TERRY D. BEMORE, Petitioner-Appellant,
KEVIN CHAPPELL, Warden, Respondent-Appellee
Argued and Submitted, San Francisco, California September 10, 2014.
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Appeal from the United States District Court for the Southern District of California. D.C. No. 3:08-cv-00311-LAB-WVG. Larry A. Burns, District Judge, Presiding.
The panel affirmed the district court's denial of habeas corpus relief on California state prisoner Terry Bemore's claim that his counsel was constitutionally ineffective at the guilt phase, reversed the district court's denial of habeas relief with respect to Bemore's penalty phase ineffective-assistance claim, and remanded.
Regarding Bemore's argument that counsel fraudulently misappropriated and diverted court-issued funds supplied to the defense thereby creating a conflict of interest, the panel held that without a showing that counsel's misuse of funds caused him to investigate less thoroughly than he otherwise would have, Bemore has not established any constitutional deprivation under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
The panel held that counsel provided constitutionally deficient representation at the guilt phase by presenting a weak alibi defense after failing to investigate either that defense or a mental health alternative. The panel concluded, however, that Bemore did not suffer the requisite prejudice to the guilt verdict as a result, and that the California Supreme Court's rejection of this guilt-phase claim was not an objectively unreasonable application of Strickland v. Washington, 466 U.S. 674 (1984).
The panel held that counsel provided constitutionally deficient representation at the penalty phase in that counsel's early decision to pursue a risk-fraught " good guy" mitigation strategy did not satisfy her duty first to unearth potentially mitigating mental health evidence. The panel held that in deferring to counsel's decision not to pursue a mental health mitigation case despite counsel's unreasonable investigation, the California Supreme Court unreasonably applied Strickland. The panel concluded that Bemore was so substantially prejudiced by the constitutionally deficient deprivation of adequate representation at both stages that it was unreasonable for the state court to have left the death penalty in place. The panel wrote that mitigation mental health evidence, combined with a different guilt phase strategy, might well have influenced the jury's appraisal of Bemore's moral culpability, and that the state court's contrary conclusion constituted an unreasonable application of Strickland.
With regard to the guilt phase ineffective-assistance claim, the panel held that the district court did not abuse its discretion in denying Bemore's motion for an evidentiary hearing and discovery. With regard to the penalty-phase ineffective-assistance claim, the panel wrote that its conclusion that declarations and other evidence already in the record support Bemore's claim obviates any need to remand for discovery.
The panel remanded to the district court with instructions to grant the petition for a writ of habeas corpus with respect to the penalty phase and to return the case to the state court to reduce Bemore's sentence to life without parole, unless the state elects to pursue a new capital sentencing proceeding within a reasonable amount of time as determined by the district court.
The panel addressed Bemore's other asserted grounds for relief in a concurrently filed memorandum disposition.
Robert R. Bryan (argued) and Cheryl J. Cotterill (argued), Law Offices of Robert R. Bryan, San Francisco, California, for Petitioner-Appellant.
Holly D. Wilkens (argued), Supervising Deputy Attorney General; Kamala D. Harris, Attorney General; Julie L. Garland, Senior Assistant Attorney General; Robin Urbanski, Deputy Attorney General, San Diego, California, for Respondent-Appellee.
Before: Stephen Reinhardt, Ronald M. Gould, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Berzon.
Marsha S. Berzon, Circuit Judge:
Terry Bemore was sentenced to death for the murder of Kenneth Muck, a employee at Aztec Liquor in San Diego. His co-defendant, Keith Cosby, was tried by a separate jury and sentenced to twenty-five years to life for the same crime. Bemore seeks habeas relief on the grounds that his trial lawyers were constitutionally ineffective for: presenting a flawed alibi defense; failing to challenge the torture special circumstance; presenting no evidence of mental impairments at the guilt phase or penalty phase; and creating a conflict of interest by diverting state-paid defense funds for personal use. See Strickland v. Washington, 466 U.S. 674, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We hold that counsel provided constitutionally deficient representation at the guilt phase, but Bemore did not suffer the requisite prejudice to the guilt verdict as a result. With regard to the penalty phase, however, Bemore was both deprived of the representation guaranteed by the Sixth Amendment and so substantially prejudiced by the constitutionally deficient deprivation of adequate representation at both stages that it was unreasonable for the state court to have left the death penalty in place.
We therefore affirm in part, as to the district court's denial of the habeas corpus petition challenge to Bemore's conviction for murder. We reverse in part, as to the district court's denial of the habeas petition with regard to the penalty phase claim.
A. The Crime
Around 10:00 pm on August 26th, 1985, Kenneth Muck was ending his shift as a clerk at Aztec Liquor. Before locking up for the night, Muck was supposed to set a burglar alarm and transfer cash from the store register to a safe in a back-room storage area. At some point after 10:15 pm, the security company that monitored the alarm system called Aztec's owner to notify him that the alarm had not yet been set. The owner sent an employee to check on the store. The employee walked in, saw blood near the storage room, fled, and immediately called the police.
The police found Muck dead on the floor of the storage room, stabbed thirty-seven times. The safe was gone. Smeared
blood and striation marks on the floor indicated that the safe had been tipped onto a mop and pushed or dragged out the door. Officers noted two sets of bloody footprints, one of which, an expert determined, was made by men's size thirteen tennis shoes.
Two months after the robbery and murder, a local TV show, Crime Stoppers, ran a segment seeking information about the Aztec crimes. Patti Hill, girlfriend of Bemore's friend Jackie Robertson, contacted Crime Stoppers and conveyed her suspicion that Bemore and his friend Keith Cosby were involved. She provided to the police several money bags and a knife Bemore had left in Hill and Robertson's apartment, as well as a mop Bemore had thrown into a dumpster. The owner of Aztec Liquors identified the mop and money bags as identical to those stolen from the store.
Not long afterwards, Cosby was driving Bemore's car and crashed it into someone's yard. Cosby was taken into custody, and a detective obtained a warrant to search the car. Found in the trunk during the search were two knives and two pairs of shoes, size twelve or thirteen. Cosby eventually admitted he was at Aztec Liquors the night of the robbery, but told police Bemore had committed the murder while he waited outside.
Cosby and Bemore were both charged with first degree murder (Cal. Pen. Code § 187), robbery (Cal. Pen. Code § 211), and burglary (Cal. Pen. Code § 459), along with two special circumstances: murder in the commission of a robbery and intentional murder involving torture. The trials were severed; Cosby went to trial first. He was convicted of both Aztec crimes and also of another murder-robbery, tried concurrently. With respect to the Aztec murder, the jury did not unanimously find true the special circumstances of torture and murder in the commission of a robbery. Cosby was sentenced to twenty-five years to life for Muck's murder.
B. Trial - Guilt Phase
Bemore was then tried separately. The prosecution centered its case on the testimony of residents of the Bates Street neighborhood who knew Bemore. Bates Street was known to be " a marginal neighborhood whose inhabitants generally knew one another and were involved in the sale and use of crack cocaine." People v. Bemore, 22 Cal.4th. 809, 821, 94 Cal.Rptr.2d 840, 996 P.2d 1152 (2000). Taken together, the Bates Street residents testifying at trial placed Bemore on Bates Street the night of the murder, wearing shoes similar to the size thirteen sneakers whose footprints were left at the crime scene, and with fresh scratches on his back. Bemore's friends Troy Patterson and Jackie Robertson admitted to helping Bemore and Cosby drill a hole in the stolen safe. Several witnesses testified that Bemore had made statements to them implicating himself in Muck's murder.
In support of the torture special circumstance allegation, the prosecution's expert witnesses testified about the circumstances
and details of the murder. The forensic pathologist who performed the autopsy, for example, concluded that Muck was likely restrained for some period of time during the attack. He opined that at least two knives were used to cause the thirty-seven wounds and that both knives recovered from Bemore's trunk were consistent with at least some of the wounds. A crime scene reconstructionist concluded using blood spatter patterns that fifteen to thirty minutes passed from the initial assault to the last blow. At closing argument, the prosecution suggested that the evidence indicated that Bemore and Cosby had restrained and tortured Muck for the purpose of " forc[ing] [him] to open up the safe."
The defense, led by appointed counsel Robert McKechnie, presented few witnesses, relying primarily on Bemore's own testimony. Bemore's primary defense was a novel alibi.
According to Bemore, he was committing another robbery at the time of the Aztec crimes. Bemore told the jury that at approximately 9:00 pm on the evening of Muck's death, he, Patterson, and Cosby drove to a K-Mart to case it for a robbery. While he was inside, Patterson and Cosby took off in his car. Left with no car and no cash, Bemore walked to a nearby Wherehouse Records store and robbed one of the clerks. He then got into a cab and went to buy cocaine, eventually returning to Bates Street to smoke the cocaine and to buy more.
Some (unspecified) time later, Bemore went on, he saw Cosby and Patterson drive past in his car with a blood-covered safe in the backseat. He helped his friends carry the safe to his garage, assisted them in opening it, and convinced them to give him a share of the money inside. Despite the earlier testimony of several Bates Street residents that ...