No. ___IN the FRANCIS HERNANDEZ, Petitioner, V. KEVIN

No. ______

IN THE

FRANCIS HERNANDEZ,

Petitioner,

KEVIN CHAPPELL,

Respondent.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

APPENDIX

HILARY POTASHNER Federal Public Defender MARGO A. ROCCONI* Deputy Federal Public Defender 321 East 2nd Street Los Angeles, California 90012-4202 Telephone: (213) 894-2854 Facsimile: (213) 894-0081 [email protected]

Attorney for Petitioner *Counsel of Record

APPENDIX INDEX

PAGE(S)

Appendix A United States Court of Appeals for the Ninth 1-14 Circuit, Case No. 11-99013 (2:90-CV-4638), Published Opinion, Amended Opinion and Denial of Petition for Rehearing, Case Citation: 923 F.3d 544 (9th Cir. 2019), Filed: May 3, 2019 (Dkt. 139)

Appendix B United States Court of Appeals for the Ninth 15-28 Circuit, Case No. 11-99013 (2:90-CV-4638), Published Opinion, Case Citation: 913 F.3d 871 (9th Cir. 2019) Opinion, Filed: January 14, 2019 (Dkt. 135)

Appendix C United States Court of Appeals for the Ninth 29-54 Circuit, Case No. 11-99013 (2:90-CV-4638), Published Opinion, Case Citation: 878 F.3d 843 (9th Cir. 2017) Filed: December 29, 2017 (Dkt. 108)

Appendix D United States District Court Central District of 55-265 California, Case No. 2:90-CV-4638, Order Granting in Part Petition for Writ of Habeas Corpus, Filed: August 16, 2011 (Dkt. 569), Published Opinion Case Citation: 824 F.Supp.2d 1025 (C.D. Cal. 2011)

Appendix E United States Court of Appeals for the Ninth 266 Circuit, Case No. 11-99013 (2:90-CV-4638), Order re: Judge Wardlaw to the Panel, Filed: February 16, 2018 (Dkt. 116)

Appendix F United States Court of Appeals for the Ninth 267 Circuit, Case No. 11-99013 (2:90-CV-4638), Order re: Judge Smith to the Panel, Filed: February 16, 2018 (Dkt. 116)

Appendix G United States Court of Appeals for the Ninth 268 Circuit, Case No. 11-99013 (2:90-CV-4638), Order Granting Petition for Rehearing and Oral Argument, Filed: May 21, 2018 (Dkt. 128)

Appendix H California Supreme Court Docket, 269 Case No. S013027

Appendix I California Supreme Court Docket, 270 Case No. S029520

Appendix J Ninth Circuit Court of Appeals Docket, 271-282 Case No. 11-99013 (2:90-CV-4638)

Appendix K United States District Court Central District of 283-328 California Docket, Case No. 2:90-CV-4638

i 544 923 FEDERAL REPORTER, 3d SERIES

1. Criminal Law O1888 Francis G. HERNANDEZ, Ineffective assistance of counsel Petitioner-Appellant, claims present mixed questions of law and v. fact. U.S. Const. Amend. 6.

