Stenson v. Lambert ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAROLD J. STENSON,  No. 05-99011
Petitioner-Appellant,
v.  D.C. No.
CV-01-00252-MJP
JOHN LAMBERT,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
September 14, 2006—Seattle, Washington
Filed September 24, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Andrew J. Kleinfeld and Carlos T. Bea, Circuit Judges.
Opinion by Chief Judge Schroeder
13017
STENSON v. LAMBERT 13021
COUNSEL
Robert H. Bombiner, AFPD, Seattle, Washington, for the
petitioner-appellant.
Sheryl Gordon McCloud, Law Offices of Sheryl Gordon
McCloud, Seattle, Washington, for the petitioner-appellant.
Rob McKenna, Attorney General of the State of Washington,
John J. Samson, Assistant Attorney General, Criminal Justice
Division, Olympia, Washington, for the respondent-appellee.
OPINION
SCHROEDER, Chief Circuit Judge:
Darold Stenson was convicted and sentenced to death in
Washington State in 1994 for the 1993 first-degree murders
of his wife, Denise Stenson, and his business partner, Frank
Hoerner. The trial was punctuated by disagreements between
Stenson and his appointed counsel, Fred Leatherman. Lea-
therman believed that the trial phase was not winnable and,
therefore, thought he should focus on the penalty phase, to
spare Stenson from the death penalty. Stenson believed Lea-
therman should focus on an acquittal. The most serious spe-
cific issue during the guilt phase was whether, during cross-
examination of Frank Hoerner’s wife (also named Denise),
Leatherman should attempt to suggest that she, not Stenson,
committed the murders. Relatedly, Stenson believed Leather-
man should introduce “other suspect” evidence to implicate
Denise Hoerner. Leatherman refused to take this approach,
because the evidence suggesting that Denise Hoerner had
committed the murders was virtually non-existent. The most
serious penalty-phase issue was whether Leatherman was
ineffective for conceding Stenson’s guilt after the jury had
decided the issue in the guilt phase, in order to persuade the
13022 STENSON v. LAMBERT
jury not to impose the death penalty. State v. Stenson, 940
P.2d 1230, 1274-75 (Wash. 1997), cert. denied, 523 U.S.
1008 (1998).
Because of the disagreements during trial, Stenson moved
for appointment of new counsel or, in the alternative, to repre-
sent himself, pursuant to Faretta v. California, 422 U.S. 806
(1975). The trial court held a hearing on the motion. It denied
Stenson’s request for substitution of counsel and found that
his request to represent himself was untimely and equivocal.
The Washington Supreme Court agreed that Stenson’s
Faretta request was equivocal, and did not reach the issue of
timeliness.
Stenson also asked the trial court to appoint independent
counsel to represent him at the hearing on his motion to
appoint new counsel, raising an issue as to whether the hear-
ing constituted a critical stage of the proceedings. The Wash-
ington Supreme Court found that while the hearing
constituted a critical stage of the proceedings, independent
counsel was not required because Leatherman’s second-chair
David Neupert, adequately represented Stenson’s interests.
In addition to challenging Leatherman’s concession of guilt
during the penalty phase, Stenson challenged the trial court’s
refusal to allow testimony from his father and sister regarding
the impact his execution would have on his three young chil-
dren, claiming the exclusion violated Lockett v. Ohio, 438
U.S. 586 (1978). As to Leatherman’s concession of Stenson’s
guilt, the Washington Supreme Court ruled the decision was
tactical and not deficient under Strickland v. Washington, 466
U.S. 668 (1984). It further held that even if the decision had
amounted to a deficiency, under Strickland’s second prong
Stenson could not show that he suffered any prejudice as a
result of Leatherman’s conduct. As to the Lockett claim, the
Washington Supreme Court reasoned that Stenson’s right to
present mitigating evidence had not been violated because the
trial court allowed all character and background evidence,
STENSON v. LAMBERT 13023
including evidence of Stenson’s relationships with his friends
and family. It had excluded only direct statements of how
Stenson’s execution might impact his family members. This
evidence, said the trial court, amounted to “nothing more than
their opinions as to the sentence” Stenson should receive.
Stenson, 940 P.2d at 1282.
We have no basis to disagree with the Washington
Supreme Court’s rulings on Stenson’s various claims. We
accordingly affirm the judgment of the district court denying
Stenson’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
FACTUAL BACKGROUND
On March 25, 1993, at 4:00 a.m. Stenson called 911 and
told the operator “this is D.J. Stenson at Dakota Farms . . . .
Frank has just shot my wife, and himself, I think.” Dakota
Farms was located in Clallam County, Washington and was
the residence of Stenson, his wife, Denise Stenson, and their
three young children. Stenson also operated a business, rais-
ing and selling exotic birds, from Dakota Farms.
Within several minutes of Stenson’s 911 call, the police
arrived at Dakota Farms. Stenson met them outside and led
them to a guest bedroom on the ground floor, where Frank
Hoerner lay dead on the floor with a bullet wound to the head.
The body was face-down. A revolver lay between Hoerner’s
left hand and his head. Stenson next led the police officers to
an upstairs bedroom where Denise Stenson lay in the bed,
with a severe bullet wound to the head. She was airlifted to
a hospital, but died the next day.
Stenson told the officers the following story: Frank Hoerner
had arrived at his house a little after 3:30 a.m. in order to sign
forms to insure ostriches that Stenson was going to buy for
Hoerner on a trip to Texas. When Hoerner arrived, the two
men went to Stenson’s office in a separate building behind the
13024 STENSON v. LAMBERT
house, where Hoerner signed the insurance forms. Hoerner
then left the office building to use the bathroom in the house.
When Hoerner failed to return, Stenson went to look for him
and found him dead in the guest bedroom, where Stenson had
shown police the body. Stenson heard moaning from upstairs.
When he went upstairs, he found his wife shot in the head.
Stenson had not heard any gun shots. Stenson then called the
911 operator. When the officers asked Stenson if he knew
why someone would want to kill Frank Hoerner, Stenson
responded that there had been sexual problems between
Hoerner and his wife, Denise Hoerner, and that Frank
Hoerner had complained about their marriage.
The subsequent investigation showed that Frank Hoerner
had not committed suicide in the bedroom, but had been hit
in the head and dragged into the house from the gravel drive-
way, through the laundry room, and into the guest bedroom
where Stenson claimed to have found the body. Hoerner had
been shot in the head in the guest bedroom at close range. The
revolver had been placed near Hoerner’s hand after his hand
had come to rest on the floor.
