[00:00:17] Speaker 01:
United States Court of Appeals for the Ninth Circuit is now in session.

[00:00:20] Speaker 01:
Please be seated.

[00:00:26] Speaker 05:
Good afternoon, everyone.

[00:00:28] Speaker 05:
This is the time and place set for argument in the case of Beeler versus Broomfield.

[00:00:33] Speaker 05:
Counsel, please proceed.

[00:00:35] Speaker 04:
Good afternoon, Your Honors.

[00:00:37] Speaker 04:
May it please the Court, Marta Van Landingham appearing on behalf of Petitioner Appellant Rodney Jean Beeler.

[00:00:44] Speaker 04:
I'd like to reserve 10 minutes for rebuttal, and I'll keep an eye on my time.

[00:00:47] Speaker 05:
All right.

[00:00:48] Speaker 05:
Thank you, Counsel.

[00:00:49] Speaker 04:
Your honors, I'd like to begin by reading two short quotes from judges who have previously examined this case and its claims.

[00:00:57] Speaker 04:
First, the district court judge, even as he denied Mr. Bueller's petition, felt the need to express his frustration that this was a death penalty case, writing that he found it, and I quote here, troubling that this crime

[00:01:12] Speaker 04:
a botched robbery by a man with no prior murders resulting in a single shooting death needed to be charged as a capital case.

[00:01:21] Speaker 05:
But counsel, of course, we can't alter that charging decision.

[00:01:25] Speaker 05:
So what do you think we can do with that information in terms of what our task is?

[00:01:32] Speaker 04:
Well, one of our claims here, a non-certified claim, is a narrowing claim, which looks at the fact that

[00:01:39] Speaker 04:
the Supreme Court has mandated that the eligibility for the death penalty be genuinely narrowed.

[00:01:50] Speaker 04:
And here it clearly was not.

[00:01:53] Speaker 04:
From Furman to Gregg and many other cases on down, they looked at a system in which almost any murder could be charged as a capital case.

[00:02:06] Speaker 04:
yet very very few actually were and found that that resulted in a system in which the death penalty was capricious and arbitrary and they required all of the states to change their death penalty at the legislative level to ensure that it not be so capricious and arbitrary that it be narrowed at eligibility stage and here again i think a lot of the

[00:02:32] Speaker 04:
uncertainty about this case is that it's not narrowed.

[00:02:34] Speaker 04:
It's not a clear worst of the worst case.

[00:02:37] Speaker 05:
Counsel, am I to take from your argument that your strongest argument is on an uncertified claim?

[00:02:43] Speaker 04:
No, Your Honor.

[00:02:44] Speaker 04:
I understand the practicalities involved in looking at that narrowing claim.

[00:02:49] Speaker 04:
And while I think it is a very, very serious matter that California has such a wide open death penalty, I would like to turn to my next quote from one of the judges who looked at this case below.

[00:03:02] Speaker 04:
Judge Kennard of the California Supreme Court and her words regarding the jury coercion claim, which is the one I would like to address first, if your honors are okay with that.

[00:03:13] Speaker 02:
Do you feel that the jury coercion claim, which is an uncertified claim, is stronger than the certified claims?

[00:03:20] Speaker 04:
Well, one of the issues that I think might make it stronger is that it is de novo review, not under ADPA.

[00:03:30] Speaker 04:
And we can, would you like me to jump right into that?

[00:03:36] Speaker 02:
Well, no, it's your time, so if you choose to lead with that, that's fine.

[00:03:40] Speaker 02:
I just wanted to see your perspective in terms of the strength of the claims in this case.

[00:03:45] Speaker 02:
Go ahead and address the jury coercion claim then.

[00:03:48] Speaker 04:
No, I do think it is a very strong claim.

[00:03:50] Speaker 04:
And I will go ahead and start with her words, if that's OK.

[00:03:53] Speaker 04:
She wrote in her dissent.

[00:03:55] Speaker 04:
And by the way, she was one of three out of seven total California Supreme Court justices.

[00:04:01] Speaker 04:
And the three dissented all quite strongly.

[00:04:04] Speaker 04:
And she wrote, because reason, principle, and common human experience teach us that a deadline for deliberation and the death of a father are both substantial impediments to calm dispassionate

[00:04:17] Speaker 04:
focused decision making.

[00:04:19] Speaker 04:
Because the trial court took no steps to ameliorate the impact of these impediments, and because nothing in the record shows that these impediments did not have their ordinary and expected effects in this case, I would reverse the death penalty judgment.

[00:04:35] Speaker 04:
So this claim nearly evenly divided the California Supreme Court, even though it reviewed the case under extremely lenient state law standard about abuse of discretion

[00:04:47] Speaker 04:
in not dismissing the juror whose father had died.

[00:04:52] Speaker 04:
So at that time, the evidence shows that the jury was divided on penalty.

[00:04:57] Speaker 04:
But then the trial judge sent a juror

[00:04:59] Speaker 04:
to tell the rest of the jury at the beginning of the day's deliberation that his father had just died, that he was leaving town in a couple of hours, and that if they didn't, quote, get this done right away, deliberations would be recessed for the rest of the week, from Tuesday until the following Monday, requiring the jury to reconvene after the jurors had been told that they could expect to begin their summer vacations.

[00:05:26] Speaker 04:
So facing this sudden near immediate deadline,

[00:05:29] Speaker 04:
the jury reached a death verdict within minutes.

[00:05:32] Speaker 04:
And that sort of coercion of a claim, that external pressure on deliberations, which had been ongoing for a couple of days at that point, is very much against

[00:05:44] Speaker 04:
precedent, including Lowenfield v. Phelps, although here we don't need clearly established federal law because it's a de novo review.

[00:05:52] Speaker 03:
On that issue though, counsel, how do you deal?

[00:05:58] Speaker 03:
We're supposed to presume that the

[00:06:04] Speaker 03:
state court considered the federal claim if they were addressing the equivalent of the state law claim, and here the dissent did talk about

[00:06:19] Speaker 03:
California and federal Constitution.