Kevin CHAPPELL, Warden, California 2. Habeas Corpus O842, 846 State Prison At San Quentin, Respondent-Appellee. With respect to federal habeas petitions filed prior to the enactment of the No. 11-99013 Antiterrorism and Effective Death Penalty United States Court of Appeals, Act (AEDPA), Court of Appeals reviews Ninth Circuit. questions of law or mixed questions of law and fact de novo and the district court’s Argued and Submitted September findings of fact for clear error. 28 24, 2018 Pasadena, California U.S.C.A. § 2254. Filed January 14, 2019 3. Criminal Law O1881 Amended May 3, 2019 To prevail on an ineffective assistance Background: Following affirmance of his of counsel claim, the defendant must show state court conviction on two counts of first both that counsel’s performance was defi- degree murder, two counts of rape, and cient, and that he suffered prejudice due to two counts of forcible sodomy, and his counsel’s deficiency. U.S. Const. Amend. death sentence, 47 Cal.3d 315, petitioner 6. sought federal habeas relief. The United States District Court for the Central Dis- 4. Criminal Law O1883 trict of California, Ronald S.W. Lew, Sen- The essence of an ineffective assis- ior District Judge, 824 F.Supp.2d 1025, tance claim is that counsel’s unprofessional granted habeas petition in part, vacating errors so upset the adversarial balance death sentence and denying guilt-phase re- between defense and prosecution that the lief. Petitioner appealed. trial was rendered unfair and the verdict Holdings: On denial of rehearing en banc, rendered suspect. U.S. Const. Amend. 6. the Court of Appeals, Nguyen, Circuit Judge, held that: 5. Criminal Law O1882 (1) trial counsel rendered deficient per- The proper measure of attorney performance by failing to present dimin- formance with respect to an ineffective ished capacity defense based on mental assistance of counsel claim is reasonable- illness; ness under prevailing professional norms. (2) petitioner was not prejudiced by coun- U.S. Const. Amend. 6. sel’s failure to present diminished ca- 6. Criminal Law O1871, 1884 pacity defense; and While defense counsel is strongly pre- (3) counsel’s failure to subpoena potential sumed to have rendered adequate assis- witness did not amount to deficient tance, courts accord deference to counsel performance. only for strategic choices made after thor- Affirmed. ough investigation of law and facts rele- Opinions, 878 F.3d 843, 913 F.3d 871, su- vant to plausible options. U.S. Const. perseded. Amend. 6.

App. A - 1 HERNANDEZ v. CHAPPELL 545 Cite as 923 F.3d 544 (9th Cir. 2019)

7. Criminal Law O1890 11. Criminal Law O1883 An attorney’s ignorance of a point of To make the assessment as to wheth- law that is fundamental to his case com- er a defendant was prejudiced from coun- bined with his failure to perform basic sel’s deficient performance, such that coun- research on that point is a quintessential sel rendered ineffective assistance, the example of unreasonable performance un- Court of Appeals compares the evidence der Strickland. U.S. Const. Amend. 6. that actually was presented to the jury 8. Criminal Law O1912 with the evidence that might have been Defense counsel rendered deficient presented had counsel acted differently. performance in murder and rape prosecu- U.S. Const. Amend. 6. tion by failing to present diminished capac- 12. Criminal Law O1912 ity defense based on defendant’s mental illness; counsel admitted that he did not Defense counsel’s failure to present know that diminished capacity based upon diminished capacity defense based on de- mental illness was an available defense fendant’s mental illness did not prejudice under then-existing California law, and defendant and, thus, did not constitute in- that he failed to investigate whether such a effective assistance of counsel in murder defense would be available even though he and rape prosecution; given that jury had no prior experience presenting a di- heard overwhelming evidence, which in- minished capacity defense, and there was cluded physical evidence as well as defen- no reason to doubt counsel’s admission dant’s detailed confession, of defendant’s that he based his actions on lack of investi- specific intent to rape and kill both victims, gation and knowledge, rather than strate- evidence of defendant’s diminished capaci- gic judgment. U.S. Const. Amend. 6. ty would not have resulted in a reasonable probability of a different outcome, and to 9. Criminal Law O1884 the extent expert opinions suggested that Generally, a court considering an inef- defendant was incapable of forming the fective assistance of counsel claim credits requisite intent, those opinions failed to the statements of defense counsel as to account for the striking similarities be- whether their decisions at trial were, or tween the two crimes and defendant’s de- were not, based on strategic judgments; tailed explanation of his actions, thoughts, where it would contradict counsel’s testi- and motivations during the crimes. U.S. mony to presume that counsel’s conduct Const. Amend. 6. was strategic when counsel clearly stated otherwise, the court is guided by counsel’s 13. Criminal Law O1924 own statements. U.S. Const. Amend. 6. Defense counsel’s failure to subpoena 10. Criminal Law O1883 witness to testify in murder and rape pros- To establish prejudice in support of an ecution did not amount to deficient per- ineffective assistance of counsel claim, the formance; at best, witness may have testi- defendant must show a reasonable proba- fied that defendant and victim engaged in bility that, but for counsel’s unprofessional consensual sex on a prior occasion, and errors, the result of the proceeding would such evidence had minimal probative value, have been different; a reasonable probabil- especially in light of significant evidence ity is a probability sufficient to undermine that victim had been brutally raped and confidence in the outcome. U.S. Const. sodomized on the evening of her death. Amend. 6. U.S. Const. Amend. 6.

