 486, 500 (2002). Clemons was in fact murdered in the early hours of
October 2.
3
breaking it. Popik went into the kitchen and brought back another knife. Michaels
used that knife to cut Clemons’s throat.
Shortly after midnight, Clemons’s neighbors heard sounds of a struggle
coming from her apartment and called the police. When officers arrived, a
neighbor told them that she had earlier seen two men walking toward Clemons’s
apartment. The officers knocked on the door of Clemons’s apartment while
Michaels and Popik were still inside, but the two escaped via a balcony. Entering
the apartment, officers found Clemons’s body in the bedroom. Popik was arrested
near the apartment complex, but Michaels escaped in the getaway car driven by
Paulk.
After leaving the crime scene, Michaels went to Camp Pendleton, a nearby
Marine base, to visit two acquaintances, Rodney Hatch and Leon Madrid. Michaels
told Hatch that he had cut a woman’s throat during a robbery; he informed Madrid
and two other witnesses that he was running from the law and “made a motion
across [his] throat with his finger” when asked if he killed someone.
Two weeks later, police arrested Michaels while he was working at a nearby
carnival. Michaels was interrogated soon after his arrest by detectives Allen and
Gaylor. Michaels confessed during the interrogation that he had murdered Clemons
and described the crime in detail. He told interrogators that he had killed Clemons
“so Christina would not have to go back with her mother.” Michaels eventually
4
signed a statement saying that he had killed Clemons so Christina would not be
forced to live with her mother and “revert to her old habits and problems.” The
admissibility of large parts of that confession is a major issue in this appeal.
B. State Trial and Direct Appeal
Michaels was charged with (1) the capital murder of Clemons with four
special circumstances (financial gain, lying in wait, robbery, and burglary); (2)
robbery; and (3) burglary. All three counts alleged the use of a knife and the
infliction of great bodily injury.
The trial court initially appointed attorneys James Burns and Charles Duff to
represent Michaels. Before trial, Burns was relieved due to conflicts with
Michaels, and Duff was relieved for “personal reasons.” In their place, the trial
court appointed attorneys Richard Grossberg and Mark Chambers. Soon after the
new appointments, Michaels filed two motions to remove Grossberg as lead
counsel, contending that Grossberg was providing ineffective representation, and
Grossberg moved to be relieved from the case. The trial court denied both motions.
Michaels, unwilling to work with Grossberg, moved to represent himself. Michaels
was permitted to proceed pro se, but Chambers and Grossberg remained on the
scene as advisory counsel. As it turned out, Chambers conducted the entirety of the
defense case; Grossberg did not participate in the trial. People v. Michaels, 28 Cal.
4th 486, 521 (2002) (“Michaels I”).
5
Michaels’s case proceeded to trial in April 1990. The only contested issues
at the guilt phase were the degree of the murder, whether Michaels committed
robbery and burglary, and whether the special circumstances were satisfied.
Michaels maintained that he had killed Clemons to protect Christina from
continued sexual and physical abuse by her mother; the prosecution argued that
Michaels’s motive was stealing Clemons’s property and allowing Christina to
collect the proceeds of her mother’s life insurance policy. Id. at 501. The jury
convicted Michaels on all counts and found all the alleged special circumstances
true. Id. at 500.
The prosecution devoted most of the penalty phase to Michaels’s criminal
history and past misconduct, which included misdemeanor convictions for the theft
of firearms from a neighbor as a juvenile, illegal possession of weapons,
threatening Chad Fuller, and participating in the robbery of Chad Fuller, as well as
multiple arrests. Chad Fuller testified about how Michaels had threatened him with
a gun on one occasion, and a week or two later had helped two other men rob him.
Fuller also testified that Michaels had returned much of the stolen property.
Michaels’s childhood neighbor testified that, as a teenager, Michaels had stolen his
car and gun but later returned them. A childhood friend testified that, as a teenager,
Michaels had shown him a revolver. The prosecution played a tape of Michaels’s
interrogation in full, and also introduced two pieces of paper on which Michaels
6
had written lists of names, characterizing each document as a “hit list.” These lists
were admitted to show that Michaels sought a reputation as a professional killer,
not that he intended to kill anyone on the lists. Michaels I, 28 Cal 4th. at 534
In mitigation, Michaels’s sister and mother testified that Michaels’s father
was a violent alcoholic who beat him and his mother; that he witnessed his father
sexually molesting his sister when she was young; and that he had attempted
suicide at age eleven. Michaels’s family moved frequently to avoid his father, but
his father continued to harass the family, and worse—Michaels’s father tried to run
over the children with his car and to kidnap them. Christina’s foster mother also
testified, recounting that she had seen Clemons engage in inappropriate sexual
behavior with Christina. Finally, Michaels introduced testimony from a clinical
psychiatrist, who stated that Michaels suffered from major depressive disorder,
latent schizophrenia, and mixed personality disorder.
The prosecution’s sole evidence on rebuttal was a note Michaels had handed
to his lawyers, James Burns and Charles Duff, during the preliminary hearing
stating that he would commit violence against his then-codefendant Popik if Popik
was not reseated away from Michaels.
After penalty phase closing arguments, the jury deliberated for three days
before returning a death verdict.
7
On automatic appeal, the California Supreme Court affirmed Michaels’s
conviction and sentence. Michaels I, 28 Cal 4th at 542. The United States Supreme
Court denied certiorari. Michaels v. California, 538 U.S. 1058, 1058 (2003).
C. State and Federal Habeas Proceedings
In 1998, while his direct appeal was pending, Michaels filed a state habeas
petition with the California Supreme Court. The Court denied that petition in a
one-page summary order.
Thereafter, Michaels filed a federal habeas petition in the U.S. District Court
for the Southern District of California. The district court concluded that several of
the claims in the petition were unexhausted and granted a stay to allow Michaels to
exhaust those claims. Michaels then filed a second state habeas petition with the
California Supreme Court, which was denied in a one-page summary order.
After exhausting his claims in state court, Michaels filed an amended federal
habeas petition. In a series of decisions, the district court denied each of Michaels’s
claims on the merits. It also found that several of Michaels’s claims had been
procedurally defaulted but did not address whether cause and prejudice existed to
excuse the defaults, instead addressing the merits of those claims. In February
2015, the district court entered judgment denying Michaels’s petition on the merits,
8
granted a stay of execution, and certified twenty-three issues for appeal. Michaels
timely appealed, raising fourteen certified and two uncertified issues.3
II. Standard of Review
A. The AEDPA Framework
Michaels filed his federal habeas petition after AEDPA’s effective date, so
AEDPA deference applies to claims adjudicated on the merits in state court. See
Lindh v. Murphy, 521 U.S. 320, 326 (1997). We may grant a habeas petition
challenging a state conviction only if the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d). These standards are “highly deferential” to the state court.
Davis v. Ayala, 576 U.S. 257, 269 (2015).
A state court’s decision is contrary to clearly established federal law if
its decision contradicts the governing law articulated by the Supreme
Court or reaches a result different than that reached by the Supreme
Court on materially indistinguishable facts. See Terry Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). A state court’s decision is an
unreasonable application of clearly established federal law when the
3
Michaels raises the two uncertified issues in his opening brief. We construe
the briefing of those issues as a motion to expand the certificate of appealability,
U.S. Ct. of App. 9th Cir. R. 22-1(e), but deny certification. The claims referenced
throughout this opinion are the fourteen certified claims argued in Michaels’s
briefing.
9
state court identifies the correct legal rule, but applies it to a new set of
facts in a way that is objectively unreasonable. See id. at 407.
Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). “[W]e may only hold that a
state court’s decision was based on an unreasonable determination of the facts if
‘we [are] convinced that an appellate panel, applying the normal standards of
appellate review, could not reasonably conclude that the finding is supported by
the record.’” Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (quoting Taylor
v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). In other words, “[a] state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). Where the state court adjudicated the merits of a claim
in a summary decision rather than a reasoned opinion, “the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state
court to deny relief.” Id. at 98.
Although AEDPA sets a formidable standard, “[d]eference does not by
definition preclude relief. A federal court can disagree with a state court’s . . .
determination and, when guided by AEDPA, conclude the decision was
unreasonable.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). If the petitioner
does manage to surmount the hurdles of § 2254, we then resolve the entire claim
de novo, including any issues the state court did not reach because of the wrong
10
turn it took, “without the deference AEDPA otherwise requires.” Liao v. Junious,
817 F.3d 678, 688 (9th Cir. 2016) (quoting Panetti v. Quarterman, 551 U.S. 930,
953 (2007)).
B. Retroactivity of AEDPA
Michaels first raises a supervening argument—that § 2254(d) should not
apply to his case at all. 4 He recognizes that § 2254(d) applies as a statutory matter
but contends that such an application is unconstitutionally retroactive, in violation
of the Due Process Clause.
This contention rests on a mistaken understanding of retroactivity. A
statutory provision’s application is considered retroactive only if “the new
provision attaches new legal consequences to events completed before its
enactment.” Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994); see id. at
269-70. Where a federal statute is retroactive in that sense, due process concerns
arise because the Fifth Amendment’s Due Process Clause “protects the interests in
fair notice and repose that may be compromised by retroactive legislation.” Id. at
266.
4
Michaels also contends in passing that 28 U.S.C. § 2254(e), which limits
federal court authority to conduct evidentiary hearings, and § 2253, which requires
federal petitioners to secure a certificate of appealability before proceeding with an
appeal, are unconstitutionally retroactive as applied to his case. We reject these
arguments for the same reason we reject his argument regarding § 2254(d).
11
Michaels identifies no events completed before the enactment of AEDPA to
which § 2254 “attach[ed] new legal consequences.” Id. at 270. Michaels argues
that the relevant “event” to which legal consequences attached is the automatic
appeal of his capital sentence in state court, which occurred before AEDPA’s
effective date. But nothing in AEDPA affected the automatic appeal.
Section 2254(d) “place[d] a new constraint on the power of a federal habeas court
to grant a state prisoner’s application for a writ of habeas corpus.” Williams v.
Taylor, 529 U.S. 362, 412 (2000). The provision attached new legal consequences
to petitions for federal habeas relief, not to Michaels’s state court litigation. That
litigation was resolved on state law grounds and substantive rules of constitutional
law, both unaffected by AEDPA.
For similar reasons, Michaels’s attempt to analogize his case to Ixcot v.
Holder, 646 F.3d 1202 (9th Cir. 2011), is unavailing. Ixcot held impermissibly
retroactive the application of a statute disqualifying immigrants who illegally
reenter the country from certain forms of discretionary relief. In Ixcot, the
petitioner had taken affirmative steps to seek such relief before the law’s effective
date. Id. at 1209-10. Michaels’s case is not like Ixcot, as Michaels did not take
12
affirmative steps to seek federal habeas relief—the relevant form of relief as to
which AEDPA created new legal limitations—before AEDPA was enacted.5
The Supreme Court has unequivocally held that AEDPA applies to federal
habeas petitions filed after the statute’s effective date, Woodford v. Garceau, 538
U.S. 202, 205-06 (2003); Lindh, 521 U.S. at 326, and on numerous occasions has
applied § 2254(d) to cases in which the state court appeals began prior to that law’s
enactment. See, e.g., Cullen v. Pinholster, 563 U.S. 170, 177, 181 (2011); Wiggins
v. Smith, 539 U.S. 510, 516, 520 (2003). In this case as well, § 2254(d)
constitutionally applies to the claims adjudicated on the merits by the state court
before AEDPA’s effective date.
III. Admission of Michaels’s Taped Confession
A. Background
Detectives Allen and Gaylor interrogated Michaels shortly after his arrest a
few weeks after the murder. During the two-and-a-half-hour taped interrogation,
Michaels confessed to murdering Clemons. Claim Three challenges, under
Miranda v. Arizona, 384 U.S. 436 (1966), the admission of the confession at both
5
Although the exhaustion and procedural default doctrines that required
Michaels to pursue his claims in state court before filing a federal habeas petition
may have affected Michaels’s state appeal, those doctrines preexisted AEDPA.
See, e.g., Picard v Connor, 404 U.S. 270, 275 (1971); Lambrix v. Singletary, 520
U.S. 518, 522-23 (1997).
13
the guilt and penalty phases of trial, on the ground that the confession was elicited
after Michaels invoked his rights to counsel and to silence. 6
The detectives’ interrogation of Michaels began as follows: 7
Allen: This is Kurt Michaels [defendant]. No middle name.
Gaylor: Kurt, what’s your middle name? None.
Michaels: Legal [name is] changed for the third time.
Gaylor: Where does your family live, Kurt?
Michaels: Who knows honestly? I wish I knew or I’d be with them
now. I’d be able to get the other pictures in my other coat.
Gaylor: Well, I’ll tell you. I’ve been doing this for about twelve
years. John’s been doing this for about thirteen years, here.
And a couple of years with the San Diego Police before
that. And a few years with the Highway Patrol before that.
And if there’s one thing we know, it’s that there’s always
more than one side to every story. So what we want to do
is provide you with an opportunity to tell your side of the
story, because this last two weeks, we’ve been talking with
a lot of different people and have gotten a lot of different
information from different people.
Michaels: You found out I am a mental case. (Laughter.)
Gaylor: So, now it’s your turn to tell your side of the story.
Okay? Also, if you have any questions, it will be your
opportunity to ask them, all right? Before we do that,
though, I want to read you your rights. [Reads standard
6
Claim Two argues that we should first adjudicate each of Michaels’s
claims on the merits and remand to the district court if there is a question regarding
procedural default. As will become clear once we address all the claims, remand
for such a determination is unnecessary.
7
Except the italicizations, all alterations noted appear in the original
transcript.
14
Miranda warnings.] Do you understand each of these
rights I’ve explained to you? (Defendant nods his head
yes.) Is that yes?
Michaels: Yes.
Gaylor: Okay. Having in mind and understanding your rights as
I’ve told you, are you willing to talk with us?
Michaels: Sure. No problem.
Gaylor: Do you know why you’re here?
Michaels: Yes.
Gaylor: Tell me, in your own words.
Michaels: Murder.
Gaylor: Murder of who?
Michaels: Murder of JoAnn Clemons.
Gaylor: Well, what’s your side of the story? What happened?
Michaels: I don’t know if I should without an attorney. (Laughter.)
It ain’t going to do me no . . . . (Laughter.)
Allen: Well, we need to know. Let’s put it this way, Kurt. He
just advised you of your rights. And you said, that yeah,
you wanted to talk to us. There’s no problem. If at any
time that you do not want to talk with us, you can stop at
any particular time. If there’s any time that we ask you a
question that you don’t want to answer, you can stop at
any time.
Michaels: Okay, that one. (Laughter.)
Allen: Well, what I’m saying is that we just want to make sure
you understand all those things.
Michaels: Okay, I appreciate it.
15
Allen: And the other thing that Chuck said was we have uh
pretty much understand what the story is and we like to
going to give you your opportunity.
Michaels I, 28 Cal 4th. at 508-09.
Following this exchange and additional questioning by the interrogators,
Michaels proceeded to confess in detail to his involvement in the homicide. He
revealed that he enlisted Popik for the murder, and that the two of them waited
outside Clemons’s apartment for her to go to sleep. Michaels stated that after they
entered the apartment, Clemons woke up, Popik physically beat her, and “I cut her
throat.” Michaels told interrogators that he killed Clemons “so Christina would not
have to go back with her mother.” Michaels also made statements suggesting that
he had killed “more than twenty” people.
Detective Allen was skeptical of Michaels’s remarks about his other
murders, stating “I think you’re making this up.” Later, Detective Allen asked,
“[s]o a lot of this is what you’re telling us has to do with you and your reputation
on the street is not really true?” Michaels answered, “right . . . I have to keep that
story alive.” No evidence was presented at trial indicating that Michaels had
committed any other homicide.
In the guilt phase, the trial court admitted the portions of the interrogation in
which Michaels confessed to his role in the Clemons murder but excluded his
comments about committing other murders. In the penalty phase, though, the trial
16
court admitted the entire taped interrogation. The jury was specially instructed that
Michaels’s comments about other killings were to be considered only as proof of
his mental state in connection with the charged murder, not for their truth. After
hearing the taped interrogation and the other evidence presented, the jury
sentenced Michaels to death.
B. Miranda
Miranda v. Arizona established the bedrock Fifth Amendment principle that
a court cannot admit statements obtained during the custodial interrogation of a
suspect unless certain procedural safeguards are met. 384 U.S. at 444. Those
safeguards include informing the suspect of his rights to remain silent and to
receive assistance of counsel before any questioning. Id. Any waiver of those
rights must be voluntary, knowing, and intelligent. Id. Recognizing that “the
authorities through badgering or overreaching—explicit or subtle, deliberate or
unintentional—might otherwise wear down the accused,” Smith v. Illinois, 469
U.S. 91, 98 (1984) (quotations and alterations omitted), the Supreme Court clearly
established a bright line safeguard: If a suspect “indicates in any manner, at any
time prior to or during questioning, that he wishes to remain silent,” officers must
cease the interrogation. Miranda, 384 U.S. at 473-74. The Court later clarified that
an invocation of a suspect’s Miranda rights must be “unambiguous.” Davis v.
United States, 512 U.S. 452, 459 (1994); see infra pp. 21-22.
17
Any unambiguous invocation of the right to remain silent must be
“scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 104 (1975) (quoting
Miranda, 348 U.S. at 479). Miranda elaborated on the consequences of failing to
respect a suspect’s invocation, explaining that a proper waiver was a
“prerequisite[] to the admissibility of any statement made by a defendant.”
Miranda, 384 U.S. at 476.
It is also clearly established that just as a suspect in custody may refuse to
answer all questions, he may selectively exercise his Miranda rights to silence and
to counsel. The purpose of Miranda’s prophylactic protections is to “counteract[]
the coercive pressures of the custodial setting,” Mosley, 423 U.S. at 104, by
“giving the defendant the power to exert some control over the course of the
interrogation,” Moran v. Burbine, 475 U.S. 412, 426 (1986) (emphasis in original).
“The mere fact that [a suspect] may have answered some questions or volunteered
some statements on his own does not deprive him of the right to refrain from
answering any further inquiries.” Miranda, 384 U.S. at 445.
After Miranda, Michigan v. Mosley considered how these principles apply in
practice—specifically, whether suppression of a defendant’s homicide confession
during an interrogation was required after he had refused to answer questions about
unrelated robberies in a previous interrogation. 423 U.S. at 104. Mosley first
explained that “[t]hrough the exercise of his option to terminate questioning[, a
18
suspect] can control the time at which questioning occurs, the subjects discussed,
and the duration of the interrogation.” Id. at 103-04. Mosley then held that the
defendant had selectively invoked his right to cut off questioning regarding the
robberies. But, Mosley held, the defendant’s confession to the homicide was
admissible because the confession was unrelated to the robberies, and the
defendant had not invoked his right to silence as to the homicide. Id. at 105.
Connecticut v. Barrett, 479 U.S. 523 (1987), confirmed that selective
invocations of Miranda rights must be honored. Barrett concerned the right to
counsel. But “[t]here is no principled reason to adopt different standards for
determining when an accused has invoked the Miranda right to remain silent and
the Miranda right to counsel . . . .” Berghuis v. Thompkins, 560 U.S. 370, 381
(2010).
Barrett involved a defendant who provided an oral confession after stating
that “he would not give the police any written statements [without counsel] but had
no problem in talking about the incident.”479 U.S. at 525. The Court held that the
defendant’s refusal to provide a written statement constituted a “limited invocation
of the right to counsel,” id. at 530, which triggered constitutional protections: “It is
undisputed that [the defendant] desired the presence of counsel before making a
written statement. Had the police obtained such a statement without meeting the
waiver standards of Edwards, it would clearly be inadmissible.” Id. at 529. The
19
invocation of the right to counsel with regard to a written statement did not,
however, affect the admissibility of the oral confession, as to which the defendant
had voluntarily announced his willingness to speak with authorities without
counsel. Id.Mosley and Barrett clearly established that when a suspect selectively
invokes his right to silence or to counsel, Miranda requires interrogation to end
with respect to the subject matter or mode of reply as to which the suspect invoked
the right. See Mosley, 423 U.S. at 103-04; Miranda, 384 U.S. at 473-74. We so
recognized in Arnold v. Runnels, concluding that “[a]ny reasonable application of
the law must begin by recognizing that [the defendant] clearly and unequivocally
invoked his Miranda rights selectively.”8 421 F.3d 859, 864 (9th Cir. 2005) (citing
Mosley, 423 U.S. at 103-04; Barrett, 479 U.S. at 529). Arnold went on to hold,
under deferential AEDPA review, that admission of the defendant’s taped
interview was unconstitutional because he had selectively invoked his right to
silence as to audio-recorded statements. Id. at 866.9
8
Under AEDPA review, “an appellate panel may, in accordance with its
usual law-of-the-circuit procedures, look to circuit precedent to ascertain whether it
has already held that the particular point in issue is clearly established by Supreme
Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
9
This Court’s decision in United States v. Garcia-Morales, 942 F.3d 474(9th Cir. 2019), has no bearing on this case. Garcia-Morales held that the district
court did not err in admitting an exchange between Garcia-Morales and an
20
That an individual in custody can selectively invoke his Miranda rights does
not obviate the requirement that a suspect must invoke any Miranda right
unambiguously and unequivocally to trigger its protection. See Berghuis, 560 U.S.
at 381-82; Davis, 512 U.S. at 459. More specifically, the relevant clearly
established Supreme Court law is as follows:
First, an unambiguous and unequivocal Miranda invocation “cuts off”
questioning—even questioning intended to clarify that the accused is invoking
his Miranda rights. See Berghuis, 560 U.S. at 382 (explaining that if the
accused makes a “simple” statement that he wants to remain silent, he invokes
“his right to cut off questioning” (internal quotation marks omitted)); Smith,
469 U.S. at 98 (“Where nothing about the request for counsel or the
circumstances leading up to the request would render it ambiguous, all
questioning must cease.”). Second, an ambiguous or equivocal Miranda
invocation “do[es] not require the cessation of questioning.” Davis, 512 U.S.
at 459. Finally, in determining whether a request is ambiguous or equivocal,
the court must apply an objective inquiry: “Although a suspect need not speak
with the discrimination of an Oxford don, he must articulate his desire to have
counsel present [or to remain silent] sufficiently clearly that a reasonable
police officer in the circumstances would understand the statement to be a
request for an attorney.” Id. (internal quotation marks and citation omitted).
interrogating police officer which “demonstrated that Garcia did not want to
discuss his co-conspirators on video tape,” because the exchange did not constitute
a selective invocation of Garcia-Morales’s right to remain silent. 942 F.3d at 476-
77. Garcia-Morales never made any statements regarding his co-conspirators, the
subject he had allegedly invoked his right not to answer questions about. Instead,
Garcia-Morales argued that admission at trial of the alleged invocation itself was
plain error, relying on Doyle v. Ohio, 426 U.S. 610, 617-19 (1976), and its
progeny, which hold that the prosecution violates due process in eliciting
testimony about a suspect’s silence. 942 F.3d at 476. In this case, Michaels was not
harmed by the admission of his invocation (“okay, that one”), but by the admission
of the testimony regarding the subject as to which he invoked his right to remain
silent (“what happened”). Garcia-Morales is therefore inapt.