Splatters of Hoerner’s blood were found in the driveway.
Blood splatters were also found on Stenson’s pants that
matched Hoerner’s blood protein profile. Gravel from the
driveway was found in the laundry room and inside Hoerner’s
pants. A bloody Stenson fingerprint was found on the freezer
in the laundry room. According to Michael Grubb, a forensic
expert, the pattern of some of the splatters indicated that they
could not have been deposited on Stenson’s pants after Frank
had been moved, i.e., the splatters on Stenson’s pants strongly
suggested that Stenson had moved Frank’s body after he was
shot.
The police also found ammunition in Stenson’s garage that
fit the murder weapon. They found gunshot residue inside a
pocket of Stenson’s pants. Stenson had once been a martial
arts instructor, and had a collection of nun-chucka sticks on
STENSON v. LAMBERT 13025
the wall of his office. Dr. Brady, who performed the autopsy
on Frank Hoerner, testified at the trial that the wounds on
Hoerner’s head were consistent with such a weapon.
The investigation also revealed that Stenson was in finan-
cial difficulty. Frank Hoerner had given Stenson a $50,000
deposit for the purchase of exotic birds, but at the time of the
murders Stenson’s financial records showed that he had used
less than $2,000 of Hoerner’s deposit to purchase birds. In
addition, the bank account for Dakota Farms contained only
about $3,400, and an audit indicated that Stenson had used
investors’ money for personal purchases. He had attempted to
borrow a large amount of money shortly before the murders.
Finally, Stenson had taken out a $400,000 life insurance pol-
icy on his wife.
Stenson was arrested on April 8, 1993, about two weeks
after the murders. His jury trial took place in Clallam County,
Washington, in the summer of 1994. The prosecution’s theory
was that Stenson had killed his wife in order to collect the
$400,000 in life insurance money, and had killed Frank
Hoerner in order to free himself from the $48,000 he owed
Hoerner and to be able to blame Hoerner for the murder of
Denise Stenson. The prosecutor argued to the jury that the
physical evidence taken at the crime scene made Stenson’s
initial statements to the police implausible.
Frank Hoerner’s wife, Denise Hoerner, testified that Sten-
son solicited Hoerner for investments in Stenson’s exotic bird
business. Since 1992, Hoerner had given Stenson more than
$50,000 for the purchase of birds. About a month before the
murders, Hoerner became worried about the money he had
entrusted to Stenson and so told Stenson either to return his
investment or to deliver the promised birds. In response, Sten-
son told the Hoerners that he needed to keep their money in
his account in order to maintain the confidence of Asian
investors from whom he was attempting to obtain a loan.
Denise Hoerner further testified that her husband’s anxiety
13026 STENSON v. LAMBERT
continued when Stenson traveled to Texas to obtain birds for
the Hoerners, but returned empty-handed. She testified that
Stenson assured Hoerner that he would return to Texas on
March 25, 1993, to collect the birds. On the evening of March
24, Stenson told Hoerner to come to his house to sign docu-
ments necessary to insure the birds during their trip from
Texas. Denise Hoerner offered to come sign the papers, but
Stenson said that only Hoerner could sign them. Hoerner
agreed to come by Stenson’s house during the early morning
hours of March 25, on his way to the ferry that he took to
work in Seattle.
During the course of the trial, Stenson and his attorney,
Fred Leatherman, developed conflicting views as to whether
Leatherman should attempt to convince the jury that Denise
Hoerner was the murderer. Leatherman did not want to
attempt this defense because the forensic expert had con-
cluded that Stenson could not have gotten the blood splatters
on his pants after discovering Frank Hoerner’s body. In the
context of the other evidence, this conclusion strongly sug-
gested that Stenson had moved Hoerner’s body after Hoerner
had been killed, which in turn strongly suggested that Stenson
killed Hoerner. Leatherman believed that attempting to vilify
Denise Hoerner would only turn the jury against Stenson and
increase the likelihood that it would impose the death penalty
during the sentencing phase.
As a result of the conflict regarding trial strategy, Stenson
moved the court to appoint new counsel or, in the alternative,
to allow him to represent himself. Because Stenson’s request
came three weeks into the voir dire process and near the end
of jury selection, the trial court determined that Stenson’s
request to represent himself was untimely. It also found that
Stenson’s request was equivocal, based on the record as a
whole. The court based this determination on the fact that
Stenson indicated that he “really [did] not want to proceed
without counsel[,]” and made his request to represent himself
only as an alternative, should the trial court refuse to appoint
STENSON v. LAMBERT 13027
new counsel. Stenson, 940 P.2d at 1275. The trial court did
not appoint independent counsel to represent Stenson at the
hearing on the motion for new counsel.
On August 11, 1994, the jury convicted Stenson of two
counts of aggravated first-degree murder. With regard to the
murder of Denise Stenson, the jury found the aggravating cir-
cumstances that more than one person was murdered and that
the murders were part of a common scheme or plan. With
regard to the murder of Frank Hoerner, the jury found the
aggravating circumstances that the murder was committed to
conceal a crime or to protect or conceal the defendant’s iden-
tity, and that more than one person was murdered as part of
a common scheme or plan.
During the penalty phase, Leatherman stated that both he
and Stenson “accepted” the jury’s determination of guilt. Lea-
therman also requested that the court hear testimony from
Stenson’s family members regarding the impact Stenson’s
execution would have on Stenson’s three young children and
his father, who suffered from a heart condition. The court per-
mitted extensive testimony from Stenson’s family and friends
regarding their relationships with him, but excluded testimony
from Stenson’s family members regarding how his execution
would impact them, because the court found that this testi-
mony would do no more than present their opinions as to
what Stenson’s sentence should be. The jury sentenced Sten-
son to death.
PROCEDURAL BACKGROUND
Stenson appealed his conviction and sentence to the Wash-
ington Supreme Court, contending, inter alia, that his self rep-
resentation rights pursuant to Faretta, 422 U.S. 806, and his
right to have mitigating evidence considered by the jury at the
penalty phase under Lockett, 438 U.S. 586, had been violated.
The Washington Supreme Court affirmed the conviction and
sentence. See Stenson, 940 P.2d 1239.
13028 STENSON v. LAMBERT
In April 1999, Stenson filed the first of three personal
restraint petitions with the Washington Supreme Court. In it,
he raised, among other issues, his claims of ineffective assis-
tance of counsel, the denial of counsel during a critical stage
of the proceedings (i.e., at the hearing on his motion for sub-
stitution of counsel), and his conflict with his trial counsel.