App. A - 2 546 923 FEDERAL REPORTER, 3d SERIES

14. Criminal Law O1922 (9th Cir. 2006) (‘‘The bar for establishing While the Sixth Amendment requires prejudice is set lower in death penalty an attorney to look for evidence that cor- sentencing cases than in guilt-phase chal- roborates the defense he pursues, the lenges and noncapital cases.’’). Sixth Amendment does not require an at- The petitions for rehearing and rehear- torney to hunt down marginally relevant ing en banc are otherwise DENIED, no and indirectly beneficial evidence. U.S. further petitions for rehearing will be ac- Const. Amend. 6. cepted. The panel has voted to deny the petition for panel rehearing and to deny Appeal from the United States District the petition for rehearing en banc. The full Court for the Central District of Califor- court has been advised of the petition for nia, Ronald S.W. Lew, Senior District rehearing en banc, and no judge has re- Judge, Presiding, D.C. No. 2:90-cv-04638- quested a vote on whether to rehear the RSWL matter en banc. Tracy Casadio (argued) and Margo A. Rocconi, Deputy Federal Public Defend- OPINION ers; Hilary Potashner, Federal Public Defender; Office of the Federal Public NGUYEN, Circuit Judge: Defender, Los Angeles, California; for In the winter of 1981, Francis Hernan- Petitioner-Appellant. dez brutally raped, sodomized, and stran- Gary A. Lieberman (argued) and Xiom- gled to death two women, Edna Bristol ara Costello, Deputy Attorneys General; and Kathy Ryan. Hernandez committed Jason Tran, Supervising Deputy Attorney the crimes five days apart and in a strik- General; Lance E. Winters, Senior Assis- ingly similar manner, including strangling tant Attorney General; Gerald A. Engler, the victims, mutilating their bodies, and Chief Assistant Attorney General; Xavier leaving them near schools in Long Beach, Becerra, Attorney General; Office of the California. After his arrest, Hernandez Attorney General, Los Angeles, California; confessed, walking the police through ev- for Respondent-Appellee. ery detail of his crimes and his thoughts Kent S. Scheidegger and Kymberlee C. and motivations as he committed them. In Stapleton, Criminal Justice Legal Founda- April 1983, a jury convicted Hernandez of tion, Sacramento, California, for Amicus two counts each of first-degree murder, Curiae Criminal Justice Legal Foundation. forcible rape, and forcible sodomy, and sentenced him to death. The California Before: Kim McLane Wardlaw, Milan D. Supreme Court denied his state habeas Smith, Jr., and Jacqueline H. Nguyen, petitions. Circuit Judges. Hernandez filed a federal habeas peti- ORDER tion alleging, among other claims, inef- The opinion filed on January 14, 2019, is fective assistance of trial counsel. After amended as follows: on slip opinion page extensive litigation, including a six-year 13, delete the following text: A defendant evidentiary hearing, the district court faces a higher burden of showing prejudice granted relief in part, vacating the death at the guilt phase than at the penalty sentence. The district court denied guilt- phase. See Raley v. Ylst, 470 F.3d 792, 802 phase relief.