[00:06:21] Speaker 03:
So there's some reason to believe that the California Supreme Court was considering, you know, the equivalent federal claim, which would then push us into Edput Review.

[00:06:33] Speaker 03:
So can you address that concern?

[00:06:35] Speaker 04:
Absolutely, Your Honor.

[00:06:37] Speaker 04:
The text of the

[00:06:40] Speaker 04:
The direct appeal opinion from the California Supreme Court focuses solely on California Penal Code Section 1089, again about abuse of discretion.

[00:06:50] Speaker 04:
It mentions two cases which themselves were decided only on state law grounds.

[00:06:56] Speaker 04:
But more concretely and directly, you have Judge Kennard saying in her dissent,

[00:07:03] Speaker 04:
The majority analyzes the trial court's conduct in directing the jury to continue deliberations in the manner it did after the death of Michael C.'

[00:07:11] Speaker 04:
's father solely in terms of penal code section 1089.

[00:07:17] Speaker 04:
And then she goes on to say, more fundamental constitutional rights, however, are also implicated by the trial court's course of action in her dissent.

[00:07:28] Speaker 04:
the Johnson v. Williams presumption is rebuttable as that opinion states clearly and here we have a very clear rebuttal of any indication of federal constitutional principles and it's possible that and there's also the fact that the dissent was before the majority when they reached their decision and they chose even with that

[00:07:54] Speaker 04:
chiding note from Justice Kennard to continue with the state law grounds.

[00:08:01] Speaker 04:
And it's perhaps because the constitutional principles would have been more difficult and might have required the state to prove beyond reasonable doubt that the error was not harmless.

[00:08:13] Speaker 04:
So maybe they didn't want to tackle it on that basis.

[00:08:16] Speaker 04:
That's pure speculation.

[00:08:17] Speaker 04:
But there is nothing on the record to show that it was anything other than a state law basis.

[00:08:24] Speaker 02:
Well, to some extent it's speculative that the majority didn't implicitly address the federal constitutional ground.

[00:08:32] Speaker 02:
Correct?

[00:08:34] Speaker 02:
Well, certainly you could see it that way, but justice cannot.

[00:08:37] Speaker 02:
The only indication to rebut the presumption is one dissenting justice's articulation of what she perceived as the primary basis for the majority ruling.

[00:08:51] Speaker 02:
Is that fair to say?

[00:08:53] Speaker 04:
Yes, it is.

[00:08:53] Speaker 04:
And the text itself, which has absolutely zero indication.

[00:08:58] Speaker 04:
of consideration of federal constitutional principles.

[00:09:02] Speaker 04:
It's very clearly directed at the words of the 1089 statute and such.

[00:09:07] Speaker 02:
What do we do with the procedural default issue?

[00:09:11] Speaker 04:
There are a number of problems with the procedural default.

[00:09:16] Speaker 04:
First of all, the state in the supplemental reply only claims that the procedural default applies to the declarations, the four juror declarations that were submitted to bolster this claim on state habeas.

[00:09:37] Speaker 04:
He does the state does not say the claim itself is defaulted only those so does that mean that we don't consider the additional juror declarations actually your honor we do number one

[00:09:51] Speaker 04:
First of all, that default allegation by the state now is waived, because it was only raised at this reply.

[00:09:58] Speaker 04:
It was not raised before the district court.

[00:10:00] Speaker 04:
Before the district court were only the words, and this was early on in a motion to dismiss based on procedural default, where the state listed the California Supreme Court's own words.

[00:10:15] Speaker 04:
So at that point, they claimed the entire juror

[00:10:22] Speaker 04:
claim was waived, was defaulted, not just the supporting declarations.

[00:10:28] Speaker 04:
And second of all, the default itself should not apply, because federal doctrine says that there is no default unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on the state procedural bar.

[00:10:47] Speaker 04:
Here you've got in

[00:10:51] Speaker 04:
the state habeas opinion.

[00:10:52] Speaker 04:
Number one, they say claim F, the entire claim, is untimely.

[00:10:58] Speaker 04:
That is factually impossible considering that claim F was initially presented on direct appeal, not on state habeas.

[00:11:06] Speaker 04:
So it could not have been untimely as a whole because it was on direct appeal.

[00:11:11] Speaker 04:
Number two, they say one portion of the claim referring to issues with Jura Mikoski is untimely.

[00:11:20] Speaker 04:
This is not the claim here with the coercion.

[00:11:23] Speaker 04:
And number three, so that shows that if they had wanted to say only the portion of the claim that was new on habeas, i.e.

[00:11:36] Speaker 04:
the declarations were untimely, they could have.

[00:11:39] Speaker 04:
But then the next indication that the procedural default is not clearly and expressly applied is that two of the justices on habeas

[00:11:48] Speaker 04:
would have granted an order to show cause on this portion, the jury coercion portion of the claim, including the jury declarations.

[00:11:57] Speaker 04:
So that shows that they were taking them into account and not considering them untimely.

[00:12:02] Speaker 04:
So OK, number one, procedural default is waived.

[00:12:05] Speaker 04:
Number two, not clearly and expressly applied, so not inapplicable.

[00:12:10] Speaker 04:
And number three, even if the declarations were

[00:12:15] Speaker 04:
not to be taken into account, the record, the rest of the record, still establishes the claim of jury coercion.

[00:12:25] Speaker 04:
I know that was a lot.

[00:12:27] Speaker 04:
I can clarify if there's any portion of that that you'd like more about.

[00:12:35] Speaker 02:
I think what you're saying is that the language referring specifically to McCoskey means that claim

[00:12:45] Speaker 02:
the procedure of default ruling was only limited to the McCloskey issue.

[00:12:49] Speaker 02:
Is that what you're saying?

[00:12:50] Speaker 04:
Correct.

[00:12:51] Speaker 04:
Only that was untimely because that had been added later, as had to the coercion portion, the declarations.