The Washington Supreme Court denied that petition in 2001.
See In re Stenson, 16 P.3d 1 (Wash. 2001).
The other two personal restraint petitions were filed during
the pendency of Stenson’s federal habeas petition, and both
were dismissed under state procedural bars, as untimely and
as an abuse of the writ, respectively. These claims are not
before us.
This proceeding was initiated on February 20, 2001, when
Stenson filed his petition pursuant to 28 U.S.C. § 2254, in the
Western District of Washington. The district court, in a
lengthy and thoughtful decision, denied Stenson’s petition and
later denied Stenson’s petition for reconsideration, which
were both founded primarily on the contention that his coun-
sel was ineffective for conceding guilt in the penalty phase in
order to try to avoid the death penalty. The district court
observed:
Conceding guilt in the guilt phase is markedly differ-
ent from conceding guilt in the penalty phase of a
capital case after the jury has just found the defen-
dant guilty. The reality that the defendant’s counsel
faces in the sentencing phase of a capital case once
the jury has found the defendant guilty changes the
landscape of what constitutes reasonable or deficient
performance. As the Supreme Court recognized in
Florida v. Nixon, [543 U.S. 175 (2004)] “[a]ttorneys
representing capital defendants face daunting chal-
lenges in developing trial strategies, not least
because the defendant’s guilt is often clear.” [543
U.S. at 177.]
STENSON v. LAMBERT 13029
The district court granted Stenson’s motion for a certificate
of appealability on a number of issues, including his Faretta
and Lockett claims, his claim that his right to counsel at a crit-
ical stage in the proceeding was violated, and his claim that
he was denied effective assistance of counsel at sentencing.
ANALYSIS
I. The Standards Governing This Appeal.
The Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), enacted in 1996, “placed a new restriction on the
power of federal courts to grant writs of habeas corpus to state
prisoners.” Williams v. Taylor, 529 U.S. 362, 399 (2000).
AEDPA prohibits relief on any claim adjudicated in state
court unless the state court decision was “contrary to, or
involved an unreasonable application of, clearly established
federal law,” or “was based on an unreasonable determination
of the facts[.]” 28 U.S.C. § 2254(d)(1), (2).
A state court decision is contrary to clearly established fed-
eral law where the “state court arrives at a conclusion oppo-
site to that reached by [the Supreme Court] on a question of
law.” Williams, 529 U.S. at 405. A state court decision also
is contrary to clearly established federal law “if the state court
confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a result
opposite” the Supreme Court’s. Id.
A state court decision constitutes an unreasonable applica-
tion of Supreme Court precedent only if the state court deci-
sion is objectively unreasonable. That is, the state court
decision must be “more than incorrect or erroneous.” Cooks
v. Newland, 395 F.3d 1077, 1080 (9th Cir. 2005). Whether a
state court’s application of a rule is reasonable depends on the
specificity of the rule. Yarborough v. Alvarado, 541 U.S. 652,
663 (2004). Where the Supreme Court has not addressed an
issue in its holding, a state court adjudication of the issue not
13030 STENSON v. LAMBERT
addressed by the Supreme Court cannot be contrary to, or an
unreasonable application of, clearly established federal law.
Kane v. Espitia, 546 U.S. 9, 9 (2006). Accordingly, Stenson
is not entitled to habeas relief under 28 U.S.C. § 2254(d)(1)
unless the Washington court’s decision “was contrary to or
involved an unreasonable application of [the Supreme
Court’s] applicable holdings.” Carey v. Musladin, 127 S. Ct.
649, 653 (2006).
We also may grant relief if the state court adjudication
“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)(2). AEDPA directs us to presume that
state court factual findings are correct. 28 U.S.C.
§ 2254(e)(1). We may not overturn them “absent clear and
convincing evidence” that they are “objectively unreason-
able[.]” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
II. The Washington Supreme Court’s Holding That The
Trial Court Did Not Violate Faretta v. California Was
Not Objectively Unreasonable.
Under the Sixth Amendment, criminal defendants have a
right to be represented by an attorney. U.S. Const. amend. VI.
The right to counsel has been interpreted to encompass “an
independent constitutional right” of the accused to represent
himself at trial, and thus waive the right to counsel. Faretta,
422 U.S. at 806. Such waiver, however, must be “knowing,
voluntary, and intelligent[.]” Iowa v. Tovar, 541 U.S. 77, 88
(2004) (citing Faretta, 422 U.S. at 806); Faretta, 422 U.S. at
835 (“the accused must knowingly and intelligently forgo” the
right to counsel) (citing Johnson v. Zerbst, 304 U.S. 458
(1938)) (internal quotation marks omitted). We also have held
that Faretta requires a defendant’s request for self-
representation be unequivocal, timely, and not for purposes of
delay. United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir.
2004); see also United States v. Arlt, 41 F.3d 516, 519 (9th
Cir. 1994).
STENSON v. LAMBERT 13031
Voir dire began in June. As voir dire was concluding, just
before the jury was impaneled, Stenson requested that the trial
court appoint new counsel. He made three such requests—one
on July 12, one on July 13, and one on July 14, 1994. Each
time, the court denied the request and Stenson then asked the
court to allow him to represent himself. The trial court deter-
mined that, because Stenson’s request to represent himself
first came on the 20th day of voir dire and on the verge of jury
impanelment, it was not timely. In addition, the trial court
found that Stenson’s request was equivocal, because Stenson
plainly did not want to represent himself. He told the court
that he was moving to represent himself only because the
court had denied his request for substitution of counsel. On
July 14, when Stenson again asked the court to allow him to
represent himself, he described it as a formal request and
stated, “I do not want to do this but the court and the counsel
that I currently have force me to do this.” The trial court
denied the motion. The Washington Supreme Court upheld
the trial court’s determination, finding that “almost all of the
conversation between the trial judge and the Defendant con-
cerned [Stenson’s] wish for different counsel. . . . He told the
trial court he did not want to represent himself[.]” Stenson,
940 P.2d at 1276.
A. The Washington Supreme Court’s Determination
That Stenson’s Faretta Request Was Equivocal
Was Not Objectively Unreasonable.
Stenson argues on appeal that the Washington Supreme
Court unreasonably applied Faretta in finding that his reluc-
tance to proceed pro se did not amount to an unequivocal
request to represent himself. The district court, relying on
United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir.