21
Garcia v. Long, 808 F.3d 771, 778 (9th Cir. 2015).
C. AEDPA Review of State Court Decision
On direct appeal, the California Supreme Court held that the interrogating
officers did not violate Michaels’s right to counsel or his right to silence with
respect to all questioning because Michaels did not unequivocally invoke either
right. Michaels I, 28 Cal. 4th at 510-11. The full analysis of the issue was as
follows:
Defendant’s statement, “Okay, that one” implies a refusal to answer a
particular question, perhaps Detective Gaylor’s question asking defendant:
“[W]hat’s your side of the story? What happened?” Defendant did not assert
a right to refuse to answer any questions, ask that the questioning come to a
halt, or request counsel. Instead, he was showing that he knew he could refuse
to answer any or all questions and would exercise this right on a question-by-
question basis. From time to time in the interrogation he did refuse to answer
specific questions. But the words defendant used, and his subsequent conduct,
do not show that he wanted to stop the interrogation and bar all further
questions.
The case is analogous to People v. Silva, 45 Cal.3d 604 (1988). There, the
defendant waived Miranda rights and answered several questions, then
refused to answer a question that might place him at the site where the murder
victim was kidnapped. The interrogation continued, with the defendant
answering some questions and not others. We concluded that the defendant’s
constitutional rights were not violated, because “[a] defendant may indicate
an unwillingness to discuss certain subjects without manifesting a desire to
terminate ‘an interrogation already in progress.’” Id. at 629-630. The same is
true here.
Michaels I, 28 Cal. 4th at 510-11 (emphasis added) (alterations in original).
22
The state court’s conclusion that Michaels did not unambiguously invoke
either his right to counsel or his right to silence with respect to all questioning is
fully supported by the record. See id. at 510.
First, Michaels’s statement “I don’t know if I should without an attorney” is
ambiguous under Davis v. United States, 512 U.S. 452 (1994). Davis held that the
statement “[m]aybe I should talk to a lawyer” did not constitute an unambiguous
request for counsel. Id. at 462. Similarly, Michaels did not unambiguously invoke
his right to counsel when he equivocated about whether he should speak without a
lawyer present.
Second, Michaels never requested that all questioning come to a halt. In
response to an interrogating officer informing him that he could choose to stop
answering any question at any time, Michaels stated, “Okay, that one.” That
response cannot reasonably be interpreted to be a general refusal to answer
questions. The term “that” refers to “a fact, act, or occurrence, or a statement or
question, implied or contained in the previous sentence.” That, Oxford English
Dictionary (2d ed. 1989) (emphasis added). So the pronoun “that” in context
referred to a specific inquiry, not to all inquiries.
At the same time, the California Supreme Court recognized that Michaels
did invoke the selective right to silence protected by Miranda. Michaels I held that
“[d]efendant’s statement, ‘Okay, that one’ implies a refusal to answer a particular
23
question, perhaps Detective Gaylor’s question asking defendant: ‘[W]hat’s your
side of the story? What happened?’” 28 Cal. 4th at 510 (alterations in original).
Michaels I reasoned further that Michaels’s “case is analogous to People v. Silva,
[45 Cal. 3d 604 (1988)]” which involved a defendant who refused to answer a
specific question during his interrogation. Michaels I, 28 Cal. 4th at 510. Quoting
the holding in Silva—“[a] defendant may indicate an unwillingness to discuss
certain subjects without manifesting a desire to terminate ‘an interrogation already
in progress,’” 45 Cal. 3d at 629 (citation omitted)—Michaels I concluded, “[t]he
same is true here.” 28 Cal. 4th at 511. 10 By equating Michaels’s case to Silva,
Michaels I confirmed that it considered Michaels’s statement to be a refusal to
answer a particular question.
Despite its correct premise that Michaels had selectively invoked his right
not to answer a specific question, Michaels I stopped there. It neither determined
precisely what question Michaels had declared off limits nor whether the ensuing
interrogation impermissibly violated Michaels’s invocation of his right to silence
with regard to the subject covered by that question. Yet, as Miranda and the
ensuing precedents clearly establish, when a suspect unequivocally invokes his
10
We note that the officers in Silva respected the suspect’s selective
invocation and “asked questions involving areas other than the [subject of the
invocation].” 45 Cal. 3d at 629. In contrast, the officers in this case ignored
Michaels’s selective invocation and continued to ask him about the murder.
24
Miranda rights “the interrogation must cease.” Miranda, 384 U.S. at 474. In the
context of selective invocation of the Miranda right to silence, the cessation
requirement means that police officers cannot continue to ask about the same
subject the suspect said he did not want to talk about. Michaels I did not so
recognize.
Instead, Michaels I indicated that Michaels had to invoke his selective right
to silence “on a question-by-question basis,” even if he had previously declared a
subject matter off limits by declining to answer a broad question about it. 28 Cal.
4th at 510. Michaels I’s decision to ignore a defendant’s unambiguous and
unequivocal selective invocation of his right to silence as to an area of inquiry
during a custodial interrogation, requiring instead that the refusal be repeated in
response to each question regarding the subject matter as to which the right was
earlier invoked, was contrary to the law clearly established by Miranda and its
progeny. See Mosley, 423 U.S. at 103-04; Miranda, 384 U.S. at 473-74.
D. De Novo Review of Michaels’s Miranda Claim
Because the California Supreme Court’s decision rested on an application of
Miranda contrary to clearly established federal law, we review de novo the aspects
of Michaels’s selective invocation of Miranda claim. See Panetti, 551 U.S. at 953.
Michaels I’s conclusion that Michaels selectively invoked his right to silence
is correct. Michaels I held that “[d]efendant’s statement, ‘Okay, that one’ implies a
25
refusal to answer a particular question, perhaps Detective Gaylor’s question asking
defendant: ‘[W]hat’s your side of the story? What happened?’” 28 Cal. 4th at 510(alterations in original). Although Michaels I used the word “perhaps,” once one
recognizes—as Michaels I does—that he was refusing to answer some question,
the last preceding questions “What’s your side of the story? What happened?” are
the only possible questions to which Michaels could have been referring.
“In light of clear Supreme Court precedent, we have recognized the
importance of evaluating a suspect’s in-custody statements as a whole.” Sessoms v.
Grounds, 776 F.3d 615, 627 (9th Cir. 2015) (en banc). In context, the phrase
“Okay, that one” is susceptible to only one reasonable interpretation, as an
unambiguous invocation of the right that he was just informed of—to “stop
[talking] at any particular time” —with respect to the last question he was asked:
“Well, what’s your side of the story? What happened?” This question was the only
substantive question, and the last question, asked. By selectively invoking his right
to remain silent in response to this broad question, Michaels stated that he did not
want to discuss “what happened” with regard to the murder. Although Michaels
did not repeat the question in his own words, the reference is clear.
Michaels did go on to answer questions regarding the subject he had
declared off-limits—his version of how the murder occurred. But “an accused’s
postrequest [sic] responses to further interrogation may not be used to cast doubt
26
on the clarity of his initial request for counsel.” Smith, 469 U.S. at 92 (emphasis
added); see also Garcia, 808 F.3d at 778. Thus, Michaels’s subsequent answers to
detectives’ questions cannot undermine his otherwise unambiguous invocation of
his right to silence, contrary to Michaels I’s analysis. 28 Cal. 4th at 510-11.
Following Michaels’s unambiguous, unequivocal invocation of his selective
right to silence, the interrogating officers should have ceased asking him about
“What’s your side of the story? What happened?” See Miranda, 384 U.S. at 473-
74. In Mosley, for example, an invocation of a right to silence was “scrupulously
honored” when police “immediately ceased the interrogation” and “restricted the
second interrogation to a crime that had not been a subject of the earlier
interrogation.” 423 U.S. at 104, 106. Here, however, Detective Allen ignored
Michaels’s invocation and proceeded along precisely the same line of questioning:
“We’re like going to give you your opportunity . . . to understand your side of the
story.” The detectives then continued to ask Michaels questions about “his story”
regarding the murder and the events leading up to it. After a battery of questions,
Michaels eventually confessed that he planned to murder Clemons and that he
stabbed her to death on October 2, 1988.
Admission at trial of the parts of the taped interrogation that did not relate to
Michaels’s involvement in the murder—his comments about killing others, for
example, and the discussion of his relationship with Christina—did not violate
27
Miranda, as Michaels did not unambiguously invoke his rights to silence or to
counsel with respect to all questioning. But the detectives’ continued questioning
regarding Michaels’s role in the murder after Michaels’s selective invocation did
violate his Miranda rights. Admission of the parts of the interrogation in which
Michaels confessed to “what happened,” was constitutional error.
E. Harmless Error
Admission of evidence in violation of Miranda requires reversal of a
defendant’s conviction and sentence only if the error likely had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Sessoms, 776 F.3d
at 629 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). “If, reviewing
the facts as a whole, we are able to determine with fair assurance that the judgment
was not substantially swayed by the error, we may conclude that the error was
harmless. Otherwise, we must conclude that the petitioner’s rights were
substantially and injuriously affected.” Hurd v. Terhune, 619 F.3d 1080, 1090 (9th
Cir. 2010) (citation omitted). Because it held there was no Miranda violation, the
California Supreme Court made no determination as to whether any such error was
harmless. So we review this element of Michaels’s claim de novo. See Porter v.
McCollum, 558 U.S. 30, 39 (2009) (per curiam).
Ordinarily, a defendant’s own confession is “the most probative and
damaging evidence that can be admitted against him.” Arizona v. Fulminante, 499
28
U.S. 279, 296 (1991) (quotation marks omitted). When the jury considers a full
confession, there is a high probability that it will rely on the confession alone in
rendering its decision. Id. An erroneously admitted confession “will seldom be
harmless.” United States v. Williams, 435 F.3d 1148, 1162 (9th Cir. 2006) (citing
Fulminante, 499 U.S. at 296).
But seldom does not mean never. In this case, the evidence presented at trial
showing that Michaels committed capital murder was overwhelming even without
the confession. The Miranda violation was therefore harmless as to the guilt phase.
The separate opinions in this case address harmlessness under Brecht during the
penalty phase.
1. Guilt Phase
At the guilt phase of Michaels’s trial, a mountain of witness testimony aside
from the taped confession indicated that Michaels had committed capital murder.
First, three of Michaels’s roommates who spent time with him less than forty-eight
hours before the murder testified either that Michaels directly told them about his
plans to kill Clemons or that they overheard Michaels speak about his plans do so.
Roommate Mark Hebert testified that Michaels had asked him to help “tax”
Clemons while making a gesture with his hand that resembled slitting her throat.
Hebert explained that “tax” referred to collecting a debt by force. Velinda Davis,
another roommate, testified that she heard Michaels tell Christina that he would
29
“knock off the old lady.” On the evening of the murder, Davis saw Michaels and
Popik take steps to alter their appearance and heard them say they were going to
“tax someone.” Davis later realized that her kitchen knife was missing. Kimberly
Platt, also a roommate, testified that Michaels told her he was going to “tax [an]
old lady.”
Other testimony placed Michaels in Clemons’s apartment at the relevant
time. Michael Crawford testified that, on the evening of the murder, he saw
Michaels and Popik walking on the side of the street and offered them a ride. He
dropped them off approximately a mile and a half from Clemons’s apartment a few
hours before the murder. Kimberly Anderson, who lived on the same floor as
Clemons, testified that she came home at midnight on the night of the murder and
saw Michaels and Popik walking toward Clemons’s apartment.
The prosecution also introduced strong circumstantial evidence that
Michaels murdered Clemons. Hair found in Clemons’s hand matched Michaels’s
hair color, width, and structure. A crime scene reconstructionist testified that the
killer would have had a lot of blood on his clothing, effectively ruling out Popik as
the killer because he did not have enough blood on him when he was arrested
shortly after the murder. Hebert testified that he had arranged for Paulk to drive the
getaway car for Michaels and Popik; Charles Merritt, from the crime lab, testified
30
that Michaels’s identification, along with a belt buckle he was seen wearing the
day before the murder, were found in Paulk’s car.
Finally, the prosecution presented testimony from four witnesses to whom
Michaels admitted, the night of the murder, killing a woman by cutting her throat.
Rodney Hatch testified that Michaels said that he had sliced a woman’s throat
during a burglary. Dennis Lucas testified that Michaels told him and two other
witnesses that Michaels “and another companion had killed his girlfriend’s
mother” and had “cut her throat with a knife.” Leon Madrid’s and Kim
Burkhalter’s testimony supported Lucas’s account. The jury therefore would have
heard a version of Michaels’s confession of guilt through these witnesses even if
the taped confession had been excluded.
In short, evidence concerning events before, during, and after the murder
pointed to Michaels’s guilt, as did circumstantial evidence found in connection
with the crime. Michaels’s taped confession, which recounted the murder and the
events leading up to it in detail, confirmed what the witnesses and evidence already
revealed, but, with respect to guilt (as opposed to details of the murder and
motive), provided little additional information. Although confessions are powerful
evidence, Fulminante, 499 U.S. at 296, the weight of the other evidence presented
at trial overwhelmingly showed that Michaels murdered Clemons. We therefore
conclude that the improper admission of his confession to the police did not have
31
“a substantial and injurious effect or influence on the jury” with regard to the guilt
phase. Brecht, 507 U.S. at 623.
2. Sentencing Phase
Assessing the likely impact of the confession on the penalty phase of the
trial, the members of this panel reach different conclusions, discussed in the
accompanying opinion and dissent. The majority concludes that the impact of the
confession on the penalty phase was harmless under Brecht.
IV. Ineffective Assistance of Counsel for Disclosing Confidential Note to the
Prosecution
A. Background
In Claim Four, Michaels argues that his trial lawyers provided ineffective
assistance of counsel (“IAC”) by disclosing to the prosecution a confidential note
from Michaels to his lawyers. The note was presented, and its import emphasized,
as aggravating evidence during the penalty phase.
Attorneys Burns and Duff represented Michaels in the early stages of his
case, before it was severed from those of his codefendants Popik and Paulk. During
the preliminary hearing on January 26, 1989, attended by all three defendants,
Michaels handed his attorneys a folded handwritten note (“Popik note”). The note
stated in part:
[I] [r]equest each of the accused be put in separate handcuffs and that
Mr. Popik sit at least one seat from his other co-defendants. There will
32
be great problems if this cannot be arranged as neither of his co-
defendants are willing to restrain themselves from doing Popik bodily
harm if forced to be locked up to him or sit next to him. Popik will be
hurt if something can’t be worked out.
Burns and Duff read the note, informed the court that a matter needed immediate
attention, and, at an ex parte meeting, gave the judge the note. The court sealed the
note and the transcript of the ex parte hearing, changed the seating arrangement of
the codefendants, and continued with the preliminary hearing.
The Popik note remained sealed until after attorneys Duff and Burns were
replaced by attorneys Chambers and Grossberg. On September 11, 1989, the
defense and the prosecution jointly requested that the trial court unseal several
previously sealed documents. Defense counsel “d[idn’t] know what [the
documents they were asking to unseal] were.” The trial court granted that request,
allowing the prosecution to view the contents of the Popik note for the first time.
During the penalty phase, the prosecution initially moved to offer the Popik
note as aggravating evidence. The trial court ruled the note inadmissible. But, after
Michaels offered testimony from three character witnesses to demonstrate that he
was not dangerous, the trial court admitted the note as rebuttal evidence. Three
witnesses testified about the Popik note, including Duff, Michaels’s attorney who
had read the note during the preliminary hearing. The Popik note was the last
evidence the prosecution presented and the only matter covered during the
33
government’s penalty phase rebuttal. The prosecution referred to the note in
closing argument.
On direct appeal, Michaels argued that the trial court erred in admitting the
Popik note as rebuttal evidence because it had been disclosed in violation of the
attorney-client privilege. The California Supreme Court held that introduction of
the Popik note violated the attorney-client privilege but was harmless. Michaels I,
28 Cal. 4th at 538.
Michaels raised the Popik note issue again on state post-conviction review in
his second state habeas petition, this time as an IAC claim that his counsel violated
attorney-client privilege by disclosing the note to the prosecution. The California
Supreme Court rejected this claim in a summary order on the merits as untimely
and successive, and because it could have been raised in Michaels’s first state
habeas petition. Michaels then raised the IAC claim in the district court, focusing
almost entirely on the prejudice prong of Strickland v. Washington, 466 U.S. 668(1984). To support his contention that trial counsel had provided deficient
performance, Michaels succinctly explained that “[t]he Supreme Court of
California held that [Michaels’s] attorneys violated the attorney-client privilege by
disclosing the note,” and “[w]hen an attorney violates the attorney-client privilege,
he has engaged in deficient performance under . . . Strickland.”
34
The district court addressed the merits of Michaels’s Popik note IAC claim
“irrespective of the state supreme court’s application of procedural bars.” Noting
that “it is questionable whether trial counsel’s course of action ‘falls within the
wide range of reasonable professional assistance,’” the district court ultimately
held that, applying AEDPA deference, Michaels’s IAC claim failed under
Strickland’s prejudice prong.
B. Procedural Default
The government maintains that Michaels procedurally defaulted his Popik
note IAC claim by failing properly to raise it in state court. Applying Martinez v.
Ryan, 566 U.S. 1 (2012), we reject this contention.
Federal courts are precluded from reviewing a claim that has been
procedurally defaulted “pursuant to an independent and adequate state procedural
rule . . . unless the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law.” Runningeagle v. Ryan,
825 F.3d 970, 978-79 (9th Cir. 2016) (quoting Coleman v. Thompson, 501 U.S.
722, 750 (1991)). Martinez held that a petitioner can establish cause for the
procedural default of a “substantial claim of ineffective assistance at trial” if
“under state law, claims of ineffective assistance of trial counsel must be raised in
an initial-review collateral proceeding” and “there was no counsel or counsel in
that proceeding was ineffective.” 566 U.S. at 17. A “state court’s alternate ruling
35
on the merits of the IAC claim,” as occurred here, “does not allow a federal court
to ignore the procedural default ruling[;] it also does not bar a federal court from
applying Martinez.” Apelt v. Ryan, 878 F.3d 800, 827 (9th Cir. 2017). So our
question at this juncture is whether Michaels’s procedural default of his trial
counsel IAC claim with regard to the Popik note is excused under Martinez.
First, as to whether Martinez applies at all, Martinez’s holding is applicable
to the criminal judgments of states whose procedures require, as a practical matter
even if not as a legal mandate, that petitioners raise claims of ineffective assistance
in an initial-review collateral proceeding. Trevino v. Thaler, 569 U.S. 413, 417,
423 (2013). California is one such state. California “[a]ppellate jurisdiction is
limited to the four corners of the record on appeal,” In re Carpenter, 9 Cal. 4th
634, 646 (1995), yet trial counsel IAC claims often depend on evidence outside the
trial record. Reflecting this limitation, the California Supreme Court has
consistently held that “claims of ineffective assistance of counsel should be raised
on habeas corpus, not on direct appeal.” People v. Lopez, 42 Cal. 4th 960, 972
(2008); see also People v. Wilson, 3 Cal. 4th 926, 936 (1992); People v. Pope, 23
Cal. 3d 412, 426 n.17 (1979). Consistent with that edict, the California Supreme
Court in this case rejected other trial counsel IAC claims Michaels raised on direct
appeal, noting, “[w]e have repeatedly emphasized that a claim of ineffective
assistance is more appropriately decided in a habeas corpus proceeding.” Michaels
36
I, 28 Cal. 4th at 526. California’s procedural framework thus makes it “highly
unlikely in a typical case” that direct appeal will offer a “meaningful opportunity”
for review of trial counsel IAC claims. Trevino, 569 U.S. at 429; see Woods v.
Sinclair, 764 F.3d 1109, 1137 (9th Cir. 2014) (applying Trevino and holding that
Washington state law meets the Martinez requirement that IAC claims are to be
raised in initial-review collateral proceedings). Martinez therefore applies.