[00:13:00] Speaker 04:
But they did not default the declarations or the coercion portion.

[00:13:05] Speaker 04:
And like I said, the allegation that the declarations alone are defaulted only appeared as part of this appeal.

[00:13:16] Speaker 04:
that I could find.

[00:13:17] Speaker 04:
I mean, maybe the state can correct me on that.

[00:13:20] Speaker 02:
Assuming you're right that there's no procedural default here, is it fair to say that the best you have on this record are really conflicting jury declarations slash statements?

[00:13:35] Speaker 02:
Because the trial court did specifically ask

[00:13:40] Speaker 02:
the jurors, whether they were influenced by the death of Coley, whether they felt rushed in any way, nobody said a word.

[00:13:49] Speaker 02:
And that was right there, contemporaneous with the verdict.

[00:13:52] Speaker 02:
The foreperson said it.

[00:13:54] Speaker 02:
Nobody said anything to the contrary.

[00:13:57] Speaker 02:
And I think the court even went further to say, does anybody disagree with that?

[00:14:01] Speaker 02:
And nobody said, I felt rushed.

[00:14:04] Speaker 02:
So now we've got these few declarations saying, well, it was suggesting that it potentially was a factor.

[00:14:11] Speaker 02:
So we have conflicting declaration.

[00:14:16] Speaker 02:
And is the state court owed no deference on that record?

[00:14:20] Speaker 04:
Right.

[00:14:22] Speaker 04:
First of all, I mean, I have here the text of the polling.

[00:14:26] Speaker 04:
But instead of reading that to you, I think I'd rather share Justice Kennard's words on the poll itself, on how it worked.

[00:14:34] Speaker 04:
She said, the trial court's inquiry was cursory and ineffectual, consisting of only two questions to the panel as a whole.

[00:14:43] Speaker 04:
Only the jury four person answered.

[00:14:45] Speaker 04:
The trial court did not ask any questions individually of juror Michael C or any other juror.

[00:14:52] Speaker 04:
The manner in which the trial court framed the two questions it asked of the panel as a whole put the burden on any juror who disagreed with the four person's response to volunteer that disagreement and disown before the other jurors the verdict they had all just agreed to moments before.

[00:15:10] Speaker 04:
And that is effectively what happened.

[00:15:14] Speaker 04:
Not an adequate

[00:15:15] Speaker 04:
assertion of lack of coercion on the basis of the circumstances.

[00:15:23] Speaker 04:
And with regard to the inconsistent, the district court did agree with the state in declaring them inconsistent, but it did not note that they were consistent considering the disruption being due to the juror, to his coming in and his father's death requiring the end of the

[00:15:45] Speaker 04:
deliberations, and all of the declarations did show that there was an impact on at least two or three of the jurors.

[00:15:53] Speaker 04:
And per the law, there needs to only be grave doubt as to whether even one had his or her vote impacted by the change in circumstances.

[00:16:07] Speaker 04:
So even if they don't all say we were impacted, number one, it doesn't even need to be a conscious process of changing their vote, and it need only apply to one.

[00:16:19] Speaker 04:
So the declarations do show that.

[00:16:21] Speaker 04:
And this court can, in reviewing de novo, take into account the declarations, because they were before the state court.

[00:16:28] Speaker 04:
They have been exhausted.

[00:16:32] Speaker 04:
So.

[00:16:34] Speaker 04:
Unless there are further questions on that issue, we could move on to one of the other claims.

[00:16:42] Speaker 04:
And I believe my next strongest claim to be IAC for failure to investigate evidence of organic brain damage in order to attack

[00:17:00] Speaker 04:
the intent to kill requirement of the special circumstance under which Mr. Wheeler was sentenced to death.

[00:17:06] Speaker 04:
At that time, California was within what's referred to as the Carlos window.

[00:17:12] Speaker 04:
After Carlos v. Superior Court added an intent to kill requirement to any special circumstance.

[00:17:21] Speaker 04:
And that was overturned four years later.

[00:17:24] Speaker 04:
But for this trial, that requirement was in place.

[00:17:29] Speaker 04:
And it meant that the state had the burden of proving to all of the jurors unanimously, beyond a reasonable doubt, that Mr. Beeler intended to kill Mr. Stevenson in the course of the crime.

[00:17:48] Speaker 04:
And had the jurors known about Mr. Beeler's severe brain damage, about the severe damage to his

[00:17:59] Speaker 04:
frontal bilateral lobes and his right temporal lobe that affected his ability to plan and his judgment.

[00:18:08] Speaker 04:
at least one would have found that there was some reasonable doubt considering intent to kill.

[00:18:15] Speaker 05:
Did any of the experts opine that Mr. Bieler's brain damage would have affected his ability to form intent?

[00:18:27] Speaker 04:
Well, that would not have been appropriate had they been

[00:18:32] Speaker 04:
Had the trial counsel done their jobs as constitutionally mandated and investigated all the red flags they had about this organic brain damage, and had they put on an expert, the expert would have explained to the jury the extent of the damage and the effect on Mr. Beeler's, you know.

[00:18:50] Speaker 05:
I thought Dr. Pinkus did say in his report that Mr. Beeler had brain damage.

[00:18:58] Speaker 04:
Oh, you're correct, on habeas.

[00:19:00] Speaker 04:
That's when Mr. Pink has been hired.

[00:19:01] Speaker 04:
Oh, on habeas.

[00:19:02] Speaker 04:
Yes, at the time of trial.

[00:19:04] Speaker 05:
But even at that point, he didn't say that the brain damage affected his ability to form intent.

[00:19:10] Speaker 05:
So even post-verdict, he didn't say that it would have affected his ability to form the intent.

[00:19:17] Speaker 05:
So how does that help you?

[00:19:18] Speaker 04:
I think under California state law, a expert is not allowed to reach the final legal conclusion.

[00:19:26] Speaker 04:
All they can do is explain.