1994), treated as an issue of fact the question whether Sten-
son’s request to proceed pro se was equivocal. See also
United States v. Mackovich, 209 F.3d 1227, 1237 (8th Cir.
2000) (stating that the question is a question of fact); Fields
v. Murray, 49 F.3d 1024, 1032 (4th Cir. 1995) (same).
13032 STENSON v. LAMBERT
In its denial of Stenson’s federal habeas petition, the district
court noted that we look to three factors to determine whether
a request for self-representation is unequivocal: the timing of
the request, the manner in which the request was made, and
whether the defendant repeatedly made the request. In apply-
ing these factors, federal courts must give significant defer-
ence to the trial court’s factual findings. See 28 U.S.C.
§ 2254(e)(1) (state court factual findings “shall be presumed
to be correct”).
We hold that the Washington Supreme Court’s holding that
Stenson’s request at trial was “not unequivocal,” Stenson, 940
P.2d at 1275, was not “based on an unreasonable determina-
tion of the facts.” 28 U.S.C. § 2254(d)(2). A clear preference
for receiving new counsel over representing oneself does not
conclusively render a request equivocal under Faretta. Adams
v. Carroll, 875 F.2d 1441, 1445 (9th Cir. 1989). It may, how-
ever, be an indication that the request, in light of the record
as whole, is equivocal. United States v. Kienenberger, 13 F.3d
1354, 1546 (9th Cir. 1994) (denying request for self-
representation based on defendant’s indication that he wanted
“advisory” counsel). Here, the trial court determined that
Stenson’s request was not unequivocal on the basis of the
record as a whole, which included several statements by Sten-
son that he really did not want to represent himself but that
he felt the court and his existing counsel were forcing him to
do so. When the court indicated that it did not think Stenson
wanted to proceed without counsel, Stenson replied, “[b]ut
likewise I do not proceed [sic] with counsel that I have.”
[1] The Washington Supreme Court relied on several indi-
cators in determining that Stenson’s request to proceed pro se
was not unequivocal. It cited Stenson’s statement that he
really did not want to represent himself and noted that he did
not refute the trial judge when the judge also came to this con-
clusion. It cited steps Stenson took to locate another attorney.
Finally, it pointed out that Stenson did not include a request
to represent himself in his final written request for new coun-
STENSON v. LAMBERT 13033
sel and, in fact, he requested that David Neupert, Leather-
man’s co-counsel, be retained as counsel, supporting an
inference that Stenson preferred working with Neupert over
representing himself. Stenson, 940 P.2d at 1275.
Stenson asks us to rely on United States v. Hernandez, 203
F.3d 614 (9th Cir. 2000), and Adams v. Carroll, 875 F.2d
1441 (9th Cir. 1989), to find that his request was unequivocal.
But Stenson’s burden under 28 U.S.C. § 2254(d)(2) is to dem-
onstrate that the Washington court’s finding that his request
was equivocal “was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” He does not do so, and the cases he cites
are not analogous.
In Adams, the defendant requested appointment of a new
attorney early and often, and wound up with the same attor-
ney against whom he had filed a malpractice claim. 875 F.2d
at 1442-43. Although the trial court denied Adams’ request
that it appoint a new attorney, it did allow him to represent
himself. Id. at 1442. After representing himself for six weeks,
Adams requested that the court appoint co-counsel to assist
him. Id. The court refused to do so. Id. Two months after the
denial of his request for co-counsel, Adams informed the
court that he had filed a malpractice suit against his former
attorney and again requested that the court appoint another
attorney. Id. Adams’ request included the condition that the
court inform the public defender’s office not appoint the attor-
ney against whom Adams had filed the claim, Mr. Carroll,
who was a public defender. Id.
The public defender service “promptly reassigned Carroll
to the case.” Id. at 1443. Adams thus asked to represent him-
self once again, but the court denied his motion. Id. Adams
was forced to proceed to trial with Carroll as his advocate and
was convicted on all counts against him. Id. Following the
trial, Adams filed his federal habeas petition, and initiated his
appeal, pro se. Id. On appeal, he contended that the trial
13034 STENSON v. LAMBERT
court’s denial of his last request to represent himself was con-
stitutional error. Id. We held that it was error because,
although conditioned on the court’s refusal to appoint an
attorney other than Carroll, Adams’ position throughout a
several-year period was unwavering. Id. at 1445 (“Adams . . .
took one position and stuck to it.”) The extent of the conflict
and the persistence of the defendant in Adams are not present
in Stenson’s case. Unlike Adams, Stenson failed consistently
to maintain his desire to represent himself.
In Hernandez, the defendant made his initial request to rep-
resent himself very early—at the pretrial status conference.
203 F.3d at 617. Stenson did not make his initial request until
the day before voir dire ended. Hernandez’s request was con-
ditioned on the court’s refusal to appoint new counsel. Id.
Although Stenson’s request also was presented as an alterna-
tive to appointment of new counsel, it was not similar to Her-
nandez’s. We described Hernandez’s request to be “an
explicit choice between exercising the right to counsel and the
right to self-representation,” allowing the court to be reason-
ably certain that Hernandez wished to represent himself. Id.
at 621 (citing United States v. Arlt, 41 F.3d 516, 519 (9th Cir.
1994)) (internal quotation marks omitted). Furthermore, the
trial judge in Hernandez engaged in “a dialogue with Her-
nandez to determine whether [his request] was voluntary and
intelligent,” and we held that that tended to show the trial
court that the request was unequivocal. Id.
[2] By contrast, all of Stenson’s requests for self-
representation were concessions that he really did not want to
represent himself, but that he felt the court and Leatherman
were forcing him to do so. We thus hold that the Washington
Supreme Court’s interpretation of Stenson’s statements as
evidencing uncertainty or equivocation regarding his desire to
proceed pro se was not objectively unreasonable. Its finding
that Stenson’s “conditional” request was “an indication to the
court, in light of the record as a whole, that the request was
not unequivocal,” Stenson, 940 P.2d at 1276, was not based
STENSON v. LAMBERT 13035
on an unreasonable determination of the facts. Musladin, 127
S. Ct. at 653.
B. The Trial Court’s Determination That Stenson’s
Faretta Request Was Untimely Was Not Objectively
Unreasonable.
Stenson also argues that the trial court erred in finding that
his request to represent himself was untimely. The Washing-
ton Supreme Court did not reach the issue of timeliness. We
thus look to the trial court’s decision as the last reasoned state
court decision on the issue. See Hirschfield v. Payne, 420 F.3d
922, 928 (9th Cir. 2005).
[3] We are required to determine whether the state court’s
application of Faretta “was contrary to or involved an unrea-
sonable application of [the Supreme Court’s] applicable hold-
ings.” Musladin, 127 S. Ct. at 653. Faretta does not articulate
a specific time frame pursuant to which a claim for self-
representation qualifies as timely. It indicates only that a
motion for self-representation made “weeks before trial” is
timely. Faretta, 422 U.S. at 835. We have found that a state
court’s denial of a motion made on the morning trial began as
untimely was neither contrary to nor an unreasonable applica-
tion of clearly established federal law. See Marshall v. Taylor,
395 F.3d 1058, 1061 (9th Cir. 2005). The Supreme Court has
never held that Faretta’s “weeks before trial” standard
requires courts to grant requests for self-representation com-
ing on the eve of trial. The trial court’s determination that
Stenson’s request to proceed pro se was untimely is not objec-
tively unreasonable under AEDPA.
III. The Washington Supreme Court Properly Denied
Stenson’s Claim Of Ineffective Assistance Of Counsel
During Trial.
Stenson raises three issues with regard to Leatherman’s
performance at trial. First, he claims that his disagreements
13036 STENSON v. LAMBERT
with Leatherman amounted to a conflict of interest effectively
denying him representation, in violation of the Sixth Amend-
ment. Second, he claims that the trial court was required to
appoint independent counsel during a hearing on his motion
to substitute counsel and that the court’s failure to do so
resulted in denial of counsel during a critical stage of the pro-
ceedings. Third, he claims that Leatherman was ineffective
for failing to pursue Stenson’s suggested trial strategy—to
attempt to convince the jury that Denise Hoerner, and not
Stenson, committed the murders.
Stenson premises his conflict and ineffective assistance
claims on Leatherman’s refusal to adopt his suggested strat-
egy of attempting to pin the crimes on Denise Hoerner. Sten-
son believed Leatherman should attempt to introduce a
statement Denise Hoerner once made indicating that she had
motive and opportunity to kill her husband, specifically, that
she wished her husband were dead because she would not be
able to get any money under the prenuptial agreement unless
he died. Leatherman did not attempt to introduce this state-
ment because, under Washington law, “other suspect” evi-
dence requires a “train of facts or circumstances which tend
clearly to point to someone other than the defendant as the
guilty party.” In re Lord, 868 P.2d 835, 849 (Wash. 1994).
Leatherman was convinced that Mrs. Hoerner’s statement did
not meet Washington’s evidentiary standard for admission.
Leatherman also believed that attempting to implicate Mrs.
Hoerner, in the face of overwhelming evidence against Sten-
son, would turn the jury against Stenson and drastically
reduce his chance for a sentence of life instead of death in the
penalty phase. Stenson claims that Leatherman’s refusal to
attempt to pin the crimes on Mrs. Hoerner amounted to a con-
flict of interest, an irreconcilable conflict, and a constructive
denial of counsel because Leatherman had a different trial
objective than Stenson, that is, he did not want to “win” the
trial; he merely wanted to avoid the death penalty.
STENSON v. LAMBERT 13037
The Sixth Amendment guarantees criminal defendants the
right to representation at all critical stages of the proceedings.
Coleman v. Alabama, 399 U.S. 1, 3 (1970). This right encom-
passes the right to conflict-free representation. See Wheat v.
United States, 486 U.S. 153, 153 (1988). The Washington
Supreme Court and the district court construed Stenson’s con-
flict argument as both a contention that Stenson and Leather-
man had an “actual” conflict of interest, under the Sixth
Amendment’s guarantee of a right to conflict-free assistance
of counsel, Wheat, 486 U.S. at 153, and an assertion of an “ir-
reconcilable” conflict amounting to the constructive depriva-
tion of counsel, Brown v. Craven, 424 F.2d 1166, 1170 (9th
Cir. 1970) cited in Schell v. Witek, 218 F.3d 1017, 1025 (9th
Cir. 2000).
A. The Washington Supreme Court’s Determination
That Stenson And Leatherman Did Not Have An
Actual Conflict of Interest Was Not Contrary To
Or An Unreasonable Application Of Federal Law.
[4] Although a criminal defendant enjoys the right to
conflict-free representation, the mere “possibility of conflict
is insufficient to impugn a criminal conviction.” Cuyler v.
Sullivan, 445 U.S. 335, 350 (1980). In order to demonstrate
an actual conflict of interest, the defendant must show that his
attorney was actively representing conflicting interests and
that the conflict adversely affected the attorney’s perfor-
mance. Id. at 348-50.
[5] The Washington Supreme Court noted that the phrase
“conflict of interest” is a term of art in the law. 16 P.3d at 8.
Ordinarily, it denotes representation of multiple conflicting
interests, such as an attorney’s representation of more than
one defendant in the same criminal case, or representation of
a defendant where the attorney is being prosecuted for related
crimes. See Mickens v. Taylor, 535 U.S. 162, 176 (2002)
(“until . . . a defendant shows that his counsel actively repre-
sented conflicting interests, he has not established the consti-
13038 STENSON v. LAMBERT
tution predicate for his claim of ineffective assistance”)
(quoting Sullivan, 446 U.S. at 350) (emphasis in original);
United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998)
(distinguishing a conflict of interest, which is “the existence
of competing interest potentially affecting counsel’s capacity
to give undivided loyalty to his client’s interests,” from an
irreconcilable conflict). Stenson’s disagreement with Leather-
man is better characterized as one over trial strategy, and the
Washington Supreme Court so characterized it. We can find
no clearly established Supreme Court precedent holding that
this kind of disagreement amounts to an actual conflict of
interest. The Washington Supreme Court correctly determined
that no clearly established federal law supports Stenson’s con-
struction of “conflict of interest” as describing a disagreement
between attorney and client over trial strategy.
B. The Washington Supreme Court’s Determination
Of No Irreconcilable Conflict Was Not Contrary To
Or An Unreasonable Application Of Federal Law.
[6] The Sixth Amendment does not guarantee a “meaning-
ful relationship” between a client and his attorney. Morris v.
Slappy, 461 U.S. 1, 14 (1983). However, forcing a defendant
to go to trial with an attorney with whom he has an irreconcil-
able conflict amounts to constructive denial of the Sixth
Amendment right to counsel. Brown, 424 F.2d at 1170. An
irreconcilable conflict in violation of the Sixth Amendment
occurs only where there is a complete breakdown in commu-
nication between the attorney and client, and the breakdown
prevents effective assistance of counsel. Schell, 281 F.3d at
1026. Disagreements over strategical or tactical decisions do
not rise to level of a complete breakdown in communication.
Id.
To determine whether a conflict rises to the level of “irrec-
oncilable,” a court looks to three factors: 1) the extent of the
conflict; 2) the adequacy of the inquiry by the trial court; and
3) the timeliness of the motion for substitution of counsel.
STENSON v. LAMBERT 13039
Moore, 159 F.3d at 1158-59. A trial court’s inquiry regarding
counsel’s performance on a motion to substitute counsel
should be “such necessary inquiry as might ease the defen-
dant’s dissatisfaction, distrust, and concern.” United States v.
Garcia, 924 F.2d 925, 926 (9th Cir. 1991) (internal quotation
marks and citation omitted). It also should provide a “suffi-
cient basis for reaching an informed decision[ ]” regarding
whether to appoint new counsel. United States v. McClendon,
782 F.2d 785, 789 (9th Cir. 1986).
[7] Stenson now argues that the Washington Supreme
Court’s ruling on the extent of the conflict and the adequacy
of the trial court’s inquiry was objectively unreasonable and
factually unsupported. He also contends that the trial court’s
reliance on Leatherman’s competence was improper. We do
not agree. In assessing the extent of the conflict, the trial court
held numerous ex parte hearings with Stenson and Leather-
man to determine whether communication had broken down
and whether substitute counsel was warranted. In the course
of these hearings, the trial court vetted Leatherman’s reasons
for adopting the trial strategy he had adopted. It satisfied itself
as to Leatherman’s competence. It also examined the flow of
communication between Stenson and David Neupert, Leather-
man’s second-chair and determined that communication
between Neupert and Stenson remained open, as did the lines
of communication between Neupert and Leatherman. Thus,
because Neupert was in constant communication with Lea-
therman and because Stenson could and did communicate
with Neupert, the trial court found that there was no break-
down of communication between Leatherman and Stenson so
severe as to amount to constructive denial of counsel.
The Washington Supreme Court, in rejecting Stenson’s
final personal restraint petition, focused on Leatherman’s
competence. It noted that Leatherman had cross-examined
twenty-five of the state’s thirty-three witnesses, called five
witnesses of its own, and that Stenson had “expressed general
satisfaction with the way his attorneys conducted the trial.” In
13040 STENSON v. LAMBERT
re Stenson, 16 P.3d at 8. It thus upheld the trial court’s deter-
mination.
[8] Although we have held that a complete breakdown of
communication may occur even where counsel is providing
competent representation, we have done so only in extreme
cases. See United States v. Nguyen, 262 F.3d 998, 1003 (9th
Cir. 2001); United States v. Musa, 220 F.3d 1096, 1102 (9th
Cir. 2000). In Nguyen, the trial judge, who was sitting by des-
ignation in Guam and expressed concern regarding traveling
“halfway around the world” to hear the case, “improperly
emphasized his own schedule at the expense of Nguyen’s
Sixth Amendment rights.” 262 F.3d at 1003. Furthermore, the
trial court’s inquiry there focused “exclusively on the attor-
ney’s competence and refused to consider the relationship
between Nguyen and his attorney.” Id. The court’s refusal to
consider the relationship was significant in Nguyen because,
by the time trial began, Nguyen was “left to fend for himself”;
he could not confer with his attorney about trial strategy or
evidence, or even get his attorney to explain the proceedings.
Id. at 1004. No communication at all flowed between attorney
and client.
By contrast, the Washington Supreme Court here deter-
mined that lines of communication between Stenson and Neu-
pert, Leatherman’s second-chair, were still active. Thus, on
balance, Leatherman’s competence was a more significant
factor in the Washington Supreme Court’s analysis in this
case. We have also determined the extent of an alleged con-
flict by examining the attorney’s performance and compe-
tence, lending support to the Washington Supreme Court’s
emphasis on Leatherman’s competence in its determination
that the trial court’s inquiry was sufficient. See Moore, 159
F.3d at 1159 (holding that attorney’s failure to keep defendant
informed of plea negotiations and to prepare for trial because
he felt physically threatened by defendant demonstrated irrec-
oncilable conflict); Frazer v. United States, 18 F.3d 778, 785
(1994) (holding that refusal to collect useful evidence for mit-
STENSON v. LAMBERT 13041
igation in combination with calling defendant derogatory rac-
ist names demonstrated irreconcilable conflict).
[9] In light of applicable holdings of the Supreme Court
and on the basis of the record as a whole, the Washington
Supreme Court’s determination that there was no irreconcil-
able conflict was not contrary to or an unreasonable applica-
tion of federal law. Musladin, 127 S. Ct. at 653.
C. The Washington Supreme Court’s Determination
That The Trial Court Was Not Required to
Appoint Independent Counsel to Represent Stenson
At The Hearing On His Motion for a New Attorney
Was Not Contrary To Or An Unreasonable
Application Of Federal Law.
[10] A criminal defendant is entitled to representation at
every critical stage of the proceedings. Coleman, 399 U.S. at
3; Correll v. Ryan, 465 F.3d 1006, 1009 (9th Cir. 2006). A
“critical stage” is any proceeding that implicates “substantial
rights of the accused.” Id. In the context of a motion to substi-
tute counsel, this court has suggested that separate counsel
may be warranted, for purposes of the motion, where current
counsel fails to assist the defendant in making the motion or
takes an adversarial and antagonistic stance regarding the
motion. Adelzo-Gonzalez, 268 F.3d at 779-80.
In his first personal restraint petition, Stenson argued that
the trial court should have appointed independent counsel to
represent him at the July 13 hearing on his motion to substi-
tute counsel because Leatherman’s antagonistic position left
him effectively without representation. The Washington
Supreme Court rejected this claim because, as we have seen,
the lines of communication between Stenson and David Neu-
pert remained open. Even assuming Leatherman could not be
effective, the court found that Neupert was.
[11] Stenson relies on United States v. Wadsworth, 820
F.2d 1500 (9th Cir. 1987), to argue that the Washington
13042 STENSON v. LAMBERT
Supreme Court’s holding was in error. Wadsworth is not anal-
ogous. Critical facts distinguish Wadsworth from Stenson’s
case. In Wadsworth, the defendant’s appointed counsel admit-
ted that he had stopped preparing for trial and had effectively
“quit” working on Wadsworth’s case because he was not “re-
ceiv[ing] the cooperation” he expected from Wadsworth. Id.
at 1508. Wadsworth also presented the court with evidence
that his attorney had neglected to respond to evidence and, as
a result, effectively had waived any defense to the evidence.
Id. Finally, during the court inquiry regarding the extent of the
conflict, Wadsworth’s attorney dismissed Wadsworth’s con-
cerns as “a bunch of hooey.” Id. at 1507. We held that, taken
together, these facts demonstrated that Wadsworth was denied
the effective assistance of counsel because his attorney “had
taken an adversary and antagonistic position on a matter con-
cerning his client’s right to counsel and to prepare for trial.”
Id. at 1510-11.
[12] This case, however, presents no such antagonism.
Although Stenson and Leatherman disagreed about Leather-
man’s approach to the defense, Leatherman never stopped
preparing for trial and never let up in his vigorous defense of
Stenson. When Stenson requested substitute counsel, the court
held a hearing and found that the dispute was over strategy,
which did not warrant granting Stenson’s request. It further
found no impediment to Neupert’s ability to advocate for
Stenson, either to Leatherman or to the court. The Washing-
ton Supreme Court agreed with the trial court and dismissed
Stenson’s claim. It noted that, whatever Stenson’s claims with
respect to Leatherman, Neupert had represented Stenson
“continuously.”
[13] The Washington Supreme Court also distinguished
Wadsworth on similar grounds. Its determination that Leather-
man did not engage in egregious conduct amounting to an
absolute denial of representation was a reasonable application
of Supreme Court precedent. Musladin, 127 S. Ct. at 653.
STENSON v. LAMBERT 13043
D. The Washington Supreme Court’s Determination
That Leatherman Did Not Provide Ineffective
Assistance For Refusing To Implicate Denise
Hoerner Was Not Contrary To Or An
Unreasonable Application Of Federal Law.
Under the Sixth Amendment, a criminal defendant is enti-
tled to effective assistance of counsel. See Strickland, 466
U.S. at 686. To demonstrate ineffective assistance of counsel
amounting to a constitutional violation, Stenson must show
that Leatherman’s performance fell below an objective stan-
dard of reasonableness and that, but for Leatherman’s defi-
cient performance, the outcome of the trial would have been
more favorable for Stenson. Id. at 687.
In arguing that Leatherman’s representation was ineffec-
tive, Stenson points to Leatherman’s refusal to attempt to
implicate Denise Hoerner by introducing “other suspect” evi-
dence and by cross-examining her in a manner that would
suggest she committed the murders. The Washington
Supreme Court found that Leatherman’s decision not to
attempt to implicate Denise Hoerner was a question of trial
strategy. It further found that there was nothing in the record
other than Stenson’s unsubstantiated suspicions that pointed
to Denise Hoerner as a suspect. Thus, it concluded that Lea-
therman had correctly determined during trial that the evi-
dence Stenson wanted him to introduce would not have been
admissible under Washington law, because there were no
facts in the record to support it. See In re Lord, 868 P.2d at
849 (holding that introduction of “other suspect” evidence
requires a “train of facts or circumstances which tend clearly
to point to someone other than the defendant as the guilty
party”). Because the evidence would not have been admissi-
ble under state law, the Washington Supreme Court found that
Leatherman’s decision not to introduce it could not have been
defective.
Furthermore, the Washington Supreme Court found that
Leatherman had thoroughly investigated the possibility that
13044 STENSON v. LAMBERT
Denise Hoerner had committed the murders; he had an inves-
tigator stake out her house and look into the possibility that
she had a boyfriend. Leatherman also subpoenaed Mrs.
Hoerner’s bank records. He found no evidence suggesting that
Mrs. Hoerner had killed her husband and Denise Stenson.
[14] Strickland counsels that attorneys have a “duty to
make reasonable investigations” regarding whether admissi-
ble evidence exists. 466 U.S. at 691. In evaluating attorneys’
judgments as to whether to pursue evidence, courts must con-
sider “whether the known evidence would lead a reasonable
attorney to investigate further.” Wiggins v. Smith, 539 U.S.
510, 527 (2003). We apply a “heavy measure of deference to
[an attorney’s] judgments” as to whether additional evidence
may be adduced by further investigation. Id. As the district
court said, “[i]f the decision not to investigate beyond a cer-
tain point is reasonable, then the failure to do so cannot con-
stitute ineffective assistance of counsel.”
[15] Here, the Washington Supreme Court determined that
Leatherman’s decision not to attempt to introduce “other sus-
pect” evidence against Denise Hoerner was reasonable
because Leatherman had made a reasonable investigation that
failed to turn up potentially admissible evidence. Because the
reports of Leatherman’s investigation were not in the trial
record, Leatherman would not be able to meet the burden of
“coming up with enough evidence to clearly point to [Denise
Hoerner] as the guilty party,” as state law required. Stenson,
940 P.2d at 1272; see also In re Lord, 868 P.2d at 849. The
state court’s finding that Leatherman investigated Stenson’s
theory and tried to come up with some admissible evidence to
support it is not an unreasonable determination of the facts. Its
determination that Leatherman was not ineffective was a rea-
sonable application of Strickland’s directive that attorneys be
given a “heavy measure of deference” in their trial choices.
Furthermore, Stenson cannot show that, even if Leatherman’s
performance in refusing to introduce evidence to try to impli-
STENSON v. LAMBERT 13045
cate Mrs. Hoerner was deficient, the outcome of the trial
would have been more favorable to him.
IV. Leatherman’s Decision To Concede Stenson’s Guilt
During The Sentencing Phase Of The Trial Was Not
Objectively Unreasonable Under Federal Law.
An attorney’s decision to concede guilt in the sentencing
phase of a trial is not necessarily an unreasonable tactical
decision. Florida v. Nixon, 543 U.S. 175, 176-77 (2004).
When the evidence against a defendant in a capital case is
overwhelming and counsel concedes guilt in an effort to avoid
the death penalty, “counsel cannot be deemed ineffective for
attempting to impress the jury with his candor[.]” Id. at 192.
The Washington Supreme Court did not address whether
Leatherman’s decision to tell the jury that he and Stenson “ac-
cepted” its verdict amount to ineffective assistance of counsel.
As a result, we conduct an independent review of the record.
See Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005).
At sentencing, Leatherman told the jury, “I [ ] want you to
understand that . . . we accept your verdict without reservation
whatsoever. We don’t question it. We understand that your
verdict is supported by the evidence[.]” He then proceeded to
introduce mitigating evidence, including the testimony of
Stenson’s friends and family regarding their relationships
with Stenson. Stenson argues that Leatherman’s concession of
guilt was error amounting to ineffective assistance of counsel
because Leatherman should have continued to pursue a theory
of residual doubt about Stenson’s guilt.
[16] The Supreme Court has held that residual doubt is not
a properly mitigating factor. Oregon v. Guzek, 546 U.S. 517,
126 S. Ct. 1226, 1230-32 (2006). In addition, as Leatherman
seems to have recognized here, arguing residual doubt is
inconsistent with a capital defendant’s conviction in the guilt
phase, because sentencing “traditionally concerns how, not
13046 STENSON v. LAMBERT
whether, a defendant committed the crime.” Id. at 1230
(emphasis in original). By the time they reach the sentencing
phase, the parties already have litigated whether the defendant
committed the crime.
[17] The Supreme Court also has held that conceding guilt
in the penalty phase is permissible. Nixon, 547 U.S. at 192.
The lawyer in Nixon was faced with a “disruptive and violent”
client who remained “unresponsive” throughout the trial. Id.
at 182. Furthermore, the evidence against Nixon was substan-
tial. He had confessed to the crime and “described [it] in
graphic detail[.]” Id. at 179. The State subsequently “gathered
overwhelming evidence establishing that Nixon had commit-
ted the murder in the manner he described.” Id. at 180. His
attorney concluded that, “given the strength of the evidence,
[ ] Nixon’s guilt was not subject to any reasonable dispute.”
Id. (internal quotation marks omitted). The attorney therefore
took the tack that his job was to “present extensive mitigating
evidence [during sentencing] centering on Nixon’s mental
instability.” Id.
[18] The Supreme Court held that the attorney’s strategy
was not unreasonable, given the circumstances. In so holding,
it acknowledged that “[a]n attorney undoubtedly has a duty to
consult with the client regarding ‘important decisions,’
including questions of overarching defense strategy.” Id. at
187. It said, however, that an attorney is not required “to
obtain the defendant’s consent to ‘every tactical decision.’ ”
Id. In cases where the evidence of guilt is overwhelming and
the attorney is attempting to avoid the death penalty, an attor-
ney does not need to obtain the defendant’s explicit consent
before he concedes guilt in the sentencing phase. Id. 188-89.
[19] Stenson argues that Leatherman’s concession of guilt
went beyond Nixon because Leatherman did not consult with
him before conceding that he “accepted” the jury’s guilty ver-
dict. But Nixon did not hold that an attorney must obtain
defendant’s consent when conceding guilt in the sentencing
STENSON v. LAMBERT 13047
phase. Indeed, even during the guilt phase, an attorney is not
required to obtain a defendant’s “affirmative, explicit accep-
tance” of his strategy, so long as the attorney continues to
“function in [a] meaningful sense as the Government’s adver-
sary.” Id. at 188, 190. The district court pointed out that the
jury might have reacted “positively” to Leatherman’s decision
to concede guilt in the penalty phase “because it showed that
Leatherman and Stenson respected . . . the jury’s finding,
thereby gaining credibility with the jury.” We agree with the
district court’s assessment. On the record before us, there is
no indication that Leatherman’s concession of Stenson’s guilt
is contrary to or an unreasonable application of Nixon or Str-
ickland.
V. The Washington Supreme Court’s Determination That
The Trial Court Did Not Improperly Exclude Mitigating
Evidence Was Not Contrary To Or An Unreasonable
Application Of Federal Law.
[20] Lockett v. Ohio mandates that courts engage in “indi-
vidualized consideration of mitigating factors” to ensure that
“each defendant in a capital case [is treated] with that degree
of respect due the uniqueness of the individual.” 438 U.S. at
605. Under this rule, the jury may “not be precluded from
considering, as a mitigating factor, any aspect of a defen-
dant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence
less than death.” Id. at 604; see also McCleskey v. Kemp, 481
U.S. 279, 306 (1987); Eddings v. Oklahoma, 455 U.S. 104,
110 (1982).
At the beginning of the penalty phase, Leatherman pro-
posed a jury instruction outlining the factors that could be
considered as mitigating circumstances. He requested that the
impact of Stenson’s execution on his family, particularly on
his three young children and his father, who suffered from a
heart condition, be included as mitigating circumstances. He
indicated that he would ask Stenson’s family members
13048 STENSON v. LAMBERT
directly what impact they believed Stenson’s execution would
have on his father and children. The trial court refused to
allow the testimony, concluding that it was not relevant to
Stenson’s character or background. However, the trial court
did permit extensive testimony from Stenson’s family mem-
bers and friends about their relationships with Stenson and
whether they would continue those relationships while Sten-
son was in prison.
Stenson argues that the trial court’s exclusion of specific
testimony as to the impact of his execution violated Lockett’s
requirement that all mitigating evidence be considered. The
Washington Supreme Court rejected this argument, noting
that, although a defendant is entitled to introduce any aspect
of his character or record, or any aspect of the offense, as a
mitigating circumstance, “nothing limits the traditional
authority of a court to exclude, as irrelevant, evidence not
bearing on defendant’s character, prior record, or the circum-
stances of the offense.” Stenson, 940 P.2d at 1281. It con-
cluded that “execution impact” testimony is not relevant
mitigating evidence.
[21] The testimony the trial court excluded encompassed a
very narrow swath of evidence, revealing only what Stenson’s
family members’ opinions were as to the sentence Stenson
should receive. Although mitigating evidence need not relate
directly to the offense, the evidence Stenson argues should
have been admitted simply does not relate to “any aspect of
[his] character or record” that was not addressed by the testi-
mony given. Stenson cannot point to any federal case requir-
ing admission of “execution impact” testimony because there
are no such cases. Lockett does not stand for that principle.
The Washington Supreme Court’s determination that the trial
court was not required to admit Stenson’s proposed “execu-
tion impact” testimony is therefore not objectively unreason-
able.
STENSON v. LAMBERT 13049
CONCLUSION
For the reasons set forth above, the district court’s Denial
of Stenson’s petition for a writ of habeas corpus is
AFFIRMED.