As to whether the Popik note IAC claim was actually defaulted, Michaels
argues that it was not because he raised a merits claim regarding the note on direct
appeal. But even if Michaels’s reference to the Popik note in his direct appeal
could be understood as attempting to raise the IAC claim at that junction—which is
doubtful—IAC claims in California, as noted, should generally be raised in the
first habeas corpus petition. Lopez, 42 Cal. 4th at 972. Michaels did not raise the
Popik note claim on initial state habeas review, as required by California law. The
IAC claim was therefore procedurally defaulted.
C. Application of Martinez v. Ryan
The district court rejected the Popik note claim on the merits for lack of
Strickland prejudice and so did not address whether Michaels’s default should be
excused under Martinez. However, a conclusion on the merits of an ineffective
assistance of trial counsel claim under Strickland holds a petitioner to a higher
burden than required in the Martinez procedural default context, which only
37
requires a showing that the ineffective assistance of trial counsel claim is
“substantial.” Martinez, 566 U.S. at 17. That is especially true here, where we are
required to apply AEDPA deference under 28 U.S.C. § 2254(d) to the state court’s
summary merits decision on the IAC claim, but not to the logically prior question
whether the procedural default of that claim is excused under Martinez. See Apelt,
878 F.3d at 826-31 (applying AEDPA deference to a state court’s rejection of a
trial counsel IAC claim, but not to the Martinez analysis of whether ineffective
post-conviction counsel excused the procedural default of the claim).
Additionally, we recognized in Williams v. Filson that IAC claims that
sufficiently demonstrate counsel’s deficient performance under Strickland but are
insufficient to establish Strickland prejudice under AEDPA review are considered
for their prejudicial effect in a cumulative error analysis. 908 F.3d 546, 570 (9th
Cir. 2018). Williams held that the district court abused its discretion in denying an
evidentiary hearing on an IAC claim regarding the failure to investigate and
present evidence regarding Williams’s childhood and remanded for a hearing to
determine if Williams was prejudiced by his counsel’s deficient performance. Id.
569-70. Relevant here is Williams’s direction that the district court’s evidentiary
hearing should also develop evidence regarding a different IAC claim—concerning
the failure to present evidence of brain damage—even though, applying AEDPA
deference, “it was not unreasonable for the Nevada Supreme Court to conclude that
38
[the] evidence did not, on its own, give rise to a reasonable probability that the
outcome of the sentencing hearing would have been different.” Id. at 564; 570-71.
We explained that the “incremental impact” of counsel’s deficient performance in
failing to present evidence of brain damage, although not independently prejudicial
under AEDPA review, was to be considered as part of a cumulative prejudice
analysis. Id. at 570; see also Alcala v. Woodford, 334 F.3d 862, 893-94 (9th Cir.
2003) (holding it proper to consider prejudice of deficient performance of counsel,
along with trial court errors, in a cumulative error analysis, without reaching the
prejudice of each IAC claim individually).
Michaels raised a cumulative error argument with regard to the penalty
phase in his habeas petition and now on appeal. Michaels’s Popik note IAC claim
is therefore relevant not only as an isolated claim. If Michaels has satisfied the
Martinez requirements, and applying AEDPA deference, his counsel’s
performance was constitutionally deficient on the merits, that error is also
potentially relevant in the context of cumulative error, independent of any isolated
Strickland prejudice analysis under AEDPA.
We therefore address the Martinez issue regarding Michaels’s Popik note
IAC claim before turning to the merits of the deficient representation aspect of that
claim under AEDPA.
39
Under Martinez, Michaels must prove both “cause” and “prejudice.” 566
U.S. at 10. To demonstrate “cause,” Michaels must show that “appointed counsel
in the initial-review collateral proceeding, where the claim should have been
raised, was ineffective under the standards of Strickland v. Washington, 466 U.S.
668 (1984).” Id. at 14. Strickland in turn requires a petitioner establish both (1)
counsel’s deficient performance and (2) prejudice. 466 U.S. at 687. To demonstrate
prejudice under Strickland, the petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome,” not a probability
that the result “more likely than not” would have been different. Id. at 693-94.
To establish “prejudice” under Martinez, the underlying trial counsel IAC
claim must also be “a substantial one, which is to say . . . that the claim has some
merit.” 566 U.S. at 14. Although the cause and prejudice requirements are distinct,
“[t]here is considerable overlap between these requirements, since each considers
the strength and validity of the underlying ineffective assistance claim.” Djerf v.
Ryan, 931 F.3d 870, 880 (9th Cir. 2019).
We first address the prejudice prong of Martinez to determine whether
Michaels’s claim of ineffective assistance of trial counsel is “substantial.” See
Dickinson v. Shinn, 2 F.4th 851, 858 (9th Cir. 2021). We then evaluate the actions
40
of Michaels’s post-conviction counsel with regard to the trial counsel Popik note
IAC claim under Strickland, to determine whether Michaels satisfies the cause
requirement of Martinez. Based on this analysis, we conclude that the procedural
default of Michaels’s IAC claim is excused under Martinez. See Apelt, 878 F.3d at
825.
1. Ineffective Assistance of Trial Counsel and Prejudice Under Martinez
Michaels contends that his trial counsel provided ineffective assistance by
violating the attorney-client privilege, resulting in the disclosure to the prosecution
of a damaging confidential communication. As the government recognized in its
briefing, and as is clear from the record, Michaels mistakenly framed this IAC
claim as an assertion that attorneys Burns and Duff, rather than Chambers and
Grossberg, disclosed the Popik note to the prosecution. But Michaels has argued
throughout his habeas proceedings that “giving the prosecution evidence” is what
amounted to ineffective assistance of counsel. And, as we will discuss, both sets of
attorneys breached of their duty of confidentiality; it was the actions of all of them,
taken together, that resulted in the prosecution introducing the Popik note at trial.
Michaels’s misnaming of the specific attorneys who directly triggered the release
of the Popik note to the prosecution does not affect our analysis.
a. Deficient Performance
41
McClure v. Thompson held that “[t]he duty of an attorney to keep his or her
client’s confidences in all but a handful of carefully defined circumstances is so
deeply ingrained in our legal system and so uniformly acknowledged as a critical
component of reasonable representation by counsel that departure from this rule
‘make[s] out a deprivation of the Sixth Amendment right to counsel.’” 323 F.3d
1233, 1242-43 (9th Cir. 2003) (quoting Nix v. Whiteside, 475 U.S. 157, 171
(1986)). McClure addressed whether a state court unreasonably denied a
petitioner’s claim that his defense counsel rendered ineffective assistance by
revealing information about the location of kidnapping victims who may have still
been alive when the petitioner told his attorney the information in confidence. Id.
at 1236-37. Opining that “[t]here are few professional relationships ‘involving a
higher trust and confidence than that of attorney and client,’ and ‘few more
anxiously guarded by the law, or governed by sterner principles of morality and
justice,’” McClure held that unexcused disclosures of confidential information
constituted constitutionally deficient performance. 11 Id. at 1242-43 (quoting
Damron v. Herzog, 67 F.3d 211, 214 (9th Cir. 1995)). That holding was based on a
straightforward application of Strickland and Nix, which McClure understood to
“suggest[] that when ‘virtually all . . . sources speak with one voice’ as to what
11
McClure ultimately concluded that defense counsel’s disclosure fell into
one of the narrow exceptions to the general duty of confidentiality. Id. at 1243.
42
constitutes reasonable attorney performance, departure from ethical canons and
ABA guidelines ‘make[s] out a deprivation of the Sixth Amendment right to
counsel.’” Id. at 1242 (quoting Nix, 475 U.S. at 166, 171).
Following McClure’s example, we look to California law regarding
attorney-client privilege and attorney professional responsibility to guide our
analysis as to whether Michaels’s attorneys’ conduct fell below the minimum
acceptable standards of professional conduct and so constituted constitutionally
deficient performance. 12 See id. In 1989, the year Michaels’s first set of attorneys
handed the Popik note to the state court and also the year Michaels’s second set of
attorneys jointly moved with the prosecution to unseal the note, disclosing its
contents to the prosecution, California law spoke with “one voice” regarding the
attorney-client privilege. Id. (quoting Nix, 475 U.S. at 165). “Confidential
communication between client and lawyer” was defined in California as
“information transmitted between a client and his lawyer in the course of that
12
McClure also looked to the ABA Model Rules of Professional Conduct
because the Oregon Code of Professional Responsibility “echo[ed] both the
general principle of confidentiality” defined in the Model Rules, and “particular
exceptions” relevant in McClure. 323 F.3d at 1242. But California’s “ethical
prescriptions are those embodied in the state’s Rules of Professional Conduct and
certain provisions of the Business and Professions Code (e.g., §§ 6068, 6090.5-
6107),” and the ABA’s Model Rules of Professional Conduct has “no legal force
of [its] own.” Gen. Dynamics Corp. v. Superior Ct., 7 Cal. 4th 1164, 1190 n.6
(1994) (quotation omitted). We therefore do not consider the ABA Model Rules of
Professional Conduct here.
43
relationship and in confidence by a means which, so far as the client is aware,
discloses the information to no third persons.” Cal. Evid. Code § 952 (1967).
California law protected a client’s privilege “to refuse to disclose, and to prevent
another from disclosing, a confidential communication between client and lawyer.”
Cal. Evid. Code § 954 (1968). State law also imposed on every attorney the general
duty “[t]o maintain inviolate the confidence, and at every peril to himself or herself
to preserve the secrets, of his or her client.” Cal. Bus. & Prof. Code § 6068(e)
(1988).
Unlike the relevant ethical guidance in McClure, California law at the time
provided no exception to the attorney-client privilege or the duty of confidentiality
that could justify Michaels’s attorneys’ disclosure of a damaging and confidential
attorney-client communication. Cf. McClure, 323 F.3d at 1242. Michaels I
recognized that the California legislature in 1993 created an exception to the
attorney-client privilege “if the lawyer reasonably believes that disclosure of any
confidential communication . . . is necessary to prevent the client from committing
a criminal act that the lawyer believes is likely to result in death or substantial
bodily harm.” 28 Cal. 4th at 538 (quoting Cal. Evid. Code § 956.5 (1993)). A
similar exception was added in 2003 to the California Business and Professions
Code, Cal. Bus. & Prof. Code § 6068(e)(2) (2003), and a rule regarding
“Confidential Information of a Client” addressing § 6068(e) was added to the
44
California Rules of Professional Conduct, Cal. Rules of Prof. Conduct, rule 3-100
(2004). These exceptions and rules would be relevant to assessing an attorney’s
conduct today, but do not affect what constituted “reasonable attorney
performance” in 1989.
As the California Supreme Court correctly held, Michaels’s first set of trial
counsel breached attorney-client privilege when they disclosed the Popik note, a
confidential communication, to the trial court. See Michaels I, 28 Cal. 4th at 537-
38. The privilege was not waived when Michaels’s attorneys disclosed the note to
the court, as Michaels never consented to the waiver. Because “it is the client who
is the holder of the privilege, the power to waive it is his.” 1 McCormick on
Evidence § 93 (Robert P. Mosteller ed., 8th ed. 2020); see also Cal. Evid. Code
§ 954 (1968).
Michaels’s second set of attorneys similarly violated attorney-client
privilege by moving jointly with the prosecution to unseal the note, disclosing the
Popik note to the prosecution for the first time. As discussed infra pp. 54-55, that
Grossberg and Chambers’s disclosure of the note was apparently inadvertent does
not affect our conclusion that the breach of attorney-client confidentiality
amounted to constitutionally deficient performance.
Michaels’s attorneys’ breaches of attorney-client privilege, which together
resulted in the disclosure of a damaging confidential communication to the
45
prosecution, were egregious violations of trial counsel’s duty of confidentiality
under California law, and so a violation of Michaels’s right to effective assistance
of counsel. Michaels’s claim that his attorneys provided constitutionally deficient
assistance of counsel as to the Popik note clearly has “some merit,” and is therefore
a “substantial” claim under the first prong of Strickland. Martinez, 566 U.S. at 14.
b. Prejudice
Michaels also demonstrated a substantial claim of prejudice resulting from
his trial counsel’s deficient performance under Strickland, thereby meeting the
prejudice requirement as incorporated in the Martinez analysis. For a claim to be
“substantial” it must have “some merit.” 566 U.S. at 14. Although a majority of
this panel holds the Popik note was not prejudicial, Michaels’s IAC claim
nonetheless had “some merit” with regard to Strickland prejudice.
The prosecution devoted a significant part of the penalty phase to
emphasizing the Popik note as confirmation of its contention that Michaels would
remain a danger in prison were he not executed. The Popik note evidence was the
entirety of the prosecution’s rebuttal evidence during the penalty phase and so was
the last evidence the jury heard. And the impact of prejudicial evidence “cannot be
measured simply by how much air time it received at trial or how many pages it
occupies in the record. Some toxins can be deadly in small doses.” Buck v. Davis,
137 S. Ct. 759, 777 (2017). Michaels’s claim that the Popik note uniquely
46
prejudiced him because it encouraged the jury to infer that he would continue to
pose a danger to others while in custody had “some” merit.
In short, Michaels has a “substantial claim” that he was prejudiced by trial
counsel’s deficient performance under Martinez.
2. Ineffective Post-Conviction Relief (PCR) Counsel and Cause Under
Martinez
Having established a substantial claim of prejudice, Michaels must also
establish “cause” under Martinez by demonstrating that “appointed counsel in the
initial-review collateral proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland.” 566 U.S. at 14. Again, Strickland
requires a petitioner to establish that (1) “counsel’s representation fell below an
objective standard of reasonableness,” and (2) “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” 466 U.S. at 688, 694.
a. Deficient Performance
Michaels’s initial PCR attorneys’ failure to raise the Popik note IAC claim
was unconstitutionally deficient performance. As explained supra pp. 42-47,
Michaels had a substantial claim that his trial counsel’s violation of attorney-client
privilege amounted to deficient performance. Michaels’s PCR attorneys should
have so recognized. In particular, transcripts of pretrial proceedings reveal that
Michaels’s second set of trial counsel asked the trial court to unseal several
47
documents without knowing that the Popik note was among those documents. PCR
counsel should have seen this request as a violation of attorney-client privilege and
raised it as a constitutional IAC claim. Nix and United States v. Zolin, 491 U.S. 554(1989), among other cases that emphasized the importance of the attorney-client
privilege and established that “failure to adhere to reasonable professional
standards” could be a “deprivation of the Sixth Amendment right to counsel,” were
decided approximately a decade before Michaels’s counsel filed his first state
habeas petition. Nix, 475 U.S. at 171. Had PCR counsel performed adequately,
they would have recognized trial counsel’s conduct amounted to ineffective
assistance and raised the IAC claim in the first habeas petition.
Additionally, Michaels’s PCR counsel were evidently aware that his trial
counsel should not have allowed the Popik note to get into the hands of the
prosecution when they filed Michaels’s first habeas petition. The same attorneys
who represented Michaels in the initial state habeas proceeding had represented
him on direct appeal. At the time, California law required petitioners to file their
first habeas petitions several months after filing their direct appeal reply brief. See
Walker v. Martin, 562 U.S. 307, 312 n.1 (2011). On direct appeal, counsel raised
the Popik note issue as an evidentiary claim, arguing that the trial court violated the
attorney-client privilege. Yet, the same lawyers failed to raise the federal
constitutional IAC claim on postconviction review, even though, as we have
48
discussed, supra pp. 36-37, California law generally requires IAC claims to be
raised for the first time at that stage. Lopez, 42 Cal. 4th at 972. There is no
conceivable strategic reason why Michaels’s counsel did not file the Popik note
claim as a federal constitutional IAC claim on state habeas review shortly after
filing a related claim on direct appeal. In declarations submitted as part of his
second state habeas petition, Michaels’s PCR attorneys confirmed that they had
simply not spotted the issue. A failure to recognize a potentially viable IAC claim
is not a strategic decision.
b. Prejudice
Having concluded that PCR counsel’s conduct was deficient under
Strickland, we next evaluate whether that deficient conduct prejudiced Michaels.
Again, the California Supreme Court, in addition to rejecting the claim as
procedurally defaulted, summarily denied Michaels’s Popik note IAC claim on the
merits. Although that merits decision “is relevant to a determination of whether the
failure to raise IAC claims in the first post-conviction petition was prejudicial,” it
does not preclude us from excusing Michaels’s procedural default, as Apelt makes
clear. 878 F.3d at 827.
In Apelt, we evaluated whether a defaulted IAC claim could satisfy Martinez
even though the state court had rejected the claim on the merits when it was raised
in an amended petition for post-conviction relief. Id. at 826. Apelt recognized that a
49
state court’s “conclusory alternate [merits] ruling” does not “place [petitioner’s]
constitutional claim beyond even deferential review by a federal court,” if any
procedural default can be overcome through a cause and prejudice inquiry. Id. at
827.
At this stage of the inquiry, then, we must evaluate under Martinez—and so
not on deferential review, see supra p. 38—whether postconviction counsel
performed ineffectively according to Strickland, an objective standard. See
Strickland, 466 U.S. at 694-95. The question is not whether the particular PCR
court would have rendered a more favorable decision, but whether some
reasonable PCR court might have done so. See Apelt, 878 F.3d at 827. So we
determine for ourselves what a reasonable PCR court could have done had PCR
counsel properly raised the Popik note IAC claim.
Whether PCR counsel’s ineffectiveness prejudiced Michaels depends in part
on the strength of his underlying trial counsel IAC claim, Djerf, 931 F.3d at 880,
and in part on the use PCR counsel could have made of that claim had it been
properly raised in the state habeas petition. As to the first matter, we have held that
Michaels’s trial counsel IAC claim was “substantial” as an independent claim.13
Supra pp. 41-47. As to the second, whether or not PCR counsel could have
13
Notably, when we reach the merits of this claim, we hold, under AEDPA
review, that counsel’s performance was constitutionally deficient. Infra pp. 52-55.
50
demonstrated that trial counsel’s ineffective actions leading to the introduction and
discussion of the Popik note during the penalty phase was independently likely to
have influenced the jury’s death penalty verdict is not determinative of the
prejudice analysis here. Rather, because there was other, significant constitutional
error at the penalty phase—the erroneous admission of the whole of Michael’s
confession—the failure to raise the trial counsel Popik note IAC claim could be
prejudicial as likely to have undermined an otherwise viable cumulative error
claim regarding the penalty phase. See Williams v. Filson, 908 F.3d at 570.
Again, in Michaels’s first habeas petition he argued that the cumulative
effect of the constitutional errors made at his trial required reversal of his
conviction and sentence. But PCR counsel’s failure specifically to raise the Popik
note IAC claim kept the state court from considering the potential cumulative
prejudice of that note in conjunction with other errors introduced at Michaels’s
sentencing phase, and so fatally undermined any cumulative error claim.
As Michaels’s Popik note IAC claim is substantial, especially considering its
potential contribution to cumulative error, see supra pp. 41-47, the claim is strong
enough to support a conclusion that, had Michaels’s PCR counsel performed
effectively and raised the claim on initial state habeas review, there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694. We
51
therefore hold that there is a reasonable probability the PCR court would have
granted Michaels relief had his PCR counsel raised the trial counsel IAC claim.
Michaels thus satisfies the requirements of Martinez, and his procedural
default is excused. As a result, we may address the merits of Michaels’s claim that
his counsel was constitutionally deficient, as well as—on the merits—the
cumulative effect of counsel’s constitutionally deficient performance and
Michaels’s improperly admitted confession on the sentencing phase of Michaels’s
trial.
D. Disclosure of the Popik Note Was Constitutionally Deficient Performance
Under AEDPA Review
Because the California Supreme Court denied Michaels’s Popik note IAC
claim on the merits summarily, Michaels bears the burden of “showing there was
no reasonable basis for the state court to deny relief” under Strickland’s standard.
Richter, 562 U.S. at 98. Turning first to the deficient representation prong of
Strickland, we hold that there was no reasonable basis for the state court to have
concluded that Michaels’s trial counsel’s performance was constitutionally
adequate as to the disclosure of the Popik note.
McClure v. Thompson, applying AEDPA review, 323 F.3d at 1241,
determined that disclosing confidential information without justification in a
manner that falls clearly below the minimum acceptable standards of professional
conduct constitutes ineffective assistance of counsel under clearly established
52
Supreme Court law, id. at 1241-42.14 As we have explained supra pp. 41-46, both
sets of Michaels’s attorneys violated the attorney-client privilege as incorporated in
California state law. There was no plausible exception to the attorney-client
privilege or the duty of confidentiality under which Michaels’s attorneys might
have reasonably been acting in disclosing Michaels’s confidential communication.
See supra pp. 44-45. This case therefore does not present one of the “handful of
carefully defined circumstances” in which an attorney’s departure from his or her
duty of confidentiality does not amount to deficient performance. McClure, 323
F.3d at 1242-43.
That the disclosure of the private communication to the prosecution was
apparently the result of carelessness as to what was in the sealed record does not
affect our conclusion. As a component of the duty of confidentiality, California
law required attorneys “at every peril to himself or herself to preserve the secrets[]
of his or her client.” Cal. Bus. & Prof. Code § 6068(e) (1988). Michaels’s attorneys
failed to uphold this duty by disclosing Michaels’s confidential communication
without taking reasonable precautions, let alone “every peril,” to protect
Michaels’s secrets. Id.14
Although not a Supreme Court decision, McClure informs what
constitutes clearly established federal law for AEDPA purposes. Supra p. 20 n.8.