App. A - 3 HERNANDEZ v. CHAPPELL 547 Cite as 923 F.3d 544 (9th Cir. 2019)

Hernandez now appeals the district On February 4, 1981, Hernandez was court’s denial of relief as to the guilt-phase arrested for the crimes. claims relating to his first-degree murder convictions.1 We find that trial counsel’s B. Hernandez’s Detailed Confession performance was deficient in one respect— Hernandez gave a detailed, taped con- he should have investigated and consid- fession. He chillingly recounted not only ered presenting a diminished capacity de- his horrific acts, but also the thoughts and fense based on Hernandez’s mental condi- feelings that went through his mind as he tion. We hold, however, that Hernandez committed the crimes. Hernandez ex- did not suffer any prejudice as a result of plained that on the night of Bristol’s death, counsel’s deficient performance. Because he ‘‘was in a weird mood’’ and decided to the evidence of his specific intent to rape ‘‘find TTT a homosexual to beat up on.’’ He and kill both victims was overwhelming found a male victim, beat him up, and when compared to the relatively weak di- robbed him ‘‘for his last ten dollars.’’ When minished capacity evidence that counsel he was done, Hernandez was still feeling could have presented, but failed to present, ‘‘frustrated.’’ It was then that he picked up there was no reasonable probability of a Bristol hitchhiking. different outcome in this case. We there- He became angry when Bristol started fore affirm. telling him ‘‘about all her problems’’ and ordered her out of his van. When she refused, he began to hit her and physically I. drag her out. Bristol then pleaded that ‘‘she’d do anything,’’ and after he ‘‘thought BACKGROUND about that for a minute,’’ he decided to A. The Murders of Bristol and Ryan drive to another location. Once parked, he ordered Bristol to ‘‘get in the back’’ of the In January 1981, Edna Bristol’s nude van, where there was no exit, and ‘‘to take body was found near a middle school in off her clothes.’’ Hernandez explained that Long Beach, California. Five days later, he had intended to ‘‘let her out’’ or ‘‘let her Kathy Ryan’s nude body was found near go’’ after they ‘‘had sexual intercourse,’’ a high school in the same city. According but he went ‘‘bezerk’’ because she was to a pathologist, Bristol and Ryan both kicking and screaming and damaging his died of asphyxiation due to strangulation van. He taped her ankles, wrists, and or suffocation, and their bodies suffered mouth ‘‘around the hair,’’ and then, as he ‘‘extremely similar and extremely rare’’ described it, ‘‘I proceeded to fuck her in trauma to the anal and vaginal areas, sug- her ass.’’ He pushed her body against the gesting a large object—consistent with a hot engine cowling of his van to burn her baseball bat—had been inserted. Their nipple because he was ‘‘mad at her.’’ He bodies were mutilated, with bite marks on then pushed ‘‘some piece of material’’ their breasts, and their pubic hair was ‘‘over [Bristol’s] face’’ while holding her by singed. Bristol had ligature marks around the throat until she stopped moving. He her wrists and ankles. Ryan’s nose was threw her body out of the van onto the fractured, and a tic-tac-toe pattern had lawn of a middle school in Long Beach, been carved into her abdomen post-mor- California. Thinking Bristol was still alive, tem. Hernandez flicked matches onto her pubic