[00:19:28] Speaker 04:
the brain damage to the jurors?

[00:19:30] Speaker 05:
He can say in his opinion, in his professional opinion, the brain damage would have affected his ability.

[00:19:38] Speaker 05:
He wouldn't be able to say that he was unable to form the intent, which would be the legal conclusion, but he could say that the brain damage, in his opinion, either affected or didn't affect his ability to form intent.

[00:19:54] Speaker 04:
Exactly, and that's exactly the gravamen of our claim here.

[00:19:57] Speaker 05:
But he didn't state that in his report.

[00:19:59] Speaker 04:
Because trial counsel did not hire him.

[00:20:01] Speaker 05:
I'm saying even on habeas.

[00:20:03] Speaker 05:
So if he didn't say that on habeas, how can we say that the trial counsel was ineffective for failing to pursue this avenue if what he would have obtained would have been this information?

[00:20:20] Speaker 04:
Well, first of all, trial counsel could have retained any experts.

[00:20:24] Speaker 04:
and put them, I mean, it's not about what happens on habeas, it's what about the failure to make the argument to the jury.

[00:20:33] Speaker 05:
It is, it is in a way because it tells us whether or not the ineffectiveness affected the outcome or had a possibility or reasonable likelihood of affecting the outcome.

[00:20:46] Speaker 05:
So if there was no evidence developed

[00:20:49] Speaker 05:
that the brain damage would have affected his ability to form the intent, there would be no prejudice, and therefore no viable ineffective assistance of counsel claim.

[00:21:04] Speaker 04:
I agree, Your Honor, and I don't know.

[00:21:06] Speaker 04:
My suspicion is that Dr. Pincus was not asked to find intent to kill or not, because that would not have been a

[00:21:19] Speaker 04:
conclusion he could have presented to the jury and therefore he was not asked to include it in his post-conviction declaration because it wouldn't have been admissible at trial.

[00:21:29] Speaker 05:
So with regard to prejudice... But he did state that such brain damage can reduce the inhibiting controls and it's mitigating or even exculpatory in some cases.

[00:21:41] Speaker 05:
So he kind of ventured into that arena.

[00:21:45] Speaker 04:
Correct.

[00:21:47] Speaker 04:
My assertion and our claim is that had such evidence been presented to the jury, they then could, at least one juror, could have had reasonable doubt considering Rodney Bieler's intent to kill, especially considering the evidence about the crime itself, about the chaos in which it happened, about the ambiguity of exactly what happened, about Mr. Stevenson

[00:22:15] Speaker 04:
going after Mr. Beeler, who was closed shut into a bedroom with a rifle that he used to club against the door.

[00:22:23] Speaker 04:
All of that told to the jurors would have been compelling.

[00:22:29] Speaker 04:
And we only need at least one juror having a reasonable doubt.

[00:22:38] Speaker 04:
And with that, there would have been a reasonable probability that absent trial counsel's ineffectiveness

[00:22:46] Speaker 04:
At least one juror would have struck a different balance.

[00:22:49] Speaker 04:
And then the prejudice is that only one juror need to have had reasonable doubt, and the entire death penalty would have gone away.

[00:22:59] Speaker 04:
There would have been no eligibility for the death penalty, and Mr. Beeler would have been facing life without parole.

[00:23:05] Speaker 04:
So that is fairly stringent on-off prejudicial result in our view.

[00:23:15] Speaker 04:
Another thing I could quickly address has to do with the state court and the district court's reliance on the count of five psychiatrists.

[00:23:28] Speaker 04:
I do want to point out quickly, although it is in our briefing, that that is not correct.

[00:23:34] Speaker 04:
Trial counsel were not effective for hiring five psychiatrists.

[00:23:38] Speaker 04:
They retained two psychiatrists, two psychologists, I'm sorry, psychologists, Dr. Lenore Walker and Dr. Stephen Wells to evaluate Mr. Beeler for mitigation at penalty phase and both of them came back to trial counsel strongly suggesting that

[00:23:58] Speaker 04:
that with all the red flags of organic brain damage that they retain specialists who could actually test and evaluate that aspect, that even though on penalty they could talk to the severe trauma Mr. Bieler had suffered throughout his life.

[00:24:14] Speaker 04:
And I don't need to go into the details of that again because they're horrendous.

[00:24:19] Speaker 04:
Even in addition to that, his brain had concretely physically been damaged affecting

[00:24:28] Speaker 04:
how he would have reacted to the circumstances of the crime itself.

[00:24:32] Speaker 04:
At the time of the crime, he wouldn't have been able to process, plan, and judge.

[00:24:38] Speaker 04:
Anyway, those two psychologists, Dr. Walker and Dr. Wells, told trial counsel they needed to follow the step, and they failed to.

[00:24:46] Speaker 04:
They did not.

[00:24:48] Speaker 04:
Another psychologist, Dr. Cronella, billed for an hour.

[00:24:52] Speaker 04:
Dr. Coppett, number four here, was

[00:24:58] Speaker 04:
In fact, Dr. Walker's assistant helping her with interviews and such.

[00:25:03] Speaker 04:
And then finally, the fifth one, Dr. Adams, was a mitigation specialist who was brought on because she was an expert on sexual trauma who worked with patients at Patton State Hospital.

[00:25:16] Speaker 04:
So again, nothing about these five experts went to organic brain damage, except that they did note the red flags and urged trial counsel to follow up on that aspect.

[00:25:31] Speaker 04:
And is there anything else about this claim?

[00:25:37] Speaker 04:
Shall I move on?

[00:25:38] Speaker 04:
Oh, I have a yellow light.

[00:25:39] Speaker 04:
I think I'm at five minutes, so I should

[00:25:44] Speaker 00:
Good afternoon and may it please the court Vincent LaPietra on behalf of respondent

[00:26:08] Speaker 00:
I'd like to address my friend's points in turn.