53
Chambers and Grossberg were appointed after the Popik note was sealed
and had no knowledge of the note’s contents. When moving jointly with the
prosecution to disclose previously sealed documents, Chambers stated to the trial
court: “We have a joint request to unseal certain things that were sealed. We don’t
know what they were.” There is no doubt that a competent attorney who did not
know what was in sealed documents would have investigated the contents of the
documents before agreeing to their disclosure. Grossberg and Chambers
nonetheless moved jointly with the prosecution to unseal documents, one of which
was the Popik note, providing access to both the defense and the prosecution.
The result was that the Popik note—“unquestionably a communication from
the client to the attorney [that] falls within the broad [attorney-client] privilege,”
Michaels I, 28 Cal. 4th at 537—was given to the prosecution. Chambers did ask for
certain exceptions to disclosure, including Michaels’s previous motions to
substitute counsel, but he did not ask for an exemption for the Popik note. That
decision cannot be attributed to any strategic choice. As the record makes clear,
defense counsel’s ultimate disclosure of the note to the prosecution was entirely
inadvertent.
In sum, defense counsel’s disclosure of the Popik note violated one of the
core tenets of competent representation, protecting confidential communication.
Under clearly established law and prevailing standards of representation at the
54
time, counsel’s breach of attorney-client confidentiality amounted to
constitutionally deficient performance. It was objectively unreasonable for the
California Supreme Court to conclude otherwise, assuming that it did. See Richter,
562 U.S. at 102.
VI. Other Claims 15
A. Denial of Substitute Counsel
In Claim Six, Michaels contends that the trial court violated Michaels’s
Sixth Amendment right to counsel by denying his motion to substitute another
attorney for Grossberg after an irreconcilable conflict developed between Michaels
and Grossberg.
15
Michaels raised four additional claims that pertain only to the penalty
phase. In Claim Five, Michaels contended that the government committed
prosecutorial misconduct by making several assertedly improper remarks during its
closing arguments in the penalty phase. In Claim Ten, Michaels argues generally
that the Sixth Amendment guarantees the right to effective assistance of advisory
counsel. Claims Eleven and Twelve assert specific IAC claims against Chambers
after he was appointed advisory counsel. Claim Twelve faults Chambers for his
alleged failure adequately to investigate and present certain mitigating evidence at
the penalty phase. And although Michaels asserts that Claim Eleven—alleging
Chambers was ineffective for failing to present the testimony of Christina’s
father—“requir[es] reversal of his convictions and at least his death sentence,”
Christina’s father’s testimony would have supported the defense’s theory for
Michaels’s motive for killing Clemons, but not his innocence.
The majority addresses these claims in the accompanying opinion; Judge
Berzon would not reach these additional bases for habeas relief regarding the
penalty phase, as she concludes the cumulative prejudice of Michaels’s confession
and the Popik note substantially affected the outcome of that phase.
55
The court initially appointed James Burns as lead counsel and Charles Duff
as co-counsel. Shortly after Duff was appointed, the trial court granted his request
to be relieved for personal reasons, replacing him with Mark Chambers. Michaels
then began having difficulties with attorney Burns. That deteriorating relationship
resulted in Burns asking to be relieved, a request the trial court granted.
The trial court then chose Richard Grossberg as new lead counsel, replacing
Burns. Soon after Grossberg’s arrival, Michaels became discontented with his
representation. Michaels submitted a letter to the court complaining, among other
things, that it had taken Grossberg “three months to even get the courts to finance
him to work my case, which has caused my case’s defense three months of ‘dead
time.’ . . . [T]hus, none of the specialists, investigators, etc. have even started
working my case’s defence [sic], nor have the many other aspects, which all
require financing, begun to get started.”
One month after submitting that letter, Michaels moved to remove
Grossberg as lead counsel under People v. Marsden, 465 P.2d 44 (Cal. 1970), a
request the trial court denied. The court concluded that any difficulties in
representation were caused by Michaels’s unwillingness to cooperate and that
Michaels did not show that he was receiving inadequate assistance from
Grossberg.
56
Grossberg also moved to be relieved as counsel, stating that “[Michaels]
can’t have a fair trial as long as I’m his lawyer.” Grossberg represented that his
preparation for trial had up until that point been only “ministerial” and “clerical.”
And he reported that he had not had a single “meaningful conference [with
Michaels] insofar as the facts of the case are concerned.” Chambers confirmed to
the trial court that despite good-faith attempts to improve the relationship, there
was an “irreconcilable conflict between Mr. Grossberg and Mr. Michaels.” He
explained that there were two primary points of conflict: First, Michaels objected
to Grossberg’s proposed defense strategy, which was to represent that Michaels
was in Clemons’s apartment but never entered the bedroom where she was killed.
Second, Michaels objected to the investigator Grossberg hired; the investigator
assertedly conducted only a single interview with Christina and tried to contact
only one other witness (who refused to speak to the investigator).
The trial court denied Grossberg’s motion. On February 5, 1990, Grossberg
renewed his motion to be relieved, but it was again denied.
In the last reasoned state court opinion addressing this claim, the California
Supreme Court rejected it on the grounds that (1) Michaels had failed to show how
the conflict between him and Grossberg resulted in constitutionally inadequate
assistance of counsel; and (2) Michaels had not shown that the conflict was
irreconcilable, as Michaels had caused the breakdown in the relationship and
57
refused to work to improve it. Michaels I, 28 Cal. 4th at 523. This holding was
neither an unreasonable application of clearly established Supreme Court law nor
an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
The Sixth Amendment guarantees defendants in criminal cases the right to
adequate representation. See Strickland, 466 U.S. at 686. By extension, a defendant
is also entitled to substitute counsel if an “irreconcilable conflict” between a
defendant and his counsel prevents counsel from rendering effective assistance.
Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc).
Boundaries surround this principle. The Sixth Amendment does not
guarantee the right to appointment of a particular attorney, see Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 624 (1989), or the right to a “meaningful
relationship” with that attorney. Morris v. Slappy, 461 U.S. 1, 14 (1983). These
bounding principles mean that a defendant is not entitled to substitute counsel
because of a conflict of his “own making,” Schell, 218 F.3d at 1026, or because he
refuses to cooperate with counsel “because of dislike or distrust” of counsel,
Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc). Otherwise, a
defendant could effectively overturn the appointment of any attorney by refusing to
cooperate with that attorney, intentionally delaying proceedings until he was
appointed his attorney of choice. So the dispositive question when a defendant
complains of a conflict with his attorney but the conflict is of his own making is
58
the same as in IAC cases: Did counsel provide constitutionally adequate counsel
according to the standards established in Strickland? See Plumlee, 512 F.3d at
1211.
Here, the California Supreme Court reasonably concluded that the conflict
between Michaels and his attorney was the result of Michaels’s subjective distrust
of Grossberg, and that Michaels’s actions triggered the breakdown of his
relationship with Grossberg. Michaels I, 28 Cal. 4th at 523. Michaels stated in his
motion to substitute counsel that “Grossberg has proven himself to be unreliable,
untrustworthy, and someone whom I cannot place any confidence in,” and that he
had as a result asked Grossberg not to contact him or anyone else related to the
case. Thereafter, Grossberg attempted to communicate with Michaels on several
occasions without success.
According to Chambers’s account, much of Michaels’s distrust of Grossberg
resulted from disagreements about trial tactics. Such disagreements do not
constitute a basis for an unconstitutionally irreconcilable conflict. “[A] lawyer may
properly make a tactical determination of how to run a trial even in the face of his
client’s incomprehension or even explicit disapproval.” Schell, 218 F.3d at 1026
n.8 (quoting Brookhart v. Janis, 384 U.S. 1, 8 (1966) (alteration in original)); see
also Florida v. Nixon, 543 U.S. 175, 187 (2004).
59
The state court’s other conclusion—that Grossberg rendered constitutionally
adequate assistance as it relates to the attorney-client conflict claim—was also
reasonable. Contrary to Michaels’s assertions, the record reveals that Grossberg
took numerous steps to prepare for trial. Grossberg attended the trial of Michaels’s
codefendant Darren Popik, hired a psychologist and investigator, and interviewed
several witnesses. Billing records detail the investigator’s efforts to contact and
interview several other witnesses as well as to interview Michaels. The
“[t]imesheets indicate that [Defendant’s] trial counsel investigated mitigating
evidence.”16 Pinholster, 563 U.S. at 192. On the substitution of counsel claim,
Michaels cannot overcome our “doubly” deferential review of his IAC claim under
AEDPA. Richter, 562 U.S. at 105. We deny Michaels’s habeas petition with
respect to his sixth claim for relief.
B. Ineffective Assistance of Counsel for Advising Michaels to Proceed Pro Se
In Claim Seven, Michaels takes issue with his other attorney, Chambers,
arguing that he provided ineffective assistance of counsel when he advised
Michaels to represent himself after the trial court refused to relieve Grossberg.
16
Although Grossberg himself warned the trial court that his continued
representation of Michaels would prevent Michaels from receiving a fair trial, that
warning is not dispositive. The Strickland deficient performance inquiry, here
applicable because Michaels caused the relationship breakdown, is an objective
one. See 466 U.S. at 688.
60
After the trial court denied the several motions to relieve Grossberg, it
allowed Chambers to become lead counsel, with Grossberg as the secondary
attorney. Chambers then advised Michaels to seek to represent himself pursuant to
Faretta v. California, 422 U.S. 806, 834 (1975), and he did so. 17 After an extensive
hearing, the trial court granted the Faretta motion. The court found that Michaels
was competent and that his waiver of the right to counsel was knowing, intelligent,
and voluntary. The trial court then appointed both Grossberg and Chambers as
advisory counsel.
As it turned out, during both the guilt and penalty phases, Chambers
conducted the trial proceedings. Given that circumstance, we agree with the district
court that, whether or not Chambers provided constitutionally inadequate advice
regarding the Faretta motion, Michaels has not shown that he was prejudiced by
any such advice. Before Michaels moved to proceed pro se, he had refused to
17
The government argues that the record does not show that Chambers
actually advised Michaels to proceed pro se. The California Supreme Court
“evaluates a petition ‘by asking whether, assuming the petition’s factual allegations
are true, the petitioner would be entitled to relief. If no prima facie case for relief is
stated, the court will summarily deny the petition. If, however, the court finds the
factual allegations, taken as true, establish a prima facie case for relief, the court
will issue an [order to show cause].’” In re Figueroa, 4 Cal. 5th 576, 587 (2018)
(alteration in original) (citation omitted) (quoting People v. Duvall, 9 Cal. 4th 464,
474-75 (1995) (en banc)). Because the state court denied Michaels’s argument on
the merits in a summary order, it necessarily assumed the truth of his factual
allegations. We therefore also assume that Chambers advised Michaels to proceed
pro se.
61
cooperate with Grossberg, and the trial court had allowed Chambers to become
lead counsel. Although Michaels later officially proceeded pro se, he
acknowledges that Chambers “conducted the entirety of the pretrial, trial, and
penalty proceedings,” while Grossberg remained sidelined. Nothing in the record
suggests that if he had remained formally appointed, Chambers would have
conducted proceedings any differently than he did as advisory counsel.18
Michaels makes no real attempt to show that the result would have been
more favorable to him had Chambers and Grossberg remained as appointed, rather
than advisory, counsel. Instead, he tries to circumvent his burden to prove
prejudice in two ways.
First, he argues that because Chambers’s advice tainted the Faretta decision,
there was structural error not subject to traditional Strickland prejudice analysis.
But in Harding v. Lewis, 834 F.2d 853 (9th Cir. 1987), we rejected a similar
structural error argument, holding that “[i]n [that] case, it [was] not unduly
burdensome for us to assess the effect of . . . advice [to proceed pro se] on the
outcome of [the defendant’s] trial.” Id. at 859. Here, as the advice had no practical
impact, as it turned out, on the conduct of the trial, the outcome of the trial could
not possibly have been different had Chambers been officially designated as
18
The majority’s conclusion that Michaels was not prejudiced by the advice to
proceed pro se relies on its conclusion that Chambers, acting as nominally advisory
counsel, did not render ineffective assistance. Majority Op. at 24-45.
62
counsel rather than as standby counsel. Under these circumstances, we follow
Harding and decline to presume prejudice.
Second, Michaels claims that the proper prejudice inquiry is whether he
would have proceeded pro se without Chambers’s advice, not whether the trial
would have proceeded differently had he not proceeded pro se. Citing Lafler v.
Cooper, 566 U.S. 156 (2012), Michaels analogizes to IAC claims in the plea-
bargaining context, contending that the inquiry in that context is simply “whether
the result of the pretrial proceeding would have been different.”
Michaels misreads Cooper. That case held that to show prejudice from an
attorney’s deficient advice to reject a plea offer, a defendant must establish more
than that he would have accepted the plea deal. He also must show that “there is a
reasonable probability that the plea offer would have been presented to the
court . . . , that the court would have accepted its terms, and that the conviction or
sentence, or both, under the offer’s terms would have been less severe than under
the judgment and sentence that in fact were imposed.” 566 U.S. at 164 (emphasis
added).
Thus, accepting the analogy, Michaels cannot simply show that he would not
have proceeded pro se without Chambers’s advice. He must also show that keeping
Chambers as appointed counsel would have led to a more favorable result. He
cannot do so, as Chambers fully represented Michaels at trial despite Michaels’s
63
formal pro se status. We therefore reject Michaels’s claim that Chambers rendered
ineffective assistance by advising him to proceed pro se.19
C. Trial Court’s Failure to Inquire into Michaels’s Competency, and
Counsel’s Failure to Raise Competency
In Claim Nine, Michaels contended that (1) the trial court erred in not
conducting a sua sponte competency hearing and (2) his attorneys were
constitutionally ineffective in failing to raise the competency issue.
Michaels lists a number of facts which he alleges suggests he was
incompetent: he (1) was under heavy medication at the time of trial; (2) had gone
on a hunger strike while in custody; (3) initially pleaded not guilty by reason of
insanity; (4) had previously burned some of his flesh to the bone; (5) had an
“other-than-honorable” discharge from the Marines for psychiatric reasons; (6) had
a history of childhood physical and sexual trauma; (7) was in need of
psychotherapy; and (8) had spent significant portions of his pretrial custody in
isolation and been twice taken to the jail’s medical facility on the verge of
committing suicide. Most of these facts are contained in two psychological reports
ordered by the trial court in March 1989, a year before the trial. Both reports
19
In Claim Eight, Michaels argued that his waiver of counsel was invalid
because (1) the trial court failed to inquire sufficiently into his medication usage at
his waiver hearing and (2) Michaels moved to waive counsel only because the trial
court would not replace Grossberg. This claim fails for the same reason as Claim
Seven—as a functional matter, Michaels was represented by counsel at the guilt
and penalty phases.
64
ultimately concluded that Michaels, although suffering from mental illness,
exhibited normal levels of intelligence and was fully aware of the nature of his
actions. In his state habeas petition, Michaels presented additional facts showing
that he had repeated contacts with the psychiatric unit while in custody; had been
prescribed several psychotropic drugs; hoarded these drugs; was suspected of
multiple suicide attempts; and, according to an expert evaluation, had longstanding
brain damage.
The California Supreme Court summarily rejected Michaels’s incompetency
claims on the merits. We conclude that habeas relief on these incompetency claims
is not warranted. “[T]he criminal trial of an incompetent defendant violates due
process.” Medina v. California, 505 U.S. 437, 453 (1992). To be competent to
stand trial, a defendant must have “sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding . . . [and] a rational and
factual understanding of the proceedings against him.” Cooper v. Oklahoma, 517
U.S. 348, 354 (1996) (alterations in original) (quoting Dusky v. United States, 362
U.S. 402, 402 (1960) (per curiam)). The same standard applies when evaluating
competency to waive counsel. 20 See Godinez v. Moran, 509 U.S. 389, 398 (1993).
20
Michaels’s reliance on Indiana v. Edwards, 554 U.S. 164 (2008), to argue
that the standard for competency to proceed to trial is not the same as the
competency standard for self-representation, is unavailing. Edwards held that a
state may insist upon representation for a defendant who is competent to stand trial
65
Pate v. Robinson, 383 U.S. 375 (1966), held that, where serious questions
about a defendant’s competency to stand trial have been raised or are evident, a
trial court’s failure to conduct further inquiry violates due process. Id. at 385.
“[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and any
prior medical opinion on competence to stand trial are all relevant in determining
whether further inquiry is required, but . . . even one of these factors standing alone
may, in some circumstances, be sufficient.” Drope v. Missouri, 420 U.S. 162, 180
(1975). In determining whether the failure to conduct an inquiry rises to a
constitutional violation, the panel “may consider only the evidence that was before
the trial judge.”21 McMurtrey v. Ryan, 539 F.3d 1112, 1119 (9th Cir. 2008).
Here, the California Supreme Court rejected Michaels’s competency claim
on the merits, necessarily concluding that the evidence before the trial court was
insufficient to require a sua sponte competency hearing. That conclusion was not
unreasonable under § 2254(d) of AEDPA.
As the district court concluded, many of the competency-related facts
flagged by Michaels—such as his initial plea of not guilty by reason of insanity or
but nonetheless suffers serious mental deficiencies. Id. at 178. It expressly did not
address whether states are required to provide representation to such individuals.
See id.
21
The evidence Michaels produced for his state habeas petition, is thus not
pertinent to this claim. It is, however, relevant for his competency-related IAC
claim, discussed below.
66
his complaints about jail personnel—do not suggest incompetency to stand trial.
Likewise, the psychological reports ultimately indicated that Michaels, although
troubled, was “able to consult with his lawyer with a reasonable degree of rational
understanding” and maintained a “rational” and “factual understanding of the
proceedings against him.” McMurtrey, 539 F.3d at 1119. And although this court
has recognized that the use of psychotropic medication is one factor to be
considered in evaluating competency to stand trial, see, e.g., id., the defendants in
those cases exhibited other substantial symptoms of incompetence, such as erratic
and irrational behavior during trial.
Deciding whether further inquiry into a defendant’s competence is needed
requires hard judgment calls. “There are, of course, no fixed or immutable signs
which invariably indicate the need for further inquiry to determine fitness to
proceed; the question is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated.” Drope, 420 U.S. at 180. Under
AEDPA, “evaluating whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determinations.” Yarborough,
541 U.S. at 664. Given the generality and flexibility of the competency inquiry and
the deference owed under AEDPA, the record does not establish that the California
67
Supreme Court’s rejection of Michaels’s inquiry into incompetency to stand trial
claim was unreasonable.
For similar reasons, Michaels’s counsel were not ineffective because they
did not raise the competency issue. The additional evidence submitted with
Michaels’s first state habeas petition is cognizable as to the IAC competency
claim, see, e.g., Cunningham v. Wong, 704 F.3d 1143, 1161 (9th Cir. 2013), but
does not affect our conclusion. The two doctors retained as consultants to evaluate
Michaels submitted declarations in support of Michaels’s federal habeas petition,
but those declarations did not discuss his competency to stand trial. And
Michaels’s so-called “suicide attempt” was, according to Michaels himself,
motivated by his desire to speak to an attorney, not by genuine suicidal ideation.
The California Supreme Court’s rejection of Michaels’s IAC competency claim
was not unreasonable.
D. Denial of Request for an Additional Six-Month Continuance of Trial
In Claim Thirteen, Michaels argued that the trial court’s denial of his request
for a continuance before trial on March 26, 1990, violated his due process rights.
The trial court agreed in February 1990 to continue Michaels’s trial until
April after granting his self-representation request. In the interim, the prosecution
notified Michaels that it intended to introduce certain evidence not mentioned
previously at the penalty phase—namely, the Popik note discussed above and other
68
instances of Michaels threatening violence against Popik, and being violent toward
Cristina Clemons. On March 26, Michaels requested a further six-month
continuance, maintaining that he had not been provided with access to a “pro per
cell” with law books and writing implements until February 23, that his former
investigator had inadequately prepared the case, and that he had not received
funding for further investigation until March 13.
The trial court denied the request, noting that Michaels had the benefit of
numerous motions filed by Grossberg that Michaels “may choose to adopt”; that he
was placed in a “pro per cell” sixty days before trial; and that he would have at
least ninety days before opening statements to prepare, given the likely length of
jury voir dire. The trial court also emphasized that it had already granted multiple
continuances. On direct appeal, the California Supreme Court rejected Michaels’s
claim that the denial of a continuance was improper, noting that Michaels “had
funding, an active investigator, and advisory counsel who was familiar with the
case” and that, “although much remained to be done, [Michaels] had 60 days” to
prepare for trial. Michaels I, 28 Cal. 4th at 525.
The denial of a request for a continuance may, under unusual circumstances,
result in a denial of due process. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
But “[t]he matter of continuance is traditionally within the discretion of the trial
judge, and it is not every denial of a request for more time that violates due process
69
even if the party fails to offer evidence or is compelled to defend without counsel.”
Id.; see also Morris, 461 U.S. at 11. For that reason, “[t]here are no mechanical
tests for deciding when a denial of a continuance is so arbitrary as to violate due
process. The answer must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the time the request is
denied.” Ungar, 376 U.S. at 589.
On appeal, Michaels focuses on the California Supreme Court’s failure in its
opinion to discuss the prosecution’s notices of intent to introduce additional
evidence in aggravation. Nothing in the record suggests that either the trial court or
the California Supreme Court failed to consider those notices. Michaels
specifically raised these notices in his request for a continuance, and the prosecutor
argued at the hearing that the additional evidence raised in those notices would
only require Michaels to investigate two additional witnesses. Nothing in the trial
court’s decision suggests that it failed to consider on the continuance motion the
arguments before it concerning additional evidence.
Likewise, when the California Supreme Court evaluated the issue, it
determined that there was sufficient time for Michaels to prepare for trial
notwithstanding the fact that “much remained to be done.” Michaels I, 28 Cal. 4th
at 525. The legal standard for determining whether a continuance violates due
process affords substantial discretion to a trial court. See Ungar, 376 U.S. at 589.
70
Given that broad standard, as well as the deference owed under AEDPA, the
circumstances here do not render the California Supreme Court’s decision that the
denial of the continuance was not a due process violation unreasonable. See
Yarborough, 541 U.S. at 664.
VI. Conclusion
We AFFIRM the district court’s judgment denying a writ of habeas corpus
with respect to the guilt phase. With respect to the penalty phase, the majority finds
no cumulative or other prejudice, and affirms the denial of the petition, for reasons
stated in its separate opinion; Judge Berzon dissents from that holding for the
reasons stated in her dissent.
71
FILED
OCT 18 2022
Michaels v. Davis, MOLLY C. DWYER, CLERK
No. 15-99005 U.S. COURT OF APPEALS
Bea, Circuit Judge:
This majority opinion addresses Michaels’s three remaining claims: (1)
whether the admission of Michaels’s confession and the Popik note prejudiced the
penalty phase of the trial, (2) whether the prosecutor committed misconduct during
the penalty-phase closing arguments, and (3) whether Michaels is entitled to relief
for ineffective assistance of advisory counsel. We answer each of these questions in
the negative and affirm the district court’s denial of habeas relief on all claims.
I. Penalty-Phase Prejudice
Michaels argues that he is entitled to habeas relief because the introduction of
his confession and the Popik note during the penalty phase of the trial prejudiced
him by causing the jury to render a death verdict they otherwise would not have in
the absence of this unconstitutional evidence.
Constitutional error does not entitle Michaels to habeas relief if an error was
harmless. In habeas proceedings, we apply the actual prejudice standard set forth in
Brecht v. Abrahamson, 507 U.S. 619 (1993). Under Brecht, habeas relief is available
only if the constitutional error had a “‘substantial and injurious effect or influence’”
on the verdict. Id. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)).
1
“When a federal judge in a habeas proceeding is in grave doubt about whether
a trial error of federal law had a substantial and injurious effect or influence in
determining the jury’s verdict, that error is not harmless. And, the petitioner must
win.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks
omitted). “By ‘grave doubt’ we mean that, in the judge’s mind, the matter is so
evenly balanced that he feels himself in virtual equipoise as to the harmlessness of
the error.” Id. at 435. Furthermore, these constitutional errors are not viewed in
isolation. Indeed, “the cumulative effect of multiple errors may prejudice a
defendant even if no single error in isolation is sufficient to establish prejudice.”
Williams v. Filson, 908 F.3d 546, 570 (9th Cir. 2018).
So far, the panel agrees that the introduction of Michaels’s confession during
the penalty phase of the trial infringed his right to silence, and that Chambers’s
failure to object to the introduction in evidence of the Popik note was deficient
performance by Chambers under Strickland, based on clearly established federal
law. The panel also agrees that the introduction of the confession during the guilt
phase of the trial did not prejudice Michaels because the prosecution presented
overwhelming and admissible evidence of guilt. The majority and the dissent part
ways on the sole question whether these constitutional errors prejudiced Michaels
during the penalty phase of the trial. Ultimately, because the confession and the
Popik note were cumulative of admissible evidence demonstrating the brutality of
2
the crime, Michaels’s penchant for future dangerousness, and the motive for the
murder, we are not in “grave doubt” that the error had a “substantial and injurious
effect” on the trial and therefore affirm the district court’s denial of habeas relief for
lack of prejudice. O’Neal, 513 U.S. at 436.
A. Standard of Review
Because the California Supreme Court held there was no Miranda violation
as to the introduction in evidence of Michaels’s recorded confession, it made no
determination as to whether any such error was harmless during the penalty phase,
and we review this element of Michaels’s claim de novo. See Porter v. McCollum,
558 U.S. 30, 39 (2009) (per curiam). Similarly, because the California Supreme
Court did not hold that a Miranda violation occurred, it never ruled on whether
Michaels’s confession and the Popik note had cumulative prejudicial effect and we
review this issue de novo as well. Id.B. The Confession
As discussed in the per curiam opinion, ordinarily, a defendant’s own
confession is “the most probative and damaging evidence that can be admitted
against him.” Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (citation omitted),
and an erroneously admitted confession “will seldom be harmless,” United States v.
Williams, 435 F.3d 1148, 1162 (9th Cir. 2006). But, just as we concluded above,
seldom does not mean never, and the limited use of the confession, along with the
3
sheer volume of aggravating evidence properly admitted against Michaels during the
penalty phase of the trial, rendered the admission of his confession harmless.
We note at the outset that the prosecution relied on the confession infrequently
during its closing argument. Indeed, the prosecutor detailed Michaels’s criminal
history for nearly eleven pages of his forty-page closing argument before mentioning
the confession evidence at all, which evinces its diminished importance. Indeed, this
criminal history was a particularly important aggravating factor, on which the jury
heard substantial evidence during the penalty phase which the prosecutor
summarized as follows during his closing argument:
1981, he had a gun in his sock. He went into Joseph Toy’s house,
stole a gun. He was armed and dangerous. Long Beach, 1981.
That’s one. Texas, two knives, one in each boot, 1987. Another
factor in aggravation. Texas, beating on Christina Clemons who
was drunk . . . . That’s a factor in aggravation. Oceanside,
January the 23rd, two knives, two blades under his jacket for
protection. That’s a factor in aggravation. Oceanside, 1988,
August the 30th, putting a gun to Chad Fuller’s head. That’s
aggravation. That’s a reason for the death penalty. Oceanside, the
next night, having a revolver hidden in the small of his back.
That’s aggravation. Oceanside, September the 11th, 1988,
robbing Chad Fuller, another act of violence. That’s aggravation.
This evidence of Michaels’s criminal past was entirely independent from the
confession evidence, but something upon which the jury was perfectly able to and
likely did rely, given the length of time the prosecutor discussed it during the closing
argument. The dissent argues that evidence of Michaels’s violent past does not
convincingly render the confession nonprejudicial because we have found prejudice
4
in cases with even more extreme aggravating factors. But each case the dissent cites
for this proposition is distinguishable from this case. In Wharton v. Chappell, 765
F.3d 953, 978-79 (9th Cir. 2014), where the defendant brutally murdered his
girlfriend and had prior felony convictions for rape and murder, we held that it was
the failure to introduce unique mitigating evidence that resulted in prejudice, not, as
here, the introduction of cumulative aggravating evidence of the defendant’s
capacity for violence. In Hovey v. Ayers, 458 F.3d 892, 930 (9th Cir. 2003), where
the defendant kidnapped and murdered a young girl, we found that prejudice resulted
from the defendant’s ineffective assistance of counsel in failing to turn over
mitigating evidence to the defense expert during the sentencing phase because (1)
the defendant had no history of serious violent crimes, and (2) the jury asked several
questions of the court during deliberations about the death penalty. In Douglas v.
Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003), we held, similarly to Wharton, that
it was the failure to introduce mitigating evidence that resulted in prejudice, not the
introduction of cumulative evidence in aggravation.
Even were we to accept the proposition that Michaels’s history of violence is
not as extreme as what we saw in the Wharton and Douglas cases, missing mitigation
evidence is far likelier to have an impact on a penalty-phase jury than evidence of
the defendant’s criminality that the jury has already heard repeatedly from
admissible sources. This cumulative evidence point is key; Brecht, which established
5
the harmless-error review standard we apply in these cases, held that the defendant
suffered no prejudice from the prosecutor’s repeated reference to his post-Miranda
silence because that evidence was “in effect, cumulative” of admissible evidence of
pre-Miranda silence. 507 U.S. at 639. We see the same pattern of cumulative
evidence in Michaels’s case.
The dissent argues that the confession prejudiced Michaels because it was
uniquely able to describe the murder and Michaels’s role in it in shocking and
graphic detail. But the jury heard extensive other evidence on this point. Defense
expert witness Dr. Hubbard testified that Michaels told him that “he cut [the
victim’s] throat and [the] knife broke,” after which Popik got another knife from the
kitchen and Michaels “cut her throat some more.” An acquaintance of Michaels,
Rodney Hatch, testified that, shortly after the murder, Michaels admitted to him that
he had slit a woman’s throat. People v. Michaels, 28 Cal. 4th 486, 502 (Cal. 2002).
Two other people present with Hatch, Kimberly Buckhalter and Dennis Lucas,
testified that Michaels used a gesture to suggest that he had killed a woman by
cutting her throat. Id. The jury also heard evidence that Michaels told people ahead
of time that he planned to cut the victim’s throat. The prosecutor emphasized that
Michaels’s “lying in wait” was an aggravating factor, but the jury did not have to
rely on the confession evidence to make this point. Dr. Hubbard also testified that
Michaels said he had to “kill [] time” before the murder because when he first visited
6
the victim’s apartment in the early evening, she was at work, so he returned later at
midnight.
The dissent also asserts that Michaels’s demeanor and laughter during the
confession, which the jury was able to observe by watching the video of his police
interrogation, demonstrated his lack of remorse. But, to whatever extent this is true,
the prosecution also presented to the jury other admissible and direct evidence of
Michaels’s lack of remorse. The jury heard the testimony of Cheryl Goldenberg,
Michaels’s sister. Six months after the murder, she received a letter from Michaels
while he was in prison, stating that he will “never have any regret” for what he did
to the victim. Eighteen months after the murder, Michaels told Dr. Hubbard that he
felt no remorse. Michaels also told Dr. Hubbard that, if he could do the murder over
again, he would do a “head and heart murder,” which means to shoot the victim in
the head and chest, because that would have been “cleaner, better.” Dr. Hubbard
testified that this statement illustrated a lack of remorse. And remember, Dr.
Hubbard was the defendant’s psychiatric expert witness.
Experts from both sides testified that Michaels was a psychopath. Dr. Hubbard
told the jury that “looking at [Michaels] superficially, one would see a psychopath
or sociopath.” Two prosecution experts, Dr. Murphy and Dr. Rappaport, diagnosed
Michaels as having an antisocial personality disorder, and Dr. Murphy’s report noted
that Michaels behaved in a psychopathic fashion. Both Dr. Hubbard and Dr. Murphy
7
agreed that, in general, Michaels was a person who showed no remorse for his
crimes.
In addition to the extensive evidence of Michaels’s lack of remorse, the jury
also heard overwhelming evidence from both the defense and prosecution experts,
as well as lay witnesses, that Michaels took pleasure in having a reputation as a
killer. Dr. Hubbard testified that Michaels was a “habitual liar” who “bragged” about
“his power, his destructiveness and about his evil.” Dr. Hubbard stated that Michaels
had a “clear-cut pattern” of emphasizing “what a bad guy he is to make him appear
better or more powerful in the eyes of others and feel better about himself.” Dr.
Hubbard agreed with the prosecutor’s characterization of Michaels as “a man who
feels good about himself when he is committing violent and asocial acts.” Dennis
Lucas testified that, after the murder, he saw Michaels’s “hit list,” and that Michaels
told him that there were other “jobs to be done and money involved.” Michaels, 28
Cal. 4th at 506. The record overwhelmingly shows that Michaels proudly cultivated
his reputation as a killer, even without the confession evidence.
The confession was redundant evidence for each point the prosecutor used it
to prove—Michaels’s great love of violence, his graphic descriptions of his
participation in the murder, and his lack of remorse. And although the defense did
offer some mitigating evidence, we disagree with the dissent’s conclusion that the
8
presence of such evidence made this case so close that the exclusion of the
confession would have tipped the scales in Michaels’s favor.
The dissent argues that the jury could have concluded that Michaels’s motive
for the crime was to protect Christina from Clemons’s physical and sexual abuse,
and that this was a potential mitigating circumstance. But the jury also heard
evidence that Michaels was not Christina’s protector, but another abuser. Christina
herself testified that Michaels was physically violent with her in the past and that
she was afraid of him.
The jury also heard ample evidence supporting a financial motive for the
murder. Dr. Hubbard testified that Christina used her mother’s life insurance policy
as a “tool of manipulation” to persuade Michaels to commit the murder, showing
that it was the money, and not protecting Christina, that was his true motivation.
Before the murder, Michaels told his co-defendant, Popik, that the victim had
insurance coverage of $100,000 and that the proceeds would help Michaels and
Christina start a new life. Michaels, 28 Cal. 4th at 503, 519. Goldenberg testified
that, eight months before the murder, Michaels called her asking for money. The
jury heard that Michaels wrote a letter before the murder that said he would do
“whatever his morals allowed” to provide financial backing for himself and
Christina.
9
On the evening of September 29, just three days before the murder, Michaels
asked his roommate Mark Hebert if he wanted to go to Escondido to do a “tax,”
which Hebert explained meant collecting a debt. On the night of the murder,
Michaels told his roommate Veldina Davis that he was going to Escondido to do a
“tax.” Davis also testified that Michaels made a statement about knocking off
Christina’s old lady, and that Christina replied, “then we can get the money.”
Michaels, 28 Cal. 4th at 519.
In fact, the interrogation, which the dissent claims was prejudicial, actually
supported the defense’s theory of the case and helped rebut the theory that Michaels
killed Clemons for the money; Michaels told interrogators that he killed Clemons
“so Chris[tina] would not have to go back with her mother.” When talking about
Christina’s relationship with her mother during the interrogation, Michaels told the
officers:
Her mother’s manic-depressive, and the beatings, abuse, and all
sorts of bad things, just like in my past. That’s why I don’t care
to know where my family is, most of them. Just a matter of
destroyed that little girl. And there was no way I was going to let
it happen again. It’s gone too fucking far.
The dissent also points to mitigation evidence of Michaels’s difficult
childhood and the abuse that he, his sister, and his mother suffered at the hands of
his father. But the prosecutor skillfully rebutted this point during his closing
argument:
10
The defense seems to be well, Mr. Michaels had a rough
childhood, so it’s okay that he did what he did. He needed to feel
like a big man, so it’s okay. It made him feel better to do this.
Well, lots of us have had tough childhoods. None of us are the
brutal murderers that Mr. Michaels is. Mr. Michaels’s sister,
Cher Goldenberg, apparently had a tough childhood, too, and she
turned out okay. She is a very respectable young woman. She is
hard working, she is law abiding, she is a young business woman,
she is not a murderer. Similarly, Mr. Michaels’s mother; she is
working, she cares for her family, she is a loving and attentive
murder—mother. She is not a murderer, either.
There is not a single aggravating factor that the jury could have gleaned from
Michaels’s confession evidence that was not otherwise proved by ample admissible
evidence, nor any piece of mitigation evidence that was rebutted by the confession
that would otherwise have gone unrebutted. Indeed, the confession evidence helped
support the defense’s own theory that Michaels killed Clemons to protect Christina.
We hold that Michaels was not prejudiced by the admission of the confession.
C. The Popik Note
We begin our analysis of the cumulative effect of the Popik note on the penalty
phase from a similar place, and point out that the prosecutor relied on the Popik note
to an even lesser extent than he did the confession evidence, citing it only twice
during his entire forty-page closing argument.
The dissent argues that the Popik note is prejudicial because it was not
cumulative of evidence of Michaels’s past dangerousness, but rather unique
evidence of Michaels’s potential for future dangerousness. But, as discussed above,
11
the jury heard extensive evidence of Michaels’s potential for future dangerousness,
including evidence that he had a “hit list” of future murders he wanted to commit for
money and his great love of violence generally. Dr. Murphy’s report also quoted
Michaels, while discussing the murder, as saying “I’d do it again but I’d do it
differently next time. It just didn’t work out the way it should have. Otherwise, it
would have been an H & H Killing . . . (H & H refers to heart and head). Same thing
applies to my father. If I ever find him I’ll do an H & H killing on him.” Michaels’s
own account of his future murderous intent never wavered, and the jury could
certainly have relied on evidence other than the Popik note to decide that the death
penalty was proper.
Given the limited use of the Popik note and its minimal evidentiary value at
trial, we cannot conclude that it had a prejudicial effect on the jury, even in
combination with the confession evidence. Accordingly, we reject Michaels’s claim
of cumulative error as to the admission of his confession and the Popik note.
II. Prosecutorial Misconduct
In Claim Five, Michaels contends that the prosecutor committed four species
of misconduct during the penalty-phase closing arguments: (1) accusing Michaels
of participating in devil-worship in violation of Dawson v. Delaware, 503 U.S. 159(1992), (2) making an improper “thirteenth juror” argument that Michaels himself
would have voted for the death penalty had he served as a juror in his own trial, in
12
violation of Payne v. Tennessee, 501 U.S. 808 (1991), (3) claiming that Michaels
was a contract killer, and (4) using improper name-calling and emotional appeals in
violation of Darden v. Wainwright, 477 U.S. 168 (1986). For the reasons discussed
below, we affirm the district court’s denial of habeas relief on all claims of
prosecutorial misconduct.
A. Background
During the penalty phase of the trial, the jury heard mitigation evidence that
Michaels was a member of a Presbyterian church. In response, the prosecutor
introduced documents found in Michaels’s tackle box, and referenced those
documents during closing arguments to accuse Michaels of participating in devil-
worship:
We also know that Mr. Michaels was a member of a Presbyterian
church in Big Springs, Texas. And you may consider that to be a
factor in mitigation. We also know from his tackle box and what
appears to be that pentagram and the six six six that Mr. Michaels
had interests in other types of religion, which I think we call devil
worship, and three sixes is a sign of the beast, and that is Mr.
Michaels; he is a beast.
The prosecutor went on to recount the testimony of Michael Brohammer, one
of Michaels’s childhood friends, and argued to the jury that if Michaels was a juror
in his own case, he would vote for the death penalty:
I like to think of Mr. Michaels as the 13th juror in this case
because if Mr. Michaels were voting on this case, he would vote
for the death penalty; there is no doubt about it. He believes in
the death penalty. He told Michael Brohammer when they were
13
kids that “if somebody commits a heinous crime and if they
deserve it and if that is what is to be found the punishment, there
should be no problem with that. . . . Mr. Michaels would vote for
the death penalty. He would say “that guy is scary;” he would
say “that guy is twisted, he is a psychopath, he has ruined a lot
of lives, he is dangerous, he is dangerous with a knife, with a gun,
with a pipe bomb he is a would-be mass murderer. How can we
allow anyone to live whose goal is to kill people? We can’t take
that chance.” That would be Kurt Michaels on Kurt Michaels, the
13th juror.
The prosecutor also argued that Michaels was a contract killer, stating “[t]he
defense may try to put Christina Clemons back on trial and blame it all on her. But
ask yourselves why did Christina Clemons pick Kurt Michaels to do this murder.
Because he was a professional. Because he had a great love for violence.” Borrowing
from the writings found in Michaels’s tackle box, the prosecutor continued:
Mr. Michaels is the lone dark wolf. He’s an executioner, he’s a
justice bringer, he’s a contract killer. He wants to kill a lot of
people, he’s a shotgun man. He’s a gun runner, he’s into pipe
bombs. He hires people to work as his assistants, he is a
psychopath, he brags, he bosses, he robs, he cuts, he abuses, he
bullies, he murders, and he feels good about it.
Throughout his closing argument, the prosecutor variously described
Michaels as a “monster,” a “psychopath,” a “beast,” and “evil.” After showing the
jury a portion of Michaels’s taped confession, the prosecutor argued, “[t]his is a man
who expects mercy, this is a man who showed no mercy to anybody.” The prosecutor
described how the victim must have felt upon waking up to intruders in her home:
“A primal fear we all have, the idea of waking up and having somebody in our
14
bedroom who might hurt us, a stranger. Only it’s two men; one of them is a stranger,
Popik. The other is a beast, Michaels.”
Michaels did not object to or move to strike the devil-worship accusations,
“thirteenth juror” argument, contract-killer rhetoric, or name-calling and emotional
appeals at trial. On direct appeal, Michaels argued that the prosecutor committed
misconduct by calling Michaels a “beast” and accusing him of devil worship, but the
California Supreme Court declined to rule on those issues because they were waived
for lack of objection at trial. Michaels, 28 Cal. 4th at 540. Michaels did not argue
prosecutorial misconduct in his first habeas petition. The California Supreme Court
rejected the prosecutorial misconduct claim in Michaels’s second habeas petition
summarily on the merits and as procedurally barred. The district court acknowledged
that the California Supreme Court held that the prosecutorial misconduct claim was
procedurally defaulted but denied habeas relief on the merits. We take the same
approach here. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)
(“Procedural bar issues are not infrequently more complex than the merits issues
presented by the appeal, so it may well make sense in some instances to proceed to
the merits if the result will be the same.”).
B. Standard of Review
15
The California Supreme Court rejected Michaels’s prosecutorial misconduct
claim as procedurally barred and also rejected it on the merits. Michaels’s claim is
therefore subject only to deferential review under AEDPA. 28 U.S.C. § 2254(d)(1).
C. Discussion
To decide if improper comments give rise to a constitutional violation, “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.’” Darden,
477 U.S. at 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). This standard is difficult to meet under AEDPA, requiring Michaels to
“establish that the [state] Supreme Court’s rejection of the Darden prosecutorial
misconduct claim ‘was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Parker v. Matthews, 567 U.S. 37, 47 (2012) (quoting Harrington v.
Richter, 562 U.S. 86, 103 (2011)).
1. Devil-Worship Comments
Turning first to the accusations of devil-worship, Michaels’s claim of
prosecutorial misconduct relies on a misreading of Dawson. In that case, a jury
convicted the defendant of first-degree murder after he escaped from prison and
robbed and killed a homeowner. Dawson, 503 U.S. at 161. During the penalty phase
of the trial, the jury heard evidence that the defendant was a member of the Aryan
16
Brotherhood. Id. at 162. The jury recommended the death penalty, which the trial
court was required to impose under Delaware law. Id. at 163. The Supreme Court
held that the First and Fourteenth Amendments prohibit a state from “employing
evidence of a defendant’s abstract beliefs at a sentencing hearing when those beliefs
have no bearing on the issue being tried.” Id. at 168. Michaels argues that his case is
analogous to Dawson because the devil-worship evidence was evidence of an
abstract belief that had no bearing on penalty-phase issues. We disagree.
Dawson tells us that “just as the defendant has the right to introduce any sort
of relevant mitigating evidence, the State is entitled to rebut that evidence with proof
of its own.” Id. at 167. Here, the jury heard mitigating evidence from Michaels’s
pastor that Michaels was a member of a Presbyterian church. The evidence of devil-
worship was not “employed simply because the jury would find these beliefs morally
reprehensible,” id., but to rebut Michaels’s mitigation evidence of his Presbyterian
church membership. And indeed, that is precisely how the prosecutor framed the
devil-worship evidence, juxtaposing it with Michaels’s mitigating evidence: “We
also know that Mr. Michaels was a member of a Presbyterian church in Big Springs,
Texas. And you may consider that to be a factor in mitigation. We also know from
his tackle box . . . that Mr. Michaels had interests in other types of religion, which I
think we call devil worship . . . .” The prosecutor did not commit misconduct by
arguing Michaels’s interest in devil-worship to the jury based on his own tackle box
17
writings and for the proper purpose of rebutting the mitigating evidence of his
membership in the Big Springs, Texas Presbyterian Church.
2. The “Thirteenth Juror” Argument
Michaels’s prosecutorial misconduct claim based on the “thirteenth juror”
argument similarly fails. In Payne, the Supreme Court overruled a prior decision,
Booth v. Maryland, 482 U.S. 496 (1987), to the extent that Booth held “that evidence
and argument relating to the victim and the impact of the victim’s death on the
victim’s family are inadmissible at a capital sentencing hearing.” 501 U.S. at 830,
830 n.2. However, the Court left intact Booth’s ban on the “admission of a victim’s
family members’ characterizations and opinions about the crime, the defendant, and
the appropriate sentence” as violative of the Eighth Amendment. Id. at 830 n.2.
Michaels argues that evidence of his belief in the death penalty violated Booth’s ban
on “opinions about the crime,” and that the prosecutor’s argument, that Michaels
would have voted for the death penalty in his own case, was not a reasonable
inference from the testimony the jury heard from Brohammer. We reject each
argument.
First, Booth is distinguishable from Michaels’s case. There, the Supreme
Court held that the “introduction of a [victim impact statement] at the sentencing
phase of a capital murder trial violates the Eighth Amendment.” Booth, 482 U.S. at
509. In one victim impact statement, a family member stated that “such a person” as
18
the defendant could “‘[n]ever be rehabilitated.’” Id. at 500. But in Michaels’s case,
the jury did not hear a victim impact statement, but evidence of the defendant’s own
opinion. To accept Michaels’s argument would thus require an extension of Booth
and “‘if a habeas court must extend a rationale before it can apply to the facts at
hand,’ then by definition the rationale was not ‘clearly established at the time of the
state-court decision.’” White v. Woodall, 572 U.S. 415, 426 (2014) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). Given the deferential standard
required by AEDPA and the limited holding of Booth, we cannot hold that clearly
established federal law prohibited the admission of the defendant’s own views of the
suitability of the death penalty during the sentencing phase of the trial.
Second, prosecutors are allowed “to strike hard blows based on the evidence
presented and all reasonable inferences therefrom.” Ceja v. Stewart, 97 F.3d 1246,
1253 (9th Cir. 1996) (quoting United States v. Baker, 10 F.3d 1374, 1415 (9th Cir.
1993)). Here, the prosecutor’s “thirteenth juror” argument was rooted in testimony
that the jury heard at trial. Brohammer testified that Michaels’s opinion of the death
penalty was that “if somebody commits a heinous crime, that if they deserve it, and
if that is what is found to be the punishment, then there should be no problem with
it.” Although Michaels disagrees with what the prosecutor said, the prosecutor did
not unreasonably infer from the testimony that, having been found guilty of a serious
crime, Michaels would have voted for the death penalty in his own case. It is also a
19
stretch to say that the prosecutor was making unfair factual inferences from
Brohammer’s testimony. As it goes without saying that Michaels would not be
allowed to serve as a juror in his own case, it is clear that the point was purely
rhetorical—not factual.
3. The “Contract Killer” Argument
Michaels also faults the prosecutor for describing Michaels as a
“professional” and a “contract killer.” During the penalty phase of the trial, the
prosecutor, over Michaels’s objection, offered for admission into evidence a piece
of paper found on Michaels during a prior arrest that the prosecutor claimed was a
“hit list.” The piece of paper had the words “hit list” written on it repeatedly, along
with several names. The court allowed the document to be admitted into evidence
for the limited purpose of showing Michaels’s perception of himself as a hit man
and “that he had a street reputation that he wanted to protect,” and not for the purpose
of showing that he had actually committed other murders. Michaels argues that when
the prosecutor described Michaels as a “professional” and a “contract killer” during
his closing argument, he breached his representation to the court and used the
evidence for an improper purpose.
The government argues in response that Michaels waived his portrayal as a
contract-killer as an issue on appeal by failing to argue it before the district court.
See United States v. Robertson, 52 F.3d 789, 791 (9thCir. 1994) (“Issues not
20
presented to the district court cannot generally be raised for the first time on
appeal.”). It is true that Michaels’s habeas petition did not allege, in the section on
prosecutorial misconduct, that the prosecutor wrongfully accused Michaels of being
a contract killer. However, in another section of his habeas petition, in which
Michaels faults Chambers for failing to object to comments made by the prosecutor
during the penalty-phase closing arguments, Michaels argues that “during closing
arguments, the prosecutor argued that Mr. Michaels was a professional killer and a
contract killer. The prosecutor knew that this was not true. Such argument
constituted serious misconduct, and Chambers did not object.”
We agree with Michaels that this language and argument was sufficient to
preserve the issue for appeal. However, this does not change the outcome of
Michaels’s case, as we do not agree that the prosecutor crossed into the proscribed
territory of arguing that Michaels had committed other murders. Indeed, at no point
did the prosecutor argue that Michaels was responsible for or intended to commit
the murder of any of the people who appeared on the hit list. Instead, the prosecutor’s
arguments were made in the context of quoted material from Michaels’s own
writings, including other fanciful perceptions of himself as a “lone dark wolf,” an
“executioner,” “the bearer of the sword,” and “the justice bringer.” The prosecutor
was not literally stating that Michaels was any of these things, but rather limited his
argument to what he promised the judge—evidence of Michaels’s self-perception.
21
Furthermore, even if the prosecutor’s argument was ambiguous, though the
“consistent and repeated misrepresentation of a dramatic exhibit in evidence may
profoundly impress a jury . . . . [i]solated passages of a prosecutor’s argument, billed
in advance to the jury as a matter of opinion not of evidence, do not reach the same
proportions. . . . [A] court should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning or that a jury, sitting through
lengthy exhortation, will draw that meaning from the plethora of less damaging
interpretations.” Donnelly, 416 U.S. at 646-47. Here, the jury was instructed that
counsel’s arguments were not evidence, and the references to Michaels as a contract
killer were minimal, appearing on only two pages of a nearly forty-page closing
argument. These isolated comments do not constitute the “sort of egregious
misconduct . . . [that] amount[s] to a denial of constitutional due process.” Id. at 647-
48.
4. Name-Calling and Emotional Appeals
Michaels’s fourth and final claim of prosecutorial misconduct rests on the
prosecutor’s use of name-calling and emotional appeals during the closing argument.
In Darden, 477 U.S. at 179-82, the Supreme Court condemned the prosecutor’s
closing argument because: (1) he called the defendant an animal, (2) he placed blame
for the murder on the department of corrections for allowing the defendant a furlough
from the prison on the weekend of the murder, and (3) he argued that the death
22
penalty would be the only way to prevent a future crime. However, placed in the
context of the entire trial, including the judge’s instructions to the jury that attorneys’
arguments are not evidence, and the overwhelming evidence of guilt against the
defendant, the Court held that these comments did not constitute a denial of due
process. Id. at 181-83. In Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002),
the court held that the prosecutor’s description of the attack from the point of view
of the victim was misconduct. But the argument did not render the trial
fundamentally unfair because of the jury instructions and because, “if he had
delivered exactly the same speech in the third person, it would have been proper.”
Id. (internal quotation marks omitted).
Michaels’s case bears some resemblance to both Darden and Fields. Like
Darden’s description of the defendant as an animal, here, the prosecutor called
Michaels a “beast,” a “monster,” a “psychopath,” and “evil.” As in Fields, the
prosecutor here also violated the “golden rule” by asking the jurors to step into the
mindset of the victim: “A primal fear we all have, the idea of waking up and having
somebody in our bedroom who might hurt us, a stranger. Only it’s two men; one of
them is a stranger, Popik. The other is a beast, Michaels.” But like in Darden and
Fields, we must similarly conclude that Michaels’s trial was not rendered
fundamentally unfair by the prosecutor’s comments.
23
We are required to evaluate the prosecutor’s comments within the context of
the entire trial. Donnelly, 416 U.S. at 439. As discussed at length above, the jurors
heard extensive evidence throughout the trial of Michaels’s brutality. As above
noted, of the forty-page closing argument, the prosecutor described Michaels’s
criminal history for nearly eleven pages, while the improper emotional appeal took
place on only one page. As in Fields, the prosecutor’s fault in using the collective
“we” while describing the events of the murder was minimal, given that the rest of
the prosecutor’s account of the attack was properly in the third person. The jurors
heard testimony about Michaels’s lack of regret for the murder and possible
psychopathy, and the trial judge instructed the jurors that the attorneys’ arguments
were not evidence. Given the context of the entire trial and the deferential standard
of review required under AEDPA, we do not agree that the prosecutor’s limited
improper comments constituted a due process violation.
III. Ineffective Assistance of Advisory Counsel
In Claim Ten, Michaels argues that he is entitled to effective assistance of
advisory counsel. In Claim Eleven, Michaels argues that Chambers was ineffective
at both the guilt and penalty phases because Chambers failed to call as a witness
Christina’s father, who would have corroborated Christina’s testimony about how
her mother physically abused her. In Claim Twelve, Michaels argues that Chambers
was ineffective at the penalty phase because Chambers failed adequately to
24
investigate and present evidence: (1) that Michaels’s mother was bipolar, (2) that
Michaels’s mother physically and emotionally abused him throughout his childhood,
and (3) that Michaels’s methamphetamine use was affected by his long-term brain
damage, difficult background, and mental illness. Because we hold that Chambers
did not render ineffective counsel, we need not decide the threshold question
whether Michaels had a right to effective assistance of nominally advisory counsel
where, as here, counsel actually conducted the entire trial, including the penalty
phase, and made all pertinent decisions.
A. Background
Michaels’s trial began in April 1990. Before trial, in January 1990, Michaels
filed two motions to remove his appointed attorney, Grossberg. Grossberg also
moved to be relieved from the case, claiming that Michaels “can’t have a fair trial
as long as I’m his lawyer.” The court denied each motion, and Michaels brought a
new Faretta motion to represent himself. On February 5, 1990, Grossberg renewed
his motion to be relieved as counsel, citing a “complete breakdown” in the attorney-
client relationship. The court denied the motion but agreed to have Chambers,
Michaels’s other appointed attorney, serve as lead counsel in place of Grossberg.
During this hearing, the court asked Michaels whether he wanted to pursue his earlier
motion to represent himself under Faretta v. California, 422 U.S. 806 (1975).
Michaels stated that he wanted to represent himself. The court granted the Faretta
25
motion after it found Michaels was competent and the waiver of the right to counsel
knowing, intelligent, and voluntary. The court then appointed Chambers and
Grossberg as advisory counsel.
During the guilt and penalty phases, Chambers conducted the entire defense
case, including voir dire, examination of witnesses, opening statements, and final
argument. In a post-conviction declaration, Chambers stated that he “made all of the
decisions regarding the defense,” including the strategy, scope of investigation,
witnesses to call, and specific questions to ask the witnesses.
During the guilt phase, the defense argued that Michaels killed Clemons to
protect Christina. In support of this theory, the defense relied heavily on Christina’s
testimony about the severe physical and sexual abuse Christina’s mother inflicted
upon her. The prosecution argued that the murder was primarily financially
motivated, so Christina and Michaels could get Clemons’s life insurance proceeds.
The jury found Michaels guilty.
During the penalty phase, the defense offered mitigating evidence that
Michaels himself was abused by his father, Lynn Miller. Lynn had a drinking
problem and became violent towards his family when he drank. When Michaels was
three years old, he and his mother witnessed Lynn sexually abuse his six-year-old
sister. This incident caused Michaels’s mother to take the children and leave Lynn.
26
Lynn continued to harass the family by tracking them down when they moved,
finding the kids on the street, and calling their home to make threats.
When Michaels was thirteen, his mother was raped. A few years later, his
sister was raped as well. According to his mother and sister, Michaels became
extremely angry upon learning about these incidents and felt helpless. Michaels’s
mother later began working for a rape hotline and often took calls from home.
Michaels was proud of his mother’s work and showed concern for the wellbeing of
the victims. Michaels’s sister testified, “If [Michaels] was involved in this murder,
it was because Christin[a] came into his life and that was just one more woman that
he could not help. I feel like the helplessness that he felt all his life had just primed
him, and when Christin[a] walked into his life, he wasn’t going to let it happen to
somebody else that he loved.”
The evidence also showed that Michaels’s mother, Barbara Wilson, was
generally supportive and kind. Michaels’s sister, Cheryl, testified that Barbara was
warm, open, and caring, and was always there when her children needed her. Cheryl
testified that Barbara “wanted to make sure that we always felt safe and secure in
our home and that nobody could take that away from us.” Based on the evidence
presented by the defense, the prosecution argued that, despite Michaels’s difficult
early childhood, Michaels grew up in a relatively comfortable environment.
27
In its final argument, the prosecution undermined the defense’s mitigation
strategy, commenting that “the defense now at the penalty phase seems to be
[Clemons] really got what she deserved, and, gee, the poor guy, Mr. Michaels, he
had a rough childhood, he was a victim of playing too much dungeons and dragons.”
The prosecution also drew attention to the evidence portraying Michaels’s family
background in a positive light: “I think . . . that we could say . . . he’s got a very nice
family. His mother appeared to be a very wonderful person; so did his sister. His
stepfather appeared to be a good man. They all tried to help Mr. Michaels out, they
all tried to present a positive influence on him, and Mr. Michaels turned his back on
that support and on that family.” After three days of deliberation, the jury returned a
death sentence.
During habeas proceedings, Michaels presented additional evidence regarding
his childhood and family background and argued that this evidence should have been
introduced at trial. Notably, his sister Cheryl told quite a different story about her
and Michaels’s childhood than she had at trial: rather than “warm” and “always
there” for her children, Cheryl stated that their mother was both physically and
emotionally abusive toward Michaels throughout Michaels’s childhood. Michaels’s
mother, Barbara Wilson, had a long history of mental illness and was eventually
diagnosed with bipolar disorder. In a post-conviction declaration, mental health
expert, Dr. Stotland, stated that Michaels had long-term brain damage, which
28
affected him for his entire life. According to Michaels, advisory counsel Chambers’s
failure to investigate and present evidence of his difficult upbringing provided the
jury with an inaccurate depiction of Michaels’s life.
Michaels did not raise these issues regarding ineffective assistance by
Chambers on direct appeal. Michaels, 28 Cal. 4th at 526–27, 539–40. In his first and
second state habeas petitions, the California Supreme Court denied Michaels’s
ineffective assistance of counsel claims summarily on the merits. The district court
also denied Michaels’s ineffective assistance of advisory counsel claims.
B. Standard of Review
The California Supreme Court rejected Michaels’s ineffective assistance of
advisory counsel claims on the merits. These claims are therefore subject to
deferential review under AEDPA. Section 2254(d)(1).
C. Discussion
To state a claim for ineffective assistance of counsel, a convicted defendant
must show: (1) that counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). For the first prong, the court asks “whether counsel’s assistance was
reasonable considering all the circumstances.” Id. at 688. For the second prong, the
court asks “whether there is a reasonable probability that, absent the errors, the
29
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695.
Because Michaels’s ineffective assistance of advisory counsel claims are
subject to deferential review under AEDPA, the proper inquiry is whether the
California Supreme Court unreasonably applied the Strickland standard. Harrington
v. Richter, 562 U.S. 86, 101 (2011). Where, as here, the state court rejects a habeas
petitioner’s claims summarily rather than in a reasoned opinion, the petitioner must
show that there was “no reasonable basis for the state court to deny relief.” Id. at 98.
The court “must determine what arguments or theories . . . could have supported the
state court’s decision . . . [and] whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with” prior decisions of
the Supreme Court. Id. at 102. Put another way, “[t]he question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
at 105.
1. Testimony of Christina’s Father
Michaels argues that Chambers should have introduced the testimony of
Christina’s father, Wendell Clemons, to corroborate Christina’s testimony that her
mother abused her. Christina was tried in juvenile court in November and December
1988 for her role in JoAnn Clemons’s death. Wendell testified at Christina’s juvenile
court trial that JoAnn Clemons inflicted violence on Christina, and Michaels argues
30
that Chambers was deficient for failing to elicit similar testimony at his own trial.
We hold that the California Supreme Court could have reasonably determined that
the failure to introduce such evidence did not constitute deficient performance.
We first address Michaels’s argument that the omission of Wendell’s
testimony was per se deficient because Chambers admitted that it was not a tactical
decision, and he simply did not think to introduce the evidence. Michaels relies on
Doe v. Ayers, 782 F.3d 425, 444–45 (9th Cir. 2015) for the proposition that an
attorney’s performance is necessarily deficient when he admits that a particular
action or inaction was not a strategic decision. Michaels’s reliance on Doe is flawed
because he misstates the holding in Doe, the claims in Doe were not subject to
AEDPA, and the facts of Doe are distinguishable from those of the present case. Id.
at 429, 444–46.
In Doe, the petitioner sought habeas relief for ineffective assistance of counsel
at his criminal trial. Id. at 429. In preparation for the penalty phase, defense counsel
did not obtain readily available mitigating evidence, conducted only perfunctory
interviews with the defendant, did not inquire about the defendant’s history of
trauma, did not follow up with the retained psychological expert, and did not prepare
the penalty-phase witnesses for trial. Id. at 435–43. Defense counsel conceded that
this conduct was the result of inattention rather than strategy, stating, “[I]t’s hard for
me to say what my [penalty-phase] strategy was.” Id. at 444. The court found the
31
attorney’s conduct deficient based on overwhelming evidence of poor performance,
including the attorney’s admission that he had no strategy. Id. at 445. The opinion
states, “The presumption that the defense counsel’s conduct falls within the wide
range of reasonable professional assistance is inapposite . . . when we know for sure
that defense counsel had no strategy, because he has unequivocally said as much.”
Id. at 444.
Doe addressed a situation where the defense attorney had no penalty-phase
strategy. It did not hold, as Michaels suggests, that an attorney must consider every
possible item of mitigating evidence and make an affirmative decision whether to
include each item. Such a holding would be contrary to the objective nature of the
Strickland standard. Strickland, 466 U.S. at 688; Richter, 562 U.S. at 109 (explaining
that counsel need not “confirm every aspect of the strategic basis for [his] actions”
because “Strickland . . . calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind”).
Doe is also distinguishable from the present case. Here, the record shows that
Chambers prepared for trial by setting the scope of investigation, interviewing
members of Michaels’s family, preparing witnesses to testify, retaining multiple
mental health experts, making decisions as to which arguments to make and not
make, and requesting continuance to allow for further preparation. Chambers’s
behavior is therefore not analogous to that of the attorney in Doe, who lacked a
32
penalty-phase strategy altogether. Accordingly, the fact that Chambers admitted that
he did not consider calling Wendell as a witness does not render the omission per se
deficient.
We next address whether there is a reasonable basis to find that the omission
of Wendell’s testimony was not deficient. At Christina’s juvenile court trial for her
role in Clemons’s death, Wendell testified that Clemons would beat Christina until
Clemons was tired. Wendell testified,
When [Christina] didn’t cry, [JoAnn] just kept going and going and going.
Later on . . . she would stop beating her with something and just start
pummeling her with her fist, beating her about the head and shoulders with
her fist . . . . She would beat her on the floor. Then she would kick her. And
then she would beat her some more. And then she would pick up something
[else] to beat her until she just got too tired to beat her any more.
When Clemons was too tired to beat Christina, she had Wendell beat her. He
complied because he was afraid of Clemons, who threatened to kill him and regularly
attacked him with knives and other objects.
Wendell’s testimony is undoubtedly powerful. Christina, however, provided
her own powerful testimony at Michaels’s trial. During the guilt phase, Christina
testified to the details of abuse she had relayed to Michaels. She told Michaels that
her mother physically and sexually abused her. She said that her mother would
become violent and then inappropriately touch her. Christina also told Michaels that
she was at one point removed from her home by child protective services because of
her mother’s abuse. She told him about a camping trip during which her mother hit
33
her with a cast iron pot that had been heating on a fire grate, then later performed
sexual acts on Christina, including penetration and oral copulation. Christina also
told Michaels about a particularly bad fight in which Clemons choked Christina so
hard that Christina thought she would die and then severely beat her. Christina
testified to all these details at trial, and the trial judge instructed the jury to limit the
testimony to the impact it would have on Michaels and not consider the truth of the
underlying allegations of abuse.
Michaels argues that corroboration of this testimony was crucial because
Christina’s credibility was undermined by the prosecution and her testimony was
limited to its effect on Michaels. But whether the abuse actually occurred was not at
issue in the case, and corroboration was relevant only to the extent that it could help
the jury determine if Michaels’s belief that Christina was abused was sincere. United
States v. James, 169 F.3d 1210 (9th Cir. 1999) (en banc).1 Given that Christina
testified in front of the jury as to the stories she told Michaels, the jury had its own
1
Michaels cites James for the proposition that corroborating evidence is “crucial.”
In James, the issue was whether court records corroborating violent stories the
victim told the defendant were relevant to the defendant’s self-defense claim, and
therefore admissible. The court found such evidence relevant for the purposes of
(1) proving that the defendant did not make up the stories and (2) proving that the
defendant heard the stories from a man who had actually committed the acts
described, and was therefore more likely to believe his descriptions. In the present
case, there is no question that Christina actually told Michaels stories about her
abuse. The only relevance of the corroborating evidence is that it would have
tended to prove Christina was convincing when she described her abuse to
Michaels, and thus that Michaels’s belief that the abuse happened was genuine.
34
opportunity to evaluate the persuasiveness of these stories. It was therefore less
important that Christina’s stories be corroborated than in cases involving stories told
by persons unavailable at trial. See, e.g., id. at 1214 (holding that evidence
corroborating violent stories told to the defendant by the deceased victim was
relevant to the defendant’s self-defense claim because it tended to prove that the
defendant’s fear of the victim was genuine). Also, other than general attacks on
Christina’s credibility, there was no evidence tending to prove that Christina’s
mother did not abuse her. Corroboration was thus not particularly important.
In support of his argument that corroboration was crucial, Michaels asserts
that the trial judge commented that the abuse evidence did not make Michaels’s
beliefs reasonable. Michaels refers to the trial judge’s statement that, “Although the
defendant felt he could protect Christina Clemons by murdering her mother . . . the
court does not find his reaction by homicide a reasonable belief, despite feelings that
he himself felt justified.” According to Michaels, this statement asserts that the court
did not find his belief that Christina was abused to be reasonable, rendering
corroborating evidence necessary. Michaels distorts the trial judge’s statement. The
plain meaning of the statement is that Michaels’s belief that murder was justified
was unreasonable. Nothing in the trial court’s language implies that Michaels did
not have a genuine belief that Christina was the subject of abuse.
35
Moreover, the jury did hear evidence tending to prove that Michaels’s belief
that Christina was abused was reasonable. Dr. Hubbard testified that he himself
believed Christina had been sexually abused. He based this opinion on information
told to him by Christina, information documented by doctors, social workers, and
psychologists, and observations from his clinical psychiatric assessment of
Christina. For example, Christina preferred bondage and abuse during sex, which,
according to Dr. Hubbard, is typical of individuals who have been sexually abused.
Thus, although the jury did not hear from anyone who witnessed the abuse of
Christina first-hand, it was presented with evidence tending to corroborate her
history.
Michaels also argues that corroboration was crucial because the prosecution
undermined Christina’s credibility. Again, the issue is not whether Christina was
telling the truth when she testified at trial to the abuse inflicted upon her by her
mother, or whether she was telling the truth when she told Michaels about this abuse.
The issue is whether Christina actually told Michaels that she was abused by her
mother, and whether Michaels believed her. The fact that Christina told Michaels
about her mother’s abusive behavior and the fact that Michaels believed her were
corroborated by Dr. Hubbard, who testified that Michaels saw Christina as “a woman
. . . who had been extensively abused.” Thus, to the extent that it would prove
36
Christina told Michaels that she was abused, Wendell’s testimony would be
cumulative.
Although additional corroborating evidence may have strengthened a
determination that Michaels’s belief in the abuse was genuine, and in turn
strengthened a determination that Michaels’s purported motivation to kill Clemons
to protect Christina was genuine, the absence of such evidence did not deprive the
jury from considering this theory of mitigation—Christina’s own testimony was
adequate to the task. Moreover, that Wendell did not testify at Christina’s trial to any
sexual abuse by Christina’s mother further reduces the importance of Wendell’s
corroborative testimony because a central theme of Michaels’s defense was his self-
image as a protector of women against sexual abuse specifically. See infra Section
III.C.3.
Given the limited probative value of Wendell’s testimony, the California
Supreme Court could have reasonably concluded that the failure to produce such
testimony was not “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690; Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir.
1998) (holding that it was within reason for counsel not to pursue additional
testimony that would have been largely cumulative of the testimony offered at trial).
2. Bipolar Disorder
37
Michaels argues that Chambers was deficient for failing to present evidence
of Michaels’s mother Barbara’s bipolar disorder, because Barbara’s mental illness
could have been discovered by a proper investigation. This argument is unsupported
by the record. First, Michaels has not shown that Barbara’s bipolar disorder had been
diagnosed at the time of trial. In support of his claim, he offers only a 1998
declaration of mitigation specialist Ellen Rogers, who was engaged post-trial for the
habeas proceedings, declaring that Barbara believed she suffered from bipolar
disorder for many years but was diagnosed only “recently.” Remember, Michaels’s
trial took place eight years earlier, in April 1990. Rather than establish that Barbara’s
bipolar disorder was known at the time of trial, Ellen Rogers’s declaration suggests
the contrary.
Second, Michaels has not shown that Chambers was on notice that Barbara
might have had bipolar disorder or a similar condition. In her 1998 declaration,
Rogers states that Barbara began to take anti-depressants as early as 1981, was
hospitalized for depression in 1982, and attempted suicide at age 19. The declaration
notes that Barbara did not receive medical attention following the suicide attempt,
so it is unclear whether this attempt was documented at the time of trial. Regardless,
these facts do not tend to prove the fact that Barbara’s bipolar disorder was known
at the time of trial or that Chambers was on notice that further investigation into
Barbara’s mental health would have uncovered additional mental illnesses. Rather,
38
these facts are consistent with a finding that Barbara was merely depressed.
Accordingly, the California Supreme Court could have reasonably found that
Chambers was not deficient in failing to inquire further into Barbara’s mental health.
See Babbitt at 1174 (holding that counsel was not ineffective for failing to uncover
a family mental illness where, after a reasonable investigation, nothing had put
counsel on notice of the illness).
3. Childhood Abuse
At trial, Michaels’s sister Cheryl testified that their mother Barbara was “a
very warm, open and caring mom” who “was there whenever we needed her” and
“forfeited a lot of her own, quality personal time to dedicate to us and make sure that
we didn’t want for anything.” Barbara testified that the abuse inflicted by her
husband upon Michaels in his early childhood ended when Michaels was three years
old. She denied doing anything more than spanking Michaels and testified that
anything Michaels said to the contrary was false.
During habeas proceedings, Cheryl changed her story and declared that
Barbara “did far more than spank” her children. Cheryl declared that Barbara
frequently “lost control” and “beat [her children] until she was tired,” once breaking
a hairbrush on Michaels. In addition, Barbara emotionally abused Michaels by
blaming all her problems on him, telling him she wished she never had him,
comparing him to his abusive father, and threatening to leave him forever. Cheryl
39
declared that she did not tell the investigators or Chambers about her mother’s
abusive behavior prior to the trial because they did not ask her many questions about
Barbara and because she felt a need to protect her mother.
Michaels argues that Chambers’s failure to introduce evidence of Barbara’s
abusive behavior was deficient because Chambers admitted that he did “not consider
trying to show that [Michaels’s] mother physically and psychologically abused her
son because [he] did not have enough background on her and . . . did not have enough
time to develop such background.” According to Michaels, Chambers admitted in
this statement that his failure was not a tactical decision, so the court must not apply
a presumption of reasonableness.2
Michaels mischaracterizes the facts. Chambers did not assert that he had no
strategy for the penalty phase or that he had no strategy for investigating Michaels’s
background. Rather, Chambers declared that he specifically did not pursue an
investigation of Barbara’s parenting because he did not have the time to develop the
necessary background. Part of an attorney’s job is to allocate time and resources in
preparing a defense, and limitations on time and resources must be considered when
evaluating the reasonableness of an attorney’s conduct. Strickland, 466 U.S. at 691
2
Michaels once again relies on a misstatement of the holding in Doe to argue that
the court should not apply a presumption of reasonableness to Chambers’s conduct
because of a claim that Chambers had no strategy at all for the penalty phase. This
argument fails for the reasons stated in Section III.C.1.
40
(“[S]trategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations
on investigation.”).
Chambers had limited time to develop a strategy after the trial court denied
the defense’s request for a six-month continuance. Given the limitations on his
defense, Chambers had to decide which investigations would be most useful. One of
Chambers’s considerations was his impression that Barbara did not want to disclose
her past, an impression corroborated by daughter Cheryl’s testimony at trial of
Barbara’s caring attention to Michaels. In contrast, Chambers was able to elicit
ample testimony from both Barbara and Cheryl as to the sexual abuse suffered by
the women in Michaels’s life and the helplessness Michaels felt for being unable to
protect them, leading to his protective feeling toward Christina. We agree with the
district court that focusing investigative resources on these fertile areas of mitigating
evidence was a sound strategy. See Richter, 562 U.S. at 107 (“An attorney can avoid
activities that appear ‘distractive from more important duties.’” (quoting Bobby v.
VanHook, 558 U.S. 4, 11 (2009) (per curiam))). Taking into account all
circumstances, as Strickland requires, it would not be unreasonable to conclude that
Chambers’s decision not to investigate further into Barbara’s abusive conduct was
reasonable.
4. Drug Use and Brain Damage
41
Michaels faults Chambers for failing effectively to tie evidence of Michaels’s
drug abuse to his background and offense conduct. “Had [Chambers] conducted a
proper investigation,” Michaels argues, “[he] could have presented a much more
compelling mitigation presentation that Mr. Michaels had struggled with long-term
and significant brain damage for his entire life, likely caused by the beatings he
suffered as a young child, and he was genetically predisposed to mental illness and
addiction, and began to self-medicate with methamphetamine as a means of coping
with the trauma of his life.”
Much of this argument fails for the same reasons discussed in Section III.C.3.
Namely, these assertions rest on the notion that Chambers should have conducted a
more extensive investigation into Michaels’s background, but there is a reasonable
argument that Chambers’s investigation was not deficient given the time limitations
on the defense. Michaels asserts that Chambers should have investigated the abuse
Michaels suffered during his childhood, the mental illnesses that ran in Michaels’s
family, and the history of addiction in Michaels’s family. Similarly, Michaels argues
that Chambers should have retrieved certain social and medical records for the
purpose of sufficiently informing the mental health experts. But Michaels has not
shown that Chambers’s decisions regarding how to allocate investigative resources
were unreasonable under the circumstances.
42
We reiterate that Chambers did not fail to conduct any investigation into or
present any evidence of Michaels’s childhood. Michaels’s mother and sister both
testified to the abuse and harassment inflicted on the family by Michaels’s father,
the financial difficulties the family faced during Michaels’s childhood, as well as
Barbara’s weight problem and its effect on the family. Multiple witnesses testified
that Michaels was a lonely child who had trouble making friends. Dr. Hubbard
testified that Michaels was depressed during his childhood and tried to commit
suicide at age eleven, which, in his opinion, showed that Michaels was “emotionally
disturbed” from having grown up in a “disastrous family setting.”
Chambers also investigated and presented evidence of Michaels’s mental
health and drug use, retaining multiple mental health experts at the time of trial,
including psychologist Dr. Stotland to perform testing and evaluation, and
psychiatrist Dr. Hubbard to analyze the results and testify at the trial’s penalty phase.
Dr. Hubbard testified that Michaels suffered from chemical dependency, major
depressive disorder, latent schizophrenia, a mixed personality disorder, and mild
brain dysfunction. He explained his basis for these diagnoses and the effects of each
disorder on Michaels’s functioning. Dr. Hubbard also described Michaels’s
methamphetamine use and explained that methamphetamine can particularly distort
reality for individuals with underlying schizophrenic thought disorders. He did not
43
believe Michaels was firmly in touch with reality on the night of the murder because
Michaels had taken a large amount of methamphetamine.
Chambers stated during habeas proceedings that he would have done more
preparation had time permitted, including conducting a more thorough investigation
of Michaels’s family history, interviewing employees from the Department of Social
Services, obtaining Michaels’s school records, and contacting witnesses who knew
Michaels during his time in the military. But it is clear from the record that Chambers
had to decide which theories of mitigation were relatively worth pursuing given the
restrictions on time: Michaels as protector of Christina, or Michaels as victim of his
family. Michaels cannot overcome the strong presumption that Chambers’s
decisions under these circumstances were reasonable.
Michaels also faults Chambers for failing to present evidence that Michaels
suffered from long-term brain damage. Dr. Hubbard testified during the penalty
phase that Michaels suffered from brain damage that likely occurred after high
school. Dr. Stotland, who conducted testing on Michaels prior to trial, declared
during habeas proceedings that Michaels suffered from long-term brain damage and
that, had he been called to testify at trial, he would have presented this fact to the
jury. Michaels argues that, by inaccurately presenting his brain damage as short-
term, rather than long-term, Chambers allowed the prosecution to depict Michaels
44
as having lived a relatively normal life before his drug use, rather than having turned
to drugs as a means of coping with his difficult personal history.
Michaels does not argue that Chambers should have had Dr. Stotland testify
instead of Dr. Hubbard, nor does he argue that Chambers should have had both
experts testify. It is unclear how Michaels thinks Chambers should have introduced
evidence that Michaels suffered from long-term brain damage. If Michaels means to
argue that Chambers should have had Dr. Hubbard testify and offered separate
evidence of Michaels’s long-term brain damage, he fails to show that Chambers’s
decision not to undergo this course of action was deficient. In addition to testifying
that Michaels had short-term brain damage, Dr. Hubbard testified about Michaels’s
mental impairments, dependent personality, childhood trauma, and relationship with
Christina, as well as the impact of these conditions on Michaels’s behavior. Offering
evidence that directly conflicted with one of Dr. Hubbard’s expert opinions would
have tended to discredit Dr. Hubbard’s expertise and cast doubt on the valuable
portions of his testimony. The California Supreme Court therefore reasonably could
have found that a decision not to introduce such conflicting evidence was not
deficient performance.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s denial of
habeas relief on all claims.
45
FILED
Michaels v. Davis, OCT 18 2022
No. 15-99005 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BERZON, Circuit Judge, dissenting:
I concur in the per curiam opinion. I dissent from Judge Bea’s opinion for
himself and Judge Gould (“Majority Opinion”) with respect to the holding that the
admission of Michaels’s confession and the Popik note did not cumulatively
prejudice the penalty phase of the trial.1 I would hold the introduction of
Michaels’s complete improperly Mirandized confession and of the Popik note
cumulatively prejudiced Michaels at the penalty phase of his trial, and would
therefore grant the petition as to the penalty phase.
Although the Majority Opinion correctly considers the issue of cumulative
prejudice under Brecht without AEDPA deference, it fails to appreciate the
possible influence of the improperly admitted evidence on the jury’s death
sentence. The Majority Opinion finds no prejudice, cumulative or otherwise, as to
the penalty phase. As the Majority Opinion summarizes the record, the improperly
admitted evidence was infrequently invoked and cumulative of other properly
admitted evidence. Both characterizations are contrary to the record. Further, the
1
Because I would grant Michaels’s petition with respect to the penalty phase for
the reasons explained in this dissent, I do not express any opinion regarding the
other issues the Majority Opinion addresses.
1
Majority Opinion fails meaningfully to consider the improper evidence in relation
to the substantial evidence in mitigation.
The Majority Opinion’s errors are critical because Brecht’s harmless error
inquiry “is not a matter of pure logic, but of sensitive judgment based on the case
presented to the jury by the prosecution and the defense.” United States v.
Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003). In contrast to the guilt phase, in
the penalty phase, “the jury’s role is relatively unconstrained in deciding whether
to opt for mercy and life rather than the most extreme punishment of death.”
Walker v. Martel, 709 F.3d 925, 945 (9th Cir. 2013) (Gould, J., concurring in part).
Here, the jury was instructed during the penalty phase, “you are free to assign
whatever moral or sympathetic value you deem appropriate to each and all of the
various factors you are permitted to consider.” The jury was further instructed:
“[T]o return a judgment of death, each of you must be persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.”
Given the broad discretion accorded to the jury “to show mercy and spare
life based on any consideration in [the defendant’s] background or character,” we
“must remind ourselves . . . that the possibility of mercy, like the possibility of
gentle rain, is not predictable with certainty.” Mayfield v. Woodford, 270 F.3d 915,
934, 938 (9th Cir. 2001) (Gould, J., concurring). In this case, the jury deliberated
2
for more than three days before returning a death sentence. For the reasons
explained below, I harbor grave doubt that the harmless error standard is met here.
I cannot conclude that there is no reasonable probability that a single juror might
have spared Michaels had the confession and the note been excluded from
evidence at the penalty phase.
A.
When considering the cumulative prejudice of the confession and the Popik
note, the Majority Opinion omits any meaningful discussion of the evidence
presented in mitigation. See Majority Op. at 3–11. But, as I shall explain, to assess
properly the degree of harm the prosecution’s errors caused, we need to include in
the analysis the weight of the mitigation evidence. I therefore begin by explaining
why the substantial mitigation evidence presented during the penalty phase
enhanced the likely prejudicial impact of the improperly admitted evidence at the
penalty phase.
Here, the government’s case for the death penalty was up against substantial
mitigation evidence. Errors favoring the government’s case were therefore more
likely to be prejudicial. Given the strength of the mitigation evidence, relatively
modest subtractions from the government’s aggravation evidence, or additions to
the mitigation evidence via enhancing the credibility of the mitigation witnesses,
could have swung at least one juror’s conclusion regarding whether “the
3
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.”
The record shows that Michaels provided the jury with extensive mitigation
evidence. For example: Michaels presented evidence that he served in the military.
A medical expert testified that Michaels suffered from major depressive disorder
and mixed personality disorder with depressive, dependent, antisocial, and
borderline features. People v. Michaels (Michaels I), 28 Cal. 4th 486, 507 (2002).
The jury further learned that Michaels had mild brain dysfunction, probably from
use of methamphetamine or from an injury in an auto accident. Id. at 507. As the
Supreme Court has recognized, both kinds of mitigation evidence—military
service and mental health issues—can be influential with a penalty phase jury. See,
e.g., Porter v. McCollum, 558 U.S. 30, 42–44 (2009).
The defense’s main argument in mitigation was that Michaels understood
himself as a protector, particularly of victims of sexual assault, and that this
perception of responsibility for the welfare of such victims influenced his decision
to commit the murder. In support, the defense presented evidence of traumatic
experiences in Michaels’s childhood, which, it was argued, both lessened his moral
culpability and led to his self-image as a protector of abused women.
Both Michaels’s sister, Cheryl, and his mother, Barbara, testified that his
father was a violent alcoholic who beat Michaels and his mother. Michaels I, 28
4
Cal. 4th at 506. As a child, Michael witnessed his father sexually molest his six-
year-old sister. After his parents separated, Michaels’s father continued to harass
the family; the family moved frequently to avoid him. In one instance, Michaels’s
father tried to run over Michaels and his sister with a car, and then attempted to
kidnap them. At eleven, Michaels attempted suicide. At thirteen, he found out that
his mother had been raped. A year later, he learned that his sister also had been
raped. These events devastated Michaels because, according to his sister and
mother, he considered it his responsibility to protect them. Id. at 506–07.
Defense counsel connected this trauma and shame to Michaels’s desire to
protect his girlfriend, Christina Clemons, from her mother. Christina was the
defense’s only witness in the guilt phase. She described in detail how her mother
had physically and sexually abused her from an early age. Id. at 504. Christina
testified that this abuse had continued, that her mother had assaulted her on two
overnight visits that occurred shortly before the murder, and that she had told
Michaels about those incidents. Id.
In support of the theory that Michaels’s childhood trauma and his
girlfriend’s situation lessened Michaels’s moral culpability, defense witness Dr.
Hubbard, a psychiatrist, testified that, in his professional opinion, “the sexual abuse
of Christina Clemons was the key motivating factor in . . . [the] murder of JoAnn
Clemons,” not the potential insurance money to be gained. Additionally, Dr.
5
Hubbard diagnosed Michaels with major depressive disorder, latent schizophrenia,
and mixed personality disorder. On the mitigation evidence Michaels presented,
the jury could have concluded that Michaels’s motive for carrying out the murder
was ending Clemons’s physical and sexual abuse of Christina.
Of the mitigating evidence presented to the jury, the Majority Opinion
acknowledges only this last “potential[ly] mitigating” circumstance—the
possibility “that Michaels’s motive for the crime was to protect Christina from
Clemons’s physical and sexual abuse.” Majority Op. at 9. Addressing this
possibility, the Majority Opinion simply notes, “the jury also heard evidence,”
including from Christina’s testimony, “that Michaels was not Christina’s protector,
but another abuser.” Id. This observation has no bearing on the mitigating motive
for Michaels’s crime. It is entirely consistent that Michaels could have been violent
toward Christina—at least once, in her telling, in self defense, when she went
toward Michaels with a knife—and motivated to take action to protect her from
violence by other people.
B.
Strong as the mitigation case was, it was weaker than it would have been had
the improperly admitted portions of the confession and the Popik note not been
used to cross-examine mitigation witnesses. Additionally, the improper evidence
played a prominent role during the government’s presentation of evidence, and in
6
its closing argument. The impact on the jury of both uses of the improperly
admitted evidence was likely significant.
1. During Presentation of Evidence
The Majority Opinion omits entirely the prosecutor’s many references to the
confession and the note during the presentation of evidence in the penalty phase.
Early on, the prosecution played the entire unedited confession for the jury; only a
portion had been played during the guilt phase. The prosecution consistently used
the confession and the note both to undermine the credibility of witnesses Michaels
offered in mitigation and to bolster its negative portrayal of Michaels during its
own presentation of aggravation evidence.2
(i) Cross-examination during the mitigation case: When the defense called
Michaels’s sister, Cheryl Goldenberg, to testify on his behalf, the prosecutor used
the confession on cross-examination to undermine the credibility of her mitigation.
Q: How do you feel about him joking about raping a woman that he
murdered?
A: I don’t believe that he joked about raping anybody.
Q: You haven’t heard the tape, have you?
2
It is error for the prosecution to use confession statements obtained in violation of
Miranda to impeach the credibility of any defense witness other than the
defendant. See James v. Illinois, 493 U.S. 307, 313–14 (1990). Using a confession
to impeach the defendant’s credibility, moreover, is only permissible when the
defendant, or a witness relaying his hearsay, has first opened the door by making
“statements that directly contradict the suppressed” confession. Id. at 314; see also
United States v. Rosales-Aguilar, 818 F.3d 965, 970 (9th Cir. 2016). Here,
Michaels did not testify, so use of the confession on cross-examination was error.
See James, 493 U.S. at 320.
7
A: No.
After Goldenberg indicated that she didn’t know whether Michaels committed the
murder, the prosecutor also asked, “Are you aware that [Michaels] has confessed
to the murder?” The prosecutor also used the Popik note while cross-examining
Goldenberg. The prosecutor asked her on cross-examination, “Are you aware your
brother in that note . . . threatened to hurt Popik during the preliminary
examination?”
After Michaels’s mother testified and offered mitigating evidence, the
prosecutor similarly sought to undermine her credibility on cross-examination by
invoking the confession:
Q: Are you aware that he joked all the time about raping the woman that he
murdered?
A: No. Not that he joked all the time about raping anybody.
Q: He told the police that he joked about it and that he always joked about it,
raping a woman he murdered.
The prosecutor also mentioned the confession while cross-examining Steven
Waltzman, although defense counsel’s objection was sustained.
Q: He confessed to cutting a woman’s throat after waiting outsider of her
apartment for three hours for her to go to sleep. How do you feel about
him knowing that he has done those things?
The prosecutor similarly cross-examined Rev. Flynn Long Jr., Michaels’s
pastor who testified to offer mitigating evidence:
Q: And it is your belief, based on all of that experience, that Mr. Michaels is
not a violent man?
8
A: Yes.
Q: Do you continue to hold that belief knowing that Mr. Michaels confessed
to waiting outside a woman’s apartment so she could go to sleep so he
could cut her throat?
Mr. Chambers: Argumentative.
The Court: Overruled.
A: I hadn’t heard that until you just told me.
Mr. Brodrick: Okay, now that I told you that, is he a violent man or not?
During a later part of the same cross-examination, the prosecutor referenced
the confession again:
Q: Did anyone tell you that Mr. Michaels, when discussing what he had
done to the police, described cutting this woman’s throat and laughed
about it?
A: No.
The prosecution also asked Dr. Bruce Hubbard, Michaels’s psychiatrist,
whether his diagnosis of Michaels was “consistent with him laughing on the tape
when he described the murder?”
(ii) Government’s aggravation evidence: The trial court had originally
refused to admit the Popik note during the penalty phase, and permitted the
prosecution to introduce it only to rebut the evidence put on in mitigation that
Michaels was not a violent person. As the prosecutor explained to the trial court,
the defense “put on a host of witnesses to say that the defendant is not violent, they
put a minister on to say that, even the last witness said he is not going to be violent
in the future. They put on a psychiatrist to say that he is a follower and not a
9
leader. They put on a stepfather to say that he is not a bully. I am entitled to rebut
each and every one of those pieces of evidence.” The court agreed.
As a result, the entire focus of the prosecution’s rebuttal testimony—offered
by Bailiff Steven Lazarus, Court Reporter Elaine Cohen, and Michaels’s former
attorney Charles Duff—was the Popik note. The prosecutor was able to use the
note to elicit damaging testimony about Duff’s view as to Michaels’s potential
dangerousness.
A: … I just knew that I didn’t want to be the only person that knew the
contents of that note if something went wrong in the courtroom.
Q: Why was that?
A: Well, I would have felt responsible.
Q: Responsible for what?
Q: For not telling the proper people, the judge or the bailiff or something
that there is a possibility that something could happen.
Q: Possibility of violence?
A: Correct?
A: Yeah.
As this testimony about the Popik note was “among the last words the jurors
heard before they were sent to deliberate,” the note likely had a heightened
prejudicial effect. Zapata v. Vasquez, 788 F.3d 1106, 1122–23 (9th Cir. 2015).
2. During Argument
The majority notes that the confession had “diminished importance” in the
penalty phase because the prosecutor relied on it “infrequently during its closing
argument.” Majority Op. at 4. Counting the number of times improperly admitted
evidence was mentioned in closing is not alone a useful way to measure its likely
10
impact. Rather, the question under Brecht is the likely impact of such references on
the jury verdict, which could be the product of the language used in referring to the
improper evidence, its placement in the argument sequence, or its inherent
persuasive value, not simply how often it was mentioned. Brecht v. Abrahamson,
507 U.S. 619, 637–38 (1993).
Here, the prosecutor emphasized the confession as extremely significant,
stating, “probably the tape is one of the most horrible and aggravated parts of the
case.” The prosecutor also referenced a specific portion of the confession as
evidence that Michaels was a particularly dangerous man: “Here he is describing a
man beating a woman black and blue and his assessment of it is, ‘I will give him
that much, he went ballistic.’” Confessions have a “profound impact on the jury”
such that jurors may be unable “to put them out of mind even if told to do so.”
Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States,
391 U.S. 123, 139–40)). When the jury is not so instructed, and the prosecution
presents and emphasizes the confession during closing argument, a confession is
especially likely to “ha[ve] a substantial and injurious effect or influence on the
jury.” Garcia v. Long, 808 F.3d 771, 783 (9th Cir. 2015).
Further, the prosecutor in closing argument repeatedly used material that
came directly from Michaels’s confession, without mentioning the confession
itself, in describing the aggravating nature of the crime. For example, the
11
prosecutor stated, “This is a man who rips a lady’s throat and then laughs about it
and tells us that it is justice”—an account based on Michaels’s confession. The
prosecutor went on, “This is . . . a . . . man who dripped blood on JoAnn Clemons
as she laid beneath him. Cut jug to jug. He feels no remorse. All he can do is laugh
about it”—again referencing, though not explicitly mentioning, the confession.
Regarding the Popik note, the Majority Opinion characterizes it as having
“minimal evidentiary value” and being of “limited use” during the trial. But when
the prosecutor mentioned the Popik note in closing argument, he said that Duff,
who testified about the note, was “perhaps my favorite witness,” and that Michaels
“is a man who is so dangerous that a mere note is a call for immediate action.”
C.
Nor was the evidence improperly admitted in the penalty-phase merely
cumulative of other evidence.
1. The Confession
The Majority Opinion asserts that Michaels’s “confession was redundant
evidence for each point the prosecutor used it to prove,” Majority Op. at 8, and
further, that the confession actually “helped support the defense’s own theory” of
Michaels’s motive, id. at 11. This assessment ignores relevant case law on the
staying power of a confession in the minds of jurors, see supra p. 11, and also
misstates the record on the nature of the other evidence before the jury.
12
Again, a primary reason why the improperly admitted evidence cannot be
considered cumulative of other properly admitted evidence is that “[a] confession
is like no other evidence.” Fulminante, 499 U.S. at 296. “[T]he defendant’s own
confession is probably the most probative and damaging evidence that can be
admitted against him.” Id. (internal citation omitted).
The especially damaging nature of confession evidence is directly relevant
to the Brecht harmless error standard. That standard, again, focuses on whether the
error “has substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 623 (emphasis added) (quoting Kotteakos v. United
States, 328 U.S. 750, 766 (1946)). Kotteakos specified that “the question is . . . not
were [the jurors] right in their judgment, regardless of the error or its effect upon
the verdict. It is rather what effect the error had or reasonably may be taken to have
had upon the jury’s decision.” 328 U.S. at 764. Justice Stevens’s concurrence in
Brecht, which provided the majority opinion’s fifth vote, emphasized this language
in Kotteakos, noting, “[t]he habeas court cannot ask only whether it thinks the
petitioner would have been convicted even if the constitutional error had not taken
place. . . . [Kotteakos requires the court to] decide that ‘the error did not influence
the jury,’ and that ‘the judgment was not substantially swayed by the error.’”
Brecht, 507 U.S. at 642 (Stevens, J., concurring) (quoting Kotteakos, 328 U.S. at764–65).
13
Further, “[w]here a trial court commits an evidentiary error, the error is not
necessarily rendered harmless by the fact there was other, cumulative evidence
properly admitted.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (internal
quotation marks and citation omitted). In a “close case, erroneously admitted
evidence—even if cumulative of other evidence—can tip the scales against the
defendant.” Id. That concern—that the very cumulation may be what tipped the
jury—is particularly apt in this case. Here, the improperly admitted evidence
included a confession to the police, and the jury decision at issue is the death
penalty, a decision as to which the jury has wide sway to exercise its moral
convictions, with only the most general legal standards as a guide.
The Majority Opinion suggests that even though the confession provided
evidence of the facts underlying the aggravating factors of lying in wait and
murder for financial gain, the confession was cumulative, or duplicative, of other
testimony to the same effect, rendering the introduction of the confession harmless
error. See, e.g., Majority Op. at 2–3, 6, 8-9. But, to borrow the standard from the
related circumstance in which a juror introduces extraneous evidence into jury
deliberations, “[t]o be truly considered cumulative, there must be an extremely
close relationship between the extrinsic evidence and the evidence actually
admitted.” Eslaminia v. White, 136 F.3d 1234, 1239 (9th Cir. 1998) (emphasis
added). For example, Hughes v. Borg, 898 F.2d 695 (9th Cir.1990), deemed an
14
unadmitted police report cumulative “because one witness’ testimony was an
‘almost word for word verbatim’ recital of the information in the police report.’”
Eslaminia, 136 F.3d at 1239 (citing Hughes, 898 F.2d at 701).
Here, there is no such close similarity. Michaels’s confession was
significantly more detailed and damaging than the assertedly duplicative testimony
cited.
i. The confession was not merely cumulative of other
evidence ostensibly showing that Michaels lay in wait.
The Majority Opinion cites a single exchange between the prosecutor and
Dr. Hubbard during the penalty phase as cumulative of Michaels’s statements in
his confession showing that he waited for JoAnn Clemons to go to sleep before
entering her apartment. See Majority Op. at 6-7. This is the entirety of the
referenced exchange:
Q: What did he tell you about the murder itself?
A: The murder itself. I have that he went to the apartment and JoAnn was at
work. Went back about 5 o’clock. Something about a wall and killed
time. And he comes back at 12:00 midnight.”
By contrast, Michaels’s confession, provides extensive detail about his preparation
for the crime:
Q: So that’s the only reason you waited, because you wanted to ensure you
had a ride.
A: No, we wanted her asleep.
Q: Why did you want her asleep?
A: A little less noisy.
[. . .]
15
Q: What happened right after you got inside the door [to the apartment]?
[. . .]
A: Pointed the door out. I looked to the bedroom [. . .] Pointed it. Put certain
things down on the couch that would make noise that were on my person;
a wallet with a chain on it . . . all kinds of other shit. Went to the
bedroom, and everything fucking broke loose.
[. . .]
Q: You didn’t turn the light on or anything?
A: Uh uh. The whole point was not to wake her.
This portion of Michaels’s confession, in the prosecutor’s words (from the guilt
phase), “tell[s] us that the very time of the murder, he wanted the ambush to be in
effect. He wanted to attack that woman even as she slept. . . . The whole point of
this elaborate and evil and treacherous murder was to strike at a time when JoAnn
Clemons couldn’t even resist.” Comparing these two pieces of evidence side by
side reveals that Michaels’s confession is far more than a mere duplication of Dr.
Hubbard’s sparse testimony that Michaels “[w]ent back about 5 o’clock.
Something about a wall and killed time.”
ii. The confession was not merely cumulative of other
evidence ostensibly showing Michaels had a financial
motive.
The Majority Opinion cites multiple exchanges regarding Michaels’s
financial motive as cumulative of Michaels’s confession. The jury had already
found a financial motive as a special circumstance during the guilt phase. But
during the penalty phase the jury had the opportunity to consider the specific facts
underlying that special circumstance again, and, critically, to weigh those facts
16
against the key mitigating evidence presented by the defense—that there was
another motive as well, protecting Christina from her abusive mother.
First, the majority mischaracterizes Dr. Hubbard’s testimony, stating that his
testimony “show[ed] it was the money, and not protecting Christina, that was his
true motivation.” Majority Op. at 9. But Dr. Hubbard did not endorse this theory,
as shown by this exchange on cross-examination:
Q: … Did you consider the statement by Christina Clemons that ‘I suggested
to Kurt Michaels that my mother might have life insurance as to give him
motivation to kill her. She had told me once that since I was in a
treatment, that I was her beneficiary again and who to contact at Pepper
Tree Nursery to help me.’ Did you consider that statement?
A: I did.
Q: So money was part of the dynamics in the relationship of Christina
Clemons and Mr. Michaels regarding the murder, was it not?
A: I don’t see that as part of the dynamics, I see that as another tool of
manipulation that Christina Clemons was using to get Mr. Michaels to do
the murder.
What followed was a lengthy exchange in which Dr. Hubbard emphasized, “[i]n
my opinion the intensity of the psychological issues involved far outweighs that of
a monetary factor in this case.” Dr. Hubbard also stated that while insurance “may
be a contributing factor,” his assessment of Michaels’s “becoming motivated to do
the murder relates primarily to [Michaels’s] need to protect and shelter Christina.”
Dr. Hubbard’s testimony thus provided context for the financial motive the
jury had earlier found, reaffirming the defense’s mitigation theory without
disputing that there was some financial motive. Michaels’s financial motive,
17
according to Dr. Hubbard, was at most a “contributing factor,” subordinate to
Michaels’s desire to help and protect Christina. This piece of evidence, considered
as a whole, was not cumulative of Michaels’s damaging confession. It was
mitigating.
The Majority Opinion also points to the fact that the jury heard that
“Michaels wrote a letter before the murder that said he would do ‘whatever his
morals allowed’ to provide financial backing for himself and Christina.” Majority
Op. at 9. The Opinion, however, points only to the prosecutor’s question on this
topic. Dr. Hubbard responded that he had “not read any letter like that.”
Q: Do you know that Mr. Michaels had stated in a letter to a gentleman by
the name of ‘Mr. F’ that he would do whatever his morals allowed him to
provide a financial backing for himself and Christina Clemons?
A: I did not read any letter like that.
A prosecutor’s question is not, of course, evidence, so it cannot be considered
cumulative of Michaels’s confession during the penalty phase.
The Majority Opinion finally cites the fact that another witness testified
during the guilt phase “that Michaels made a statement about knocking off
Christina’s old lady, and that Christina replied, ‘then we can get the money.’”
Majority Op. at 10 (quoting Michaels I, 28 Cal. 4th at 519). This testimony, which
does go to the financial gain issue, is the only piece of percipient witness evidence
overlapping with Michaels’s confession on the financial motive. But the force of
that testimony was dubious; standing alone, it may well have been rejected by the
18
jury. The witness admitted the statements she relayed were from “overhear[ing]”
the “tail end of the conversation” between Michaels and Christina, and she said she
“didn’t believe the conversation.”
By contrast, the portion of Michaels’s confession about financial motivation
was detailed. His confession included the exact dollar number—$100,000—he told
Popik he would give him to induce him to participate in the crime: “I told him [the
insurance policy]’d help give Chris[tina] and I get a start.” Michaels admitted
money was a “sideline benefit” of the crime. And when the detective offered,
“Because if [JoAnn Clemons] had insurance, that would provide Christina with
some money to . . . ,” Michaels volunteered, “To do good.” On the financial gain
issue, Michaels’s confession was more detailed than any other evidence properly
admitted during the penalty phase.
2. The Popik Note
The Majority Opinion spends very little time on the impact of the Popik note
on the jury, but suggests the note should also be considered cumulative and so
lacking in impact. Majority Op. at 11-12. I must disagree.
The note was the prosecution’s only evidence on rebuttal, and the last
evidence presented during the penalty phase. “The presentation of improper
material at the end of trial magnifies its prejudicial effect because it is freshest in
the mind of the jury when it retires to deliberate.” Zapata, 788 F.3d at 1122–23
19
(internal brackets, quotation, and citation omitted). The Popik note, moreover, was
admitted only to counter the mitigation evidence that Michaels was not normally a
violent person, which was important evidence during the penalty phase.
With regard to the note, the Majority Opinion asserts that the jury “heard
extensive evidence of Michaels’s potential for future dangerousness, including
evidence that he had a ‘hit list’ of future murders he wanted to commit.” Majority
Op. at 12. But the prosecution explicitly did not introduce the so-called “hit list” to
establish Michaels’s “potential for future dangerousness,” nor was it permitted to
do so. The district court explained that if the prosecution had sought to introduce
the list as evidence that “[Michaels] [wa]s going to actually kill people” that
purpose “would cause [the court] to exclude it.” The list was admitted only to show
Michaels’s “motive to establish a reputation as a contract killer,” not that he
intended to kill anyone. People v. Michaels, 28 Cal. 4th 486, 534 (2002) (emphasis
added). The list is therefore not cumulative of the Popik note as evidence of
Michaels’s actual propensity for violence.
In sum, the primary reasons why the improperly admitted evidence cannot
be considered cumulative of other properly admitted evidence are first, “[a]
confession is like no other evidence,” Fulminante, 499 U.S. at 296, and second, the
Popik note, used to highlight the argument that Michaels was extremely dangerous,
was the only subject of the prosecution’s rebuttal evidence, the last testimony the
20
jury heard. See Zapata, 788 F.3d at 1122–23. Further, neither the confession nor
the note was simply redundant of other testimony; the confession was considerably
more detailed, and the note went to current, actual propensity for violence, not past
violence or reputational puffery.
D. Conclusion
Given the substantial evidence in mitigation and the fact that the jury
deliberated on the penalty for more than three days, it is my firm view that there is
a real probability a single juror might have spared Michaels’s life were it not that:
the prosecutor played Michaels’s entire unconstitutionally obtained confession
about the circumstances of the crime at the start of the penalty phase; the
prosecution described the confession in closing as “one of the most horrible and
aggravated parts of the case”; the prosecution devoted its rebuttal evidence, the last
evidence heard by the jury, to the Popik note; the prosecution described, in closing,
Michaels’s former attorney who testified about the note, as “probably my favorite
witness”; and the prosecution used both the confession and the note consistently to
undermine the evidence Michaels presented in mitigation.
The prosecution introduced evidence of prior violent acts, but Michaels had
never been convicted of a felony. Defense counsel argued in closing, “Michaels is
not the worst of the worst” and did not deserve the “ultimate penalty.” In my view,
at least one juror may well have so concluded but for the improperly introduced
21
evidence used at the trial. We have found prejudice resulting from constitutional
errors in cases with far worse aggravating factors. 3 As, I am convinced, the
prejudicial impact at the penalty phase of the improperly Mirandized confession
statements and the Popik note, combined, more than meets the Brecht standard, I
would reverse the death penalty verdict.
3
See, e.g., Wharton v. Chappell, 765 F.3d 953, 959, 960–61, 978–79 (defendant
bludgeoned his girlfriend with a hammer, stuffed her in a barrel in his kitchen for
days, and had several prior felony convictions, including the murder of a professor
and the forcible rape of a sixty-one-year-old woman at knifepoint); Hovey v. Ayers,
458 F.3d 892, 898, 930 (9th Cir. 2006) (defendant kidnapped and killed an eight-
year old girl and also had kidnapped another young girl on a separate occasion);
Douglas v. Woodford, 316 F.3d 1079, 1083–84, 1091 (defendant sexually abused
and then murdered two teenage girls and had a prior history of sexually abusing
young girls). Douglas, Wharton, and Hovey all found that the defendant
established prejudice resulting from constitutionally ineffective assistance of
counsel under the standard announced in Strickland v. Washington, 466 U.S. 668(1984). The Supreme Court has suggested that the Strickland prejudice standard
imposes a higher burden on the defendant than the Brecht harmlessness standard.
See Kyles v. Whitley, 514 U.S. 419, 436 (1995); United States v. Dominguez
Benitez, 542 U.S. 74, 86 (2004) (Scalia, J., concurring in the judgment).
22