1. The state on appeal does not challenge the district court’s grant of penalty-phase relief.

App. A - 4 548 923 FEDERAL REPORTER, 3d SERIES area and another match ‘‘on her nipple’’ to based solely on voluntary intoxication. Tri- ‘‘hurt her’’ for kicking him ‘‘in the nuts’’ al counsel argued that Hernandez’s heavy and kicking a hole in his van. drinking prevented him from forming the Hernandez’s confession also walked the specific intent necessary for first-degree police through the night of Ryan’s death. murder. Counsel tried to persuade the jury He had gone to play pool with friends, that Hernandez’s intoxication caused Her- including Ryan.2 After the group disband- nandez to believe that the encounters with ed, he went over to Ryan’s house and Bristol and Ryan were consensual, and invited her into his van. When he tried to that he did not intend to kill them. kiss her, ‘‘she sort of resisted.’’ She also The jury was unconvinced and convicted refused his order to take off her clothes Hernandez of two counts of first-degree but then said, ‘‘oh, okay,’’ when he got murder, two counts of forcible rape, and angry and ‘‘pushed her arms back.’’ At one two counts of forcible sodomy, and found point, he ‘‘thought she wanted it in her true special circumstances: that each mur- ass,’’ and sodomized her. Like Bristol, der occurred during the commission of Ryan was screaming and kicking and, in rape and sodomy, and that he committed response, he ‘‘grabbed her, [held] onto her, more than one murder. People v. Hernan- and TTT then she gargled—she TTT sput- tered up.’’ He thought that he ‘‘was chok- dez, 47 Cal. 3d 315, 327, 253 Cal.Rptr. 199, ing her too hard’’ and ‘‘let go.’’ Hernandez 763 P.2d 1289 (1988). The jury returned a told her ‘‘to mellow out’’ but when she death sentence as to each murder. On each started screaming again, he grabbed her count of rape and sodomy, the trial court throat with one hand and covered her sentenced Hernandez to eight years, to be mouth with the other hand. Because ‘‘she served consecutively. started struggling really bad,’’ he realized On direct appeal, the California Su- he ‘‘must have used too much pressure, preme Court vacated one multiple-murder but then she stopped struggling.’’ He special circumstance, but affirmed the burned Ryan’s pubic hair with a lighter, judgment in all other respects. and decided to cut her stomach and nipple ‘‘to make the two bodies look different D. Habeas Proceedings from one another so that the police could not link the cases together.’’ Hernandez In 1989, Hernandez filed a state habeas took Ryan’s body to the high school ‘‘[b]e- petition in the California Supreme Court, cause it was his understanding TTT that raising claims of ineffective assistance of police sometimes think criminals return to counsel, which the California Supreme the scene of the crime, and they might Court summarily denied. Hernandez then have been there waiting for him, had he filed a federal habeas petition and re- TTT gone back to the first location’’ where turned to state court to exhaust his claims. he left Bristol’s body. The California Supreme Court summarily denied Hernandez’s second habeas petition C. Trial and Subsequent History as untimely and on the merits. Hernandez At trial, Hernandez’s counsel attempted subsequently filed an amended federal pe- to present a diminished capacity defense tition. The state filed a motion for sum-

2. The evidence shows that Ryan had re- intended ‘‘to make a sandwich out of [Ryan],’’ peatedly rejected Hernandez’s aggressive ad- ‘‘fuck her in the butt until she screams,’’ and vances all evening during the group outing. ‘‘get some [from Ryan either] tonight or to- Hernandez told one friend that night that he morrow night.’’