[00:26:14] Speaker 00:
Beginning with the narrowing claim, this court has already held that a reasonable jurist could not debate that the 1978 statute narrowly defines the class of deaf eligible defendants.

[00:26:27] Speaker 00:
In this case in particular, as my friend noted,

[00:26:31] Speaker 00:
The special circumstances required intent to kill.

[00:26:34] Speaker 00:
So for that reason alone, an ordinary felony murder conducted in a residential burglary would not be eligible for the death penalty.

[00:26:43] Speaker 00:
The prosecution had to establish an intent to kill.

[00:26:46] Speaker 00:
That alone narrows the class of defendants.

[00:26:49] Speaker 00:
Turning to the coercion claim.

[00:26:53] Speaker 02:
Can you address the standard of review?

[00:26:55] Speaker 02:
I want to hear a little bit more about what your thoughts are, because as your opposing counsel points out, the state court opinion is completely silent on the federal aspect of the coercion claim.

[00:27:09] Speaker 02:
And you do have one of the dissenting justices said, look, the majority really focuses their analysis solely on penal code section 1089, I think it was.

[00:27:22] Speaker 02:
And that's a fair point, and I want to hear what the state thinks about whether that's enough to rebut the Johnson presumption.

[00:27:30] Speaker 00:
Well, I would say that this claim, that argument is foreclosed by early V Packer, in which case the United States Supreme Court said that state courts need not cite or even be aware of federal claims, just so long as the state court decision is not contrary to or an unreasonable application of that claim.

[00:27:54] Speaker 00:
So for that reason alone, I think that the state court is entitled to deference because

[00:28:01] Speaker 00:
Mr. Bieler presented it as a federal claim, and it was rejected.

[00:28:06] Speaker 00:
And so the question is whether or not the rejection was unreasonable or contrary to.

[00:28:11] Speaker 00:
But as the court noted and as my friend noted, there was a discussion between the dissent and the majority about the standard that applied, the dissent expressly stating that they thought federal law required additional scrutiny beyond the state law standard.

[00:28:26] Speaker 02:
So under your argument, then, we give Justice Kennard's statement, no force.

[00:28:32] Speaker 00:
well wait whatsoever it was certainly her view that additional uh...

[00:28:38] Speaker 00:
discussion was needed of the federal standard, but the majority disagreed and held that the state law was sufficient to safeguard any and all due process concerns.

[00:28:49] Speaker 00:
And that's certainly not unusual.

[00:28:52] Speaker 00:
State laws often are more protective or at least as protective as the federal standard, such as the case here.

[00:28:59] Speaker 00:
For example, in Lowenfeld, which is the clearly established federal law on this matter, the trial court

[00:29:09] Speaker 00:
pulled the jury and found that it was deadlocked 11 to 1, it gave an Allen charge, and the verdict was reached 30 minutes later, and that was insufficient to establish coercion.

[00:29:21] Speaker 00:
And even more on point is early V Packer, where a deliberating juror expressly asked to be excused, and the court declined that request and sent the juror back to deliberate.

[00:29:35] Speaker 00:
and the jury reached a verdict, and the United States Supreme Court said that that was insufficient to establish coercion.

[00:29:43] Speaker 00:
And in this case, there was no coercion because the jury did not ask to be excused.

[00:29:49] Speaker 00:
He asked merely to be able to leave early in order to catch a flight home for a funeral.

[00:29:54] Speaker 00:
The court said, yes, we'll be able to do that.

[00:29:57] Speaker 00:
As this court noted,

[00:29:58] Speaker 00:
before, at the concern of defense counsel.

[00:30:01] Speaker 02:
Well, it's not just the juror whose father passed away.

[00:30:04] Speaker 02:
It's the other jurors who said that he came into the room and said, OK, well, if we don't reach a verdict this afternoon, we'll have to put in an alternate, and that's going to raise all kinds of complications.

[00:30:16] Speaker 02:
And the one holdout juror said, well, I felt pressured.

[00:30:20] Speaker 02:
I didn't want to take up people's time.

[00:30:22] Speaker 02:
What do we do with that?

[00:30:25] Speaker 00:
At the risk of complicating that,

[00:30:28] Speaker 00:
I would say the court correctly noted that at the time each of the jurors were asked if this affected their judgment in any way, if they felt rushed, if they considered this, they all responded in the negative.

[00:30:39] Speaker 00:
Now when it comes to the juror declarations, those were presented to the California Supreme Court for the first time in a second state habeas petition.

[00:30:47] Speaker 00:
Mr. Council Member Bieler is correct in that, in part of the order denying relief, it says parts of claim F are denied, I believe it was Jerome McCluskey are denied, but two paragraphs down, it said the following claims are denied as untimely, and it lists several of them.

[00:31:09] Speaker 00:
One of them is claim F, unqualified.

[00:31:12] Speaker 00:
So the entirety of claim F has been procedurally defaulted in the state court.

[00:31:19] Speaker 00:
And it is for that reason that the juror declarations which were presented for the first time in the second state habeas cannot be considered.

[00:31:29] Speaker 00:
But what does survive is the claim that was presented to the state Supreme Court on direct appeal.

[00:31:35] Speaker 00:
And that claim was unsupported by declaration and was reasonably rejected.

[00:31:40] Speaker 00:
The majority and the dissent discussed federal law, thereby indicating their awareness of the issue as well as it having been raised in the opening brief.

[00:31:51] Speaker 02:
Let me make sure, let me slow you down for a second, make sure that I understand your position, because I'm reading this ABS denial and I get very confused because it specifically says claim F to the extent it challenges the failure to dismiss Mr. Mikoski is procedurally barred.

[00:32:11] Speaker 00:
Yes, Your Honor.

[00:32:11] Speaker 02:
And then it has this catch-all thing.

[00:32:14] Speaker 02:
And that's the catch-all phrase that you're relying on, the one that it says, the following claims are procedurally partisan, timely, E, F, and I, right?

[00:32:23] Speaker 00:
Yes, Ronna.

[00:32:24] Speaker 02:
And F is the coercion?

[00:32:26] Speaker 00:
F is this claim.

[00:32:27] Speaker 00:
Specifically, this is F.5A and F.5B, which were raised, I believe, in the reply brief as such.

[00:32:35] Speaker 05:
So you're making a distinction between the claim that was presented on

[00:32:40] Speaker 05:
direct appeal and the one on habeas is that the distinction are you making?

[00:32:45] Speaker 00:
I think that the claim that was presented on direct appeal was not procedurally defaulted and it was denied as meritless for the reasons stated in the direct appeal opinion that those reasons are entitled to deference and under early v packer it's clearly not unreasonable

[00:33:04] Speaker 00:
The declarations which were presented as part of the second state habeas petition, those cannot be considered because they were part of a procedurally defaulted claim.

[00:33:16] Speaker 02:
But could he have raised them on direct appeal?

[00:33:19] Speaker 00:
Well, he could have raised them in his first state habeas petition.

[00:33:23] Speaker 02:
I see.

[00:33:24] Speaker 02:
So it's really not the direct appeal issue on which he couldn't have submitted the additional declarations anyway, but the first petition you're saying he failed to raise the coercion issue and put in the declarations.

[00:33:35] Speaker 02:
So that's the basis for the procedural default.

[00:33:38] Speaker 00:
Yes.

[00:33:45] Speaker 00:
Pending any questions on the coercion claim, I'd like to turn now to the ineffective assistance of counsel claim, which is one of the certified issues.

[00:33:58] Speaker 05:
Could you address the narrowing issue?

[00:34:01] Speaker 00:
Yes, Your Honor.

[00:34:02] Speaker 00:
My position is that this court has rejected it in Mayfield v. Woodford, which is in our brief.

[00:34:09] Speaker 05:
OK.

[00:34:09] Speaker 05:
Were you going to address the failure to investigate organic brain damage?

[00:34:13] Speaker 05:
Yes, Your Honor, right now.

[00:34:14] Speaker 00:
OK.

[00:34:14] Speaker 00:
Yes.

[00:34:19] Speaker 00:
Mr. Beeler claims that counsel was ineffective for failing to investigate and present evidence of organic brain damage in the guilt phase, as was argued today.

[00:34:33] Speaker 00:
As the court noted, no

[00:34:38] Speaker 00:
evidence has been presented on in the trial court or in the habeas courts establishing that this organic brain damage affected Mr. Bueller's intent to kill.

[00:34:51] Speaker 00:
In the final request for a continuance that trial counsel filed with the state trial court, counsel specifically said

[00:35:04] Speaker 00:
I have evidence establishing that Mr. Bieler has brain damage.

[00:35:09] Speaker 00:
What I'm looking for is evidence tying that to his ability to form an intent to kill or his ability to appreciate criminality.

[00:35:19] Speaker 00:
That is that supplemental excerpts of record 77.

[00:35:25] Speaker 00:
That failing, which was recognized in the trial court, has never been cured.

[00:35:30] Speaker 00:
Simply put, there is nothing tying organic brain damage to the ability to form the intent to kill or appreciate the criminality in terms of the penalty phase.

[00:35:42] Speaker 00:
But stepping back from the arguments presented today, I just want to say

[00:35:47] Speaker 00:
Council clearly made informed tactical decision to present a defense of third party culpability, Mr. Jackley.

[00:35:59] Speaker 00:
Whether it was two psychologists or five psychologists,

[00:36:03] Speaker 00:
of mental health, mental health history, had him evaluated and decided not to present that as a defense at the penalty phase.

[00:36:21] Speaker 00:
He decided instead to present Mr. Jackley as the possible perpetrator.

[00:36:27] Speaker 00:
And I think that had he not done that,

[00:36:30] Speaker 00:
Today, we would be talking about ineffective assistance for failing to present evidence of third party culpability.

[00:36:37] Speaker 00:
And as a backup to that claim, the argument was that whoever committed this crime lacked the intent to kill because there was evidence of a struggle.

[00:36:47] Speaker 00:
It did seem as though possibly this was a rash killing.

[00:36:51] Speaker 00:
But in order to present this evidence of mental health and say that Mr. Beeler lacked the intent to kill,

[00:37:00] Speaker 00:
he would have had to personalize all of this evidence towards Mr. Beeler.

[00:37:03] Speaker 00:
We would have to present evidence that Mr. Beeler had all of these mental health history problems and, of course, would have been subject to impeachment and rebuttal from the prosecution.

[00:37:15] Speaker 00:
So the informed tactical decision

[00:37:18] Speaker 00:
I think the second guest was one that should not be second guest today, and that, frankly, in light of the lack of evidence implicating an ability to form the intent to kill, shouldn't be second guest.

[00:37:38] Speaker 05:
Council, could I go back to the accursion claim for a minute?

[00:37:41] Speaker 00:
Yes, Your Honor.

[00:37:42] Speaker 05:
What would be the standard of review on that claim

[00:37:50] Speaker 00:
It would be deference under 2254.

[00:37:53] Speaker 05:
Do you think it would be EDPA?

[00:37:55] Speaker 00:
Yes, Your Honor.

[00:37:56] Speaker 00:
Yes.

[00:38:00] Speaker 00:
Well, quite frankly, it would be EDPA as to either because the state Supreme Court denied it on the merits in the direct appeal and also in the alternative as meritless in the second state habeas petition.

[00:38:14] Speaker 00:
So the United States Supreme Court has said that state courts need not worry about such alternative rulings.

[00:38:23] Speaker 00:
It's procedurally barred, and it's also meritless that the federal courts would respect that.

[00:38:29] Speaker 00:
So even failing on the procedural bar, even ignoring the procedural bar, I should say, it was still denied as meritless.

[00:38:39] Speaker 00:
And that meritless denial is itself entitled to deference.

[00:38:43] Speaker 00:
Mr. Bieler would have to establish that there was no reasonable basis for such a denial, and in the face of Earl E. B. Packer, that's simply not the case.

[00:38:57] Speaker 00:
Unless there are any questions, Your Honor.

[00:38:59] Speaker 05:
Appears not.

[00:39:01] Speaker 05:
Rebuttal.

[00:39:02] Speaker 05:
Thank you.

[00:39:09] Speaker 04:
I have a few notes here, although if you have any particular questions you'd like to... I do.

[00:39:14] Speaker 05:
I have a particular question on the juricursion claim.

[00:39:19] Speaker 05:
Do you agree that we would be reviewing under the EPA standards?

[00:39:23] Speaker 04:
No, Your Honor, I do not.

[00:39:24] Speaker 04:
Why not?

[00:39:25] Speaker 04:
Because to state that a state court

[00:39:35] Speaker 04:
can not only explicitly review on state law claim and that would still be considered reviewing on federal constitutional principles is senseless in light of the Johnson decision.

[00:39:51] Speaker 04:
which stated that you presume federal constitutional review, but it is rebuttable.

[00:39:57] Speaker 04:
And how can you say it is both rebuttable and yet to be seen even when there's absolutely no hint, because it might have been something that one of the judges had heard somewhere at some point about the federal constitution.

[00:40:12] Speaker 04:
So I'm sorry.

[00:40:13] Speaker 04:
I put that a little bit rough.

[00:40:15] Speaker 05:
But Justice Kinnard did talk about state and federal constitutional principles, though.

[00:40:21] Speaker 04:
Correct, exactly.

[00:40:22] Speaker 04:
And that was the basis of her dissent.

[00:40:24] Speaker 04:
And that did go back to the majority.

[00:40:26] Speaker 04:
And they could have then thrown in

[00:40:31] Speaker 04:
a lip service to federal constitutional principles.

[00:40:34] Speaker 04:
They could have corrected it.

[00:40:36] Speaker 04:
They chose not to.

[00:40:37] Speaker 05:
But our cases say that the California court, the state court, does not necessarily have to discuss or be aware of the federal principles as long as their decision does not run afoul of those.

[00:40:49] Speaker 05:
What do we do with that line of cases?

[00:40:52] Speaker 04:
I say that here we're not in that line of cases because we have direct rebuttal by Justice

[00:40:58] Speaker 04:
She explicitly states.

[00:41:00] Speaker 04:
She gives us the rebuttal by saying they did not consider anything other than state law.

[00:41:05] Speaker 05:
But can we rely on a minority justice's view to make our ruling?

[00:41:15] Speaker 05:
She was right there in the middle of the discussion.

[00:41:17] Speaker 05:
She was.

[00:41:18] Speaker 05:
Yeah, but we generally don't rely on minority views to decide.

[00:41:26] Speaker 04:
Yes, I agree, but here you have the text from the majority, which shows no understanding of federal constitutional principles.

[00:41:34] Speaker 04:
You have direct rebuttal from somebody who was involved in the discussion, and you have the fact that that went back to the majority, and they still did not add.

[00:41:42] Speaker 05:
Okay, let's assume we agree with you.

[00:41:45] Speaker 05:
And then you're saying we should do de novo review?

[00:41:52] Speaker 04:
I do think this is de novo because of the state law, but I want to say that even

[00:41:56] Speaker 04:
under EDPA, you do have the majority unanimously saying that the trial court's fact-finding was faulty.

[00:42:07] Speaker 05:
Well, but it would have to be unreasonable determination of the facts.

[00:42:13] Speaker 05:
But what I wanted to ask you is about if we proceeded under EDPA, you would have to give us a clearly established Supreme Court case that supports your position.

[00:42:26] Speaker 05:
clearly established Supreme Court case that would support your position that there was jury coercion here.

[00:42:33] Speaker 04:
It, Your Honor, it starts with Lowenfield BB House.

[00:42:35] Speaker 05:
Give me your strongest case to support your argument that the facts of this case support a determination that there was jury coercion.

[00:42:46] Speaker 04:
My strongest case?

[00:42:49] Speaker 04:
There are a number here that we can choose from.

[00:42:51] Speaker 05:
Well, most of the cases you cited talked about

[00:42:56] Speaker 05:
when the jury was deadlocked and was given instructions.

[00:42:59] Speaker 05:
And that's not what happened here.

[00:43:01] Speaker 05:
So I'm not sure that that would constitute, those cases would constitute clearly established Supreme Court cases.

[00:43:07] Speaker 05:
That's why I'm asking you, what's your strongest case?

[00:43:10] Speaker 05:
Because the cases involving a deadlocked jury, in my opinion, don't get you there.

[00:43:16] Speaker 04:
I agree, Your Honor.

[00:43:18] Speaker 04:
I do think the principles established in Lonefield and other cases do get us there.

[00:43:23] Speaker 04:
But even without that, I want to go back to the majority's problems with the fact finding.

[00:43:28] Speaker 04:
Under D2, when the California Supreme Court unanimously, the majority found there was a problem with the trial court's fact finding, that should have triggered further fact finding.

[00:43:43] Speaker 05:
Did you raise an argument that there was an unreasonable determination of the facts?

[00:43:47] Speaker 04:
Correct.

[00:43:48] Speaker 05:
You raise that argument here?

[00:43:51] Speaker 05:
I think we do.

[00:43:51] Speaker 05:
I can look that up and get back to you.

[00:43:55] Speaker 02:
I'm pretty sure we raised a G2 argument.

[00:43:56] Speaker 02:
Well, at the time, in fairness, at the time of the direct appeal, they didn't have the benefit of the juror declarations, right?

[00:44:01] Speaker 02:
They just had the trial record.

[00:44:03] Speaker 02:
And in looking at the trial record, the juror came, had a conversation with the trial judge.

[00:44:08] Speaker 02:
The trial judge couldn't get in touch with the lawyers.

[00:44:11] Speaker 02:
So he said, well, continue deliberating.

[00:44:13] Speaker 02:
There was no problem to let the juror leave early to catch his 2 o'clock flight.

[00:44:18] Speaker 02:
None of the jurors piped up in response to the court's question.

[00:44:21] Speaker 02:
Did anybody feel any sort of pressure?

[00:44:23] Speaker 02:
Nobody said it.

[00:44:26] Speaker 02:
It wasn't that the majority opinion erroneously evaluated the facts.

[00:44:31] Speaker 02:
They only had one set of facts.

[00:44:33] Speaker 02:
So it wasn't until habeas that these juror declarations came in, correct?

[00:44:38] Speaker 04:
Correct.

[00:44:39] Speaker 04:
What I'm referring to is where the majority opinion talks about the polling and says that was inadequate.

[00:44:46] Speaker 04:
The majority does find the trial court's polling was inadequate fact-finding.

[00:44:51] Speaker 04:
But yet, so under D2 to not grant relief on that without on habeas later.

[00:44:59] Speaker 04:
without issuing an order to show cause is unreasonable.

[00:45:04] Speaker 04:
And under D2, we don't need clearly established federal law.

[00:45:08] Speaker 02:
And then when the habeas proceedings occurred, the second habeas proceeding, the one that resulted in the, I think, 2004 summary denial, the first line of that ruling did say the petition for writ of habeas corpus is denied on the merits, except as the claim see, which we're not talking about here.

[00:45:27] Speaker 02:
So do you construe that as denial on the merits and then they go on in the alternative to deem certain claims procedurally barred?

[00:45:37] Speaker 04:
Yes, and that merits decision is what we're calling unreasonable.

[00:45:42] Speaker 02:
But that merits decision being on the merits takes you outside of the novel review, correct?

[00:45:47] Speaker 02:
Because the state court did address it on the merits.

[00:45:50] Speaker 04:
Okay, this is where we get into the Ibarra-Canady line of cases, which takes the ILSD look-through approach and expands it, basically under ILSD and under Ibarra and Canady.

[00:46:03] Speaker 04:
What we've got here is a reasoned denial followed by

[00:46:09] Speaker 04:
unreasoned denials on the merits, and you look through to the reasoning given in the first denial.

[00:46:17] Speaker 02:
But this is where I struggle, because reading those line of cases, I didn't see anything that would apply to this factual situation, where you supplemented the claim with additional declarations.

[00:46:29] Speaker 02:
So that's why I go back to what the California Supreme Court had before it, when it ruled on the coercion issue the first time around.

[00:46:38] Speaker 02:
It was reasoned, but it was without the benefit of the fuller record and frankly portions of the record that's more favorable to your course of claim.

[00:46:51] Speaker 02:
So I don't know how logically looked through really applies in that situation.

[00:46:56] Speaker 04:
The way I read Ibarra, it does apply.

[00:46:59] Speaker 04:
So maybe I'm reading it incorrectly.

[00:47:02] Speaker 04:
But I do read Ibarra to say, were a written opinion issues followed by summary decisions and the record improves between the issuance of the reasoned opinion and the later unexplained order, then the federal court addresses the reasoning of the state court in its earlier opinion in light of the full record ultimately placed before the later state court.

[00:47:22] Speaker 04:
So again,

[00:47:25] Speaker 04:
Maybe I'm reading that incorrectly, but that's exactly how I read Ibarra to apply to this situation here.

[00:47:32] Speaker 02:
Am I correct that we, the Ninth Circuit, have never addressed a situation where supplementation of evidence turns the claim into a new claim, or is that still related to the old claim?

[00:47:43] Speaker 02:
There's no circuit law on that question, correct?

[00:47:46] Speaker 04:
Aside from Ibarra itself, because there the record improved like it does here.

[00:47:54] Speaker 05:
Did it say whether or not that constituted a new claim?

[00:47:58] Speaker 05:
Or did it say it related back to the old claim?

[00:48:01] Speaker 04:
It said it improved the record on the same claim.

[00:48:05] Speaker 04:
So Ybarra is your best case for that?

[00:48:07] Speaker 04:
Yes.

[00:48:10] Speaker 04:
I could also talk about how the prejudice on IAC penalty showed what, you know,

[00:48:16] Speaker 04:
Part of that is shown by the fact that the jurors were deliberating for a couple of days.

[00:48:23] Speaker 04:
There are a number of notes here.

[00:48:24] Speaker 04:
I don't know if you want me to.

[00:48:25] Speaker 04:
That's not unusual in a death penalty case.

[00:48:28] Speaker 05:
Correct.

[00:48:28] Speaker 04:
I agree on that.

[00:48:29] Speaker 05:
All right, counsel, you have exceeded your time.

[00:48:31] Speaker 05:
Could you sum up, please?

[00:48:35] Speaker 04:
This case, it is...

[00:48:39] Speaker 04:
Just horrifying to me.

[00:48:40] Speaker 04:
I work on a lot of cases, but this one really should not be a death penalty case.

[00:48:45] Speaker 04:
And not just because of the facts, because of the clients, because of everything about it.

[00:48:51] Speaker 04:
It's also the fact that there were a number of constitutional violations within the trials that added up to making it a case that really deserves a good strong review.

[00:49:07] Speaker 05:
All right.

[00:49:07] Speaker 05:
Thank you, counsel.

[00:49:09] Speaker 05:
Thank you to both counsel for your helpful argument.

[00:49:11] Speaker 05:
The case is argued is submitted for a decision by the court.

[00:49:13] Speaker 05:
We are adjourned.

[00:49:17] Speaker ?:
All rise.

[00:49:23] Speaker 04:
Quickly, Your Honors, and thank you so much for rescheduling or working with us on that.

[00:49:30] Speaker 04:
Absolutely.

[00:49:31] Speaker 05:
Absolutely.

[00:49:32] Speaker 05:
A pleasure.

[00:49:34] Speaker 01:
This court for this session stands adjourned.