Federal Habeas Claims of “New Evidence” of Undisclosed Exculpatory Evidence Should be Remanded to State Courts
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In January 1982, Scott Lynn Pinholster, a California native, was an Aryan Brotherhood-type who, along with two like-minded cohorts, went to the home of a local drug dealer named Michael Kumar. The drug dealer was not at home when the Neo-Nazi trio arrived so they began to ransack the residence in search of drugs and money. At this inopportune time, two of Kumar’s friends, Thomas Johnson and Robert Beckett, arrived at the drug dealer’s home where they confronted the burglars. That confrontation led to Pinholster and his cohorts brutally beating and repeatedly stabbing Johnson and Beckett until they were dead.
The total net of the robbery was $23 and approximately a quarter ounce of marijuana. As the trio drove away from the scene, Pinholster reportedly said: “We got ‘em, man, we got ‘em good.”
Two weeks later one of Pinholster’s cohorts, Art Corona, surrendered to the police and named Pinholster as the mastermind of the Kumar residence robbery/double murder. Pinholster was arrested after which he threatened to have Corona killed if he did keep his mouth shut. The threat did little, if anything, to intimidate Corona who became the State’s key witness against Pinholster at his February 1984 trial. Two attorneys, Harry Brainard and Wilbur Dettmar, were appointed to represent Pinholster, but he rebuffed their representation and elected to represent himself—even though the prosecution had noticed him that it would seek the death penalty.
Pinholster testified in his own behalf during guilt phase of his trial. He admitted burglarizing Kuman’s residence and stealing some marijuana. He denied killing anyone, boasting to the jury that he was a “professional robber,” not a murderer, and insisting that during the hundreds of robberies he had committed during the previous six years he was always armed with a gun, not a knife. He also pointed the finger at Corona as the real killer of Johnson and Beckett.
The jury was not impressed. They convicted Pinholster of two counts of first degree murder—a verdict that made him eligible for the death penalty. The same jury that convicted him was charged with the responsibility of determining during the “punishment phase” what sentence was appropriate. The prosecution called eight witnesses who testified about Pinholster’s history of threatening and violent behavior, which included an assault on police, involvement in juvenile street gangs, and a bad prison disciplinary record.
Facing the very real prospect of a death sentence, Pinholster decided he needed legal representation during the punishment phase. Brainard and Dettmur called one witness: Pinholster’s mother who testified about his “troubled childhood,” although she said he was a “perfect gentleman at home.” Even though they had consulted with Dr. John Stalberg six weeks prior to the trial, Brainard and Dettmur did not call the psychiatrist to testify. They were apparently concerned the Dr. Stalberg’s diagnosis of Pinholster would have a negative impact on the jury; namely, that while Pinholster’s “psychopathic personality traits” were sufficient enough to cause him to suffer from an “anti-social disorder,” he “was not under the influenced of extreme mental or emotional disturbance at the time of the murders.”
The jury recommended the death penalty and Pinholster was subsequently sentenced to death. The California Supreme Court upheld his conviction and sentence on February 20, 1992. In August 1993, represented by new counsel, Pinholster filed his first habeas corpus petition in the state trial court. New counsel alleged that Brainard and Dettmur had been ineffective during the punishment phase because they did not investigate and present mitigating evidence, some of which concerned Pinholster’s “mental disorders.” New counsel supported the ineffective assistance claim with school, medical and legal records as well as declarations from psychiatrist Dr. George Woods who diagnosed Pinholster with “bipolar mood disorder and seizure disorders.” Even more significant, Dr. Woods criticized Dr. Stalberg’s conclusions as “incompetent, unreliable, and inaccurate.” The California Supreme Court summarily denied Pinholster’s habeas application saying the ineffective assistance claim against Brainard and Dettmur was “without merit.”
In April 1997, new counsel filed a federal habeas petition, raising the same ineffective assistance during punishment phase but augmenting it with the additional allegation that Brainard and Dettmur had failed to provide Dr. Stalberg with enough “background material” on Pinholster to make an adequate diagnosis. This petition was supported by a declaration from Dr. Stalberg stating that in 1984 Brainard and Dettmur had only provided him with some police reports and a 1978 probation report. Dr. Stalberg declaration stated that had he been aware of the new background material developed by new counsel, he would have conducted “further inquiry” before making the anemic finding that Pinholster suffered “only from a personality disorder.” The psychiatrist added that Pinholster’s school records indicated “some degree of brain damage.” Still, Dr. Stalberg did not “retract” his initial diagnosis.
All the parties involved in the federal habeas petition stipulated that Dr. Stalberg’s declaration had never been presented to the California Supreme Court. The federal district court issued a ruling holding Pinholster’s habeas petition in abeyance to give new counsel an opportunity to present the Stalberg declaration to the California Supreme Court. New Counsel filed a second state habeas application with that court in August 1997 only to see it, like the first petition, unanimously and summarily denied for the same reason: the ineffective assistance claim was “without merit.”
In November 1997, new counsel filed an “amended petition for a writ of habeas corpus” in the federal district court. The penalty phase ineffective assistance claim was identical to the one he had presented to the California Supreme Court. The federal district court concluded that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) did not control Pinholster’s ineffective assistance claim and ordered an evidentiary hearing. Prior to this hearing, the State deposed Dr. Stalberg who stated that none of the new materials provided by new counsel altered his “original diagnosis” and took issue with Dr. Woods’ “bipolar disorder” diagnosis. New counsel called two new “medical experts”: Dr. Sophia Vinogradov, a psychiatrist, and Dr. Donald Olson, a pediatric neurologist. Ruling out Dr. Stalberg’s anti-social personality disorder, Dr. Vinogradov stated that Pinholster suffered from “organic personality syndrome” while Dr. Olson said the condemned inmate suffered from “partial epilepsy and brain injury.”
The federal district court said pre-ADEPA standards applied to Pinholster’s ineffective assistance of counsel and, therefore, he was entitled to habeas relief. While Pinholster’s case was percolating at the district court level, the U.S. Supreme Court, in Woodford v. Garceau, handed down a decision in March 2003 that clarified ADEPA’s application to state prisoners like Pinholster. While the district court took note of the Woodford decision and applied the stricter AEDPA standards [a state court decision denying habeas corpus cannot be overturned by a federal court unless the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law”] the court stuck by its original ruling that Pinholster was entitled to habeas relief. A three-judge panel of the Ninth Circuit Court of Appeals in May 2008 overruled the district court and held that Pinholster was not entitled to habeas relief.
However, in February 2009, an en banc panel of the Ninth Circuit overturned the three-judge panel decision and reinstated the district court’s order granting habeas relief to Pinholster. Essentially, the en banc panel held that a federal court could consider “new evidence” in determining whether a state habeas decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.” The en banc panel added that “Congress did not intend to restrict the inquiry under [AEDPA] only to the evidence introduced in the state habeas court.”
The Pinholster case worked its way to the U.S. Supreme Court which, on April 4, 2011, held that “review under [AEDPA] is limited to the record that was before the state court that adjudicated the claims on the merits.”
The implications of the Pinholster decision are scary. New evidence either discovered or developed after a state prisoner has presented a habeas petition to state court and had the petition denied, would be precluded from raising the claim in any subsequent federal proceeding. Worse yet, a state court could do as the California did in the Pinholster case: summarily deny habeas relief without conducting an evidentiary hearing to determine the value and credibility of newly-discovered evidence.
And apparently Pinholster would also apply to newly-discovered evidence of prosecutorial misconduct involving Brady violations.
But not so fast. There may be a loophole in this draconian decision.
The Ninth Circuit, in Gonzales v. Wong, on December 11, 2011 put the brakes on Pinholster, possibly negating Brady violation claims altogether. In that case Jesse Gonzales was convicted in a California state court of first degree murder and, like Pinholster, was sentenced to death. Gonzales was convicted a killing a police officer during a forceful entry and search by a contingent of law enforcement officers, all of whom were dressed in civilian clothing. After the California Supreme Court heard and rejected a Brady violation claim, Gonzales obtained evidence which bolstered that claim. The Brady violation claim centered on a jailhouse snitch named William Acker who testified during the punishment phase that Gonzales had confided in Acker that he had intended to kill the sheriff’s deputy. Some discovery material relating to Acker was turned over to the defense prior to trial, but other material concerning the informant’s credibility and mental state were not given to the defense. This non-disclosed material was discovered during the federal habeas proceeding. The Ninth Circuit had this to say about this newly-discovered evidence:
“Under Pinholster, we may not consider those later-discovered materials in reviewing Gonzales’s federal habeas claim. Because it appears to us that those materials strengthen Gonzales’s Brady claim to the point that his argument would be potentially meritorious—that is, that a reasonable state court might be persuaded to grant relief on that claim—it is not appropriate for us to ignore those materials. We remand that portion of the case to district court with instructions to stay the proceeding in order to given Gonzales an opportunity to return to state court and present his claim with the benefit of the materials that were not available and not part of the record at the time of the California Supreme Court decision.”
Thus, the issue squarely before the Ninth Circuit was what, if any, consideration should be given to a Gonzales-like claim in light of Pinholster. The court resolved this thorny issue as follows:
“Gonzales argues that Pinholster’s limitation of our review to the record before the state court does not apply to his Brady claim based on the psychological report because it is a ‘new claim not decided on the merits by the California Supreme Court. In Pinholster the Court referenced but declined to draw the dividing line between a ‘new claim’ and a claim decided on the merits by the state court and subject to review under [AEDPA]. Justice Sotomayor’s dissent in Pinholster questioned how the Court holding would apply to a hypothetical situation somewhat similar to the one before us: a petitioner who diligently pursued a Brady claim in state court is denied relief on the grounds that withheld evidence presented in the Brady claim was not material, but subsequently is able to force production of additional undisclosed exculpatory evidence … The majority opinion written by Justice Thomas responded to Justice Sotomayor’s concern by noting that ‘Justice Sotomayor’s hypothetical involving new evidence of withheld exculpatory witness statements may well present a new claim,’ but stated that it did ‘not decide where to draw the line between new claims and claims adjudicated on the merits.’
“Under the circumstances, we conclude that Pinholster applies here and prevents us from considering the new evidence in reviewing Gonzales’s Brady claim under [AEDPA]. Gonzales raised and the state court explicitly rejected a Brady claim regarding information about Acker. Moreover, the suggestion that Gonzales has presented a ‘new claim’ inherently invites questions regarding exhaustion. In light of Pinholster’s emphasis on the primary responsibility of the state court, we conclude that the new evidence needs to be presented to the state court before it can be considered by us on habeas review of the state court’s decision.
“That does not mean that we can or should disregard the new evidence, however. We cannot fault Gonzales for a lack of diligence with respect to the withheld reports. Responsibility for the late appearance of those documents lies with the state. Despite discovery requests by Gonzales’s trial counsel and the inherent obligation of the prosecutor to turn over exculpatory material, these reports were withheld. Gonzales made further discovery requests while pursuing post-conviction relief in state court, but the California Supreme Court granted the State’s request to set aside the trial court’s order permitting the discovery. That court did so while expressing its expectation that prosecutors would voluntarily and promptly turn over any such evidence, but that expectation was not fulfilled. For us simply to ignore those materials that did not emerge until the federal habeas proceedings would be to reward the prosecutors for withholding them.”
Once again, as we have illustrated in a number of recent posts, you have state prosecutors not only withholding material exculpatory evidence but fighting in the court to keep the material from being discovered. While most of the district and circuit decisions decided in the wake of Pinholster have focused on the primary intent of the decision—further erecting virtually insurmountable obstacles to keep state prisoners from gaining federal habeas review—these courts will inevitably have to face Brady violation claims as those set forth in Gonzales. What will they do?
The Ninth Circuit used an escape hatch to effectively circumvent Pinholster. While paying deference to the Supreme Court mandate, the appeals court concluded that “new evidence” claims must be remanded to state courts for adjudication on the merits. Others circuits, like the Fifth Circuit, will not be so gracious. We suspect the harshly conservative circuits like the Fifth, Fourth and Seventh will use Pinholster to avoid having such new evidence claims developed and to further insulate prosecutorial misconduct from judicial scrutiny.
In time, the U.S. Supreme Court will be forced to do what it should have done in Pinholster and decide where to draw the line between new claims and claims adjudicated on the merits.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specilization