App. A - 5 HERNANDEZ v. CHAPPELL 549 Cite as 923 F.3d 544 (9th Cir. 2019) mary judgment, which the district court impairment, see 28 U.S.C. § 2253(c)(2). We granted in part and denied in part. The decline to grant a COA as to the remaining district court then ordered a bifurcated claims. evidentiary hearing as to Hernandez’s juror misconduct and ineffective assistance III. of counsel claims. STANDARD OF REVIEW In 2011, the district court granted relief [1, 2] Hernandez filed his federal habe- in part, vacating the death sentence partly as petition before the enactment of the because, at the penalty phase, counsel pre- Antiterrorism and Effective Death Penalty sented virtually no mitigating evidence. Act of 1996 (‘‘AEDPA’’), and therefore, Had counsel investigated, he would have pre-AEDPA standards of review apply. discovered that Hernandez suffered from a Carrera v. Ayers, 699 F.3d 1104, 1106 (9th deeply troubled childhood and certain Cir. 2012). ‘‘Ineffective assistance of coun- mental deficiencies. On appeal, the state sel claims present mixed questions of law does not challenge the penalty-phase relief. and fact.’’ Id. Under pre-AEDPA law, we As to the guilt phase, however, the dis- review questions of law or mixed questions trict court denied the petition. There are of law and fact de novo. Id. ‘‘We review the two claims of ineffective assistance of district court’s findings of fact for clear counsel that are relevant here. On the first error.’’ Id. (quoting Robinson v. Schriro, claim, the district court found that counsel 595 F.3d 1086, 1099 (9th Cir. 2010) ). was ineffective for failing to present mental health evidence to support a diminished IV. capacity defense, but that Hernandez did not suffer any prejudice. As to Hernan- DISCUSSION dez’s claim that counsel was ineffective for [3, 4] To prevail on an ineffective assis- failing to call Laura Kostiuk as a witness, tance of counsel claim, the defendant must the district court ruled that counsel’s per- show both that counsel’s performance was formance was not deficient, and Hernan- deficient, and that he suffered prejudice dez was not prejudiced. due to counsel’s deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. II. 2052, 80 L.Ed.2d 674 (1984). ‘‘The essence of an ineffective-assistance claim is that JURISDICTION counsel’s unprofessional errors so upset The district court granted a certificate the adversarial balance between defense of appealability (‘‘COA’’) only on Hernan- and prosecution that the trial was ren- dez’s claim that counsel was ineffective for dered unfair and the verdict rendered sus- failing to call Kostiuk as a witness, declin- pect.’’ Kimmelman v. Morrison, 477 U.S. ing to certify the remaining ineffective as- 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 sistance of counsel claims. We treat Her- (1986). nandez’s appeal from the district court’s ruling on the uncertified issues as an appli- A. Counsel Rendered Ineffective Assis- cation for a COA, Fed. R. App. P. 22(b)(2), tance by Failing to Investigate and and grant the application as to Hernan- Present a Diminished Capacity De- dez’s claim that counsel was ineffective by fense Based on Mental Illness failing to investigate and present a dimin- Hernandez argues that his counsel was ished capacity defense based on mental constitutionally deficient by failing to pres-

App. A - 6 550 923 FEDERAL REPORTER, 3d SERIES ent a diminished capacity defense based on thought.’’). Rather than focus on Hernan- his mental illness. We agree. dez’s mental condition, counsel instead chose to limit the evidence to Hernandez’s [5, 6] ‘‘The proper measure of attorney intoxication because, as he explained, he performance remains simply reasonable- mistakenly believed that the defense ness under prevailing professional norms.’’ ‘‘could only be based on a lack of capacity Strickland, 466 U.S. at 688, 104 S.Ct. 2052. arising from the use of drugs and/or alco- While defense counsel ‘‘is strongly pre- hol.’’ Worse still, counsel admitted that he sumed to have rendered adequate assis- had no prior experience with presenting tance,’’ we accord deference to counsel the defense, and yet he ‘‘neither investigat- only for ‘‘strategic choices made after thor- ed, nor made a reasonable decision not to ough investigation of law and facts rele- investigate’’ whether the defense would be vant to plausible options.’’ Id. available. See Kimmelman, 477 U.S. at [7] ‘‘An attorney’s ignorance of a point 385–87, 106 S.Ct. 2574 (holding that coun- of law that is fundamental to his case sel’s performance was deficient where his combined with his failure to perform basic actions ‘‘betray[ed] a startling ignorance of research on that point is a quintessential the law[—]or a weak attempt to shift example of unreasonable performance un- blame for inadequate preparation’’). Be- der Strickland.’’ Hinton v. Alabama, 571 cause counsel’s failure to investigate and U.S. 263, 274, 134 S.Ct. 1081, 188 L.Ed.2d present a diminished capacity defense 1 (2014); see also United States v. Span, 75 based on mental illness was unreasonable, F.3d 1383, 1390 (9th Cir. 1996) (finding his assistance to Hernandez in this respect counsel’s performance deficient because was constitutionally deficient. his errors with regard to the jury instruc- [9] We are unpersuaded by the state’s tions were based on ‘‘a misunderstanding argument that we should reject counsel’s of the law’’ rather than strategic judg- stated explanations in favor of hypothetical ment); