Richard Montiel v. Kevin Chappell ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD GALVAN MONTIEL, No. 15-99000
Petitioner-Appellant, D.C. No.
1:96-cv-05412-LJO-SAB
v.
KEVIN CHAPPELL, Warden, San Quentin MEMORANDUM*
State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding
Argued and Submitted April 16, 2021
San Francisco, California
Before: W. FLETCHER, HURWITZ, and FRIEDLAND, Circuit Judges.
Richard Galvan Montiel appeals from the district court’s denial of his
application for a writ of habeas corpus, in which Montiel challenges his
convictions and capital sentence for the 1979 robbery and murder of Gregorio
Ante. In his habeas application, Montiel argues that he received ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), at both
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
his 1979 guilt-phase and 1986 penalty-phase trials. The district court issued a
certificate of appealability (“COA”) for certain claims related to his 1986 penalty-
phase trial, and we address those claims (and others related to the penalty-phase
trial) in an opinion filed concurrently with this memorandum disposition. For the
reasons we explain here, we decline to expand the COA to include the other
uncertified claims and issues that Montiel advances in his opening brief.
A petitioner seeking a COA “must demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve encouragement to proceed
further.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (brackets and
emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983),
codified by statute as recognized by Slack v. McDaniel, 529 U.S. 473, 483 (2000)).
Montiel’s uncertified claims do not meet this standard.1
1. Montiel urges us to consider whether his penalty-phase attorney provided
ineffective assistance of counsel by failing to file a state habeas petition
challenging his 1979 convictions before the 1986 penalty trial. We decline to
expand the COA to include this claim. As an initial matter, there is no right to
effective assistance of counsel in postconviction proceedings. See Davila v. Davis,
1
For the reasons given in the concurrently filed opinion, our review is
governed by the highly deferential standard of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254(d).
2
137 S. Ct. 2058, 2062 (2017) (“[A] prisoner does not have a constitutional right to
counsel in state postconviction proceedings.”). Thus, Montiel could not have been
deprived of such a right by his attorney’s failure to file a state habeas petition
before the 1986 penalty trial. Moreover, Montiel cannot show prejudice from the
failure to file a state habeas petition before his 1986 penalty trial, because after that
trial, he was able to file a petition raising claims about his 1979 guilt-phase
counsel’s performance that the California Supreme Court considered and denied on
the merits. We also reject Montiel’s argument that, because his penalty-phase
attorney’s failure to file a habeas petition was a result of a conflict-of-interest,
under Cuyler v. Sullivan, 446 U.S. 335 (1980), we must presume prejudice.2
2. Montiel also urges us to consider whether his guilt-phase counsel
provided ineffective assistance at his 1979 trial by failing to investigate and present
evidence that Montiel’s gross intoxication with phencyclidine (“PCP”) prevented
him from harboring the mens rea necessary for robbery and murder. Strickland
2
Montiel argues that we must presume prejudice under Cuyler, 446 U.S. at349–50, because his attorney had previously represented his guilt-phase lawyer in
two unrelated cases. We disagree. The Supreme Court has limited the Cuyler
presumption of prejudice in conflict-of-interest cases to conflicts arising from joint
or concurrent representation. See Mickens v. Taylor, 535 U.S. 162, 175-76 (2002).
“We have held that a state court’s rejection of a conflict claim not stemming from
concurrent representation is neither contrary to, nor an unreasonable application of,
established federal law as determined by the United States Supreme Court.”
Rowland v. Chappell, 876 F.3d 1174, 1192 (9th Cir. 2017). Here, there is no
evidence that Montiel’s penalty-phase attorney was representing his guilt-phase
attorney at the time he allegedly should have filed the state habeas petition..
3
requires that a court “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” 466 U.S. at 689.
Although we do not deny that aspects of guilt-phase counsel’s performance are
troubling, the California Supreme Court could reasonably have concluded that
counsel’s performance did not fall below Strickland’s standard of care.
Montiel’s guilt-phase attorney did present a mental state defense and offered
expert testimony in support of it. He first attempted to hire forensic psychologist
and PCP expert Dr. Steven Lerner to review the possible effects that PCP had on
Montiel’s behavior on the day of the crimes. Dr. Lerner was not available and
recommended that counsel contact Dr. Linder, who testified on Montiel’s behalf.
Dr. Linder held a doctorate in education and health science, had been involved in
PCP research activities, and served as the director of a program to develop
guidelines and training for medical and law-enforcement professionals on the
recognition and management of acute and chronic PCP intoxication. At trial, the
court and the parties agreed that there were almost no qualified experts on the
psychopharmacological effects of PCP. The decision to hire Dr. Linder appears
justified in light of Dr. Lerner’s recommendation, Dr. Linder’s reasonable
qualifications, and the dearth of other available experts. Turner v. Calderon, 281
F.3d 851, 875–76 (9th Cir. 2002) (“The choice of what type of expert to use is one
4
of trial strategy and deserves ‘a heavy measure of deference.’” (quoting Strickland,
466 U.S. at 691)).
Moreover, the guilt-phase attorney’s direct examination of Dr. Linder was
not obviously deficient. In a declaration submitted with Montiel’s state habeas
petition, Dr. Linder explained that Montiel’s attorney had failed to provide him
with California’s criminal jury instructions for the relevant offenses or explain to
him the meaning of legal concepts, like specific intent, pertinent to Montiel’s
mental state. To be sure, counsel’s failure in this regard is troubling, but Montiel
has not provided authority that the failure to provide legal standards to a mental
health expert in preparation for testifying was deficient performance for a capital
guilt-phase lawyer in 1979. And, in any event, Dr. Linder did provide opinions
that undercut the prosecution expert’s conclusions about Montiel’s mental state.
Although his testimony could have been more definitive, Dr. Linder offered the
opinion that Montiel was in a “delusional state” at the time of the crimes; rebutted
the prosecution expert’s assertions that Montiel showed no signs of PCP-induced
psychosis; and noted that PCP’s effects were highly unpredictable, such that one
seemingly rational act was not strong circumstantial evidence that a user was
acting rationally just a short time later.
We therefore cannot say that the California Supreme Court’s denial of the
claim involved an unreasonable application of clearly established Supreme Court
5
precedent. See 28 U.S.C. § 2254(d)(1). We do not think this issue warrants more
searching analysis, and we therefore decline to expand the COA to include the
claim.3
3. Finally, Montiel also attempts to raise a claim under Atkins v. Virginia,
536 U.S. 304 (2002), that his intellectual disability precludes his execution, and a
claim under Napue v. Illinois, 360 U.S. 264 (1959), that the prosecution knowingly
presented false testimony from Palacio. The State argues, and Montiel does not
dispute, that those issues were not presented to the California Supreme Court and
are therefore not exhausted. We agree, and we decline to expand the COA to
includes those claims. See 28 U.S.C. § 2254(b)(1)(A).
3
We therefore need not address Montiel’s arguments that guilt-phase
counsel was ineffective for failing to prepare a different psychiatrist, Dr. Paul
Cutting, who evaluated Montiel before trial. And, in any event, Montiel did not
present Dr. Cutting’s declaration to the California Supreme Court, so we may not
consider it here. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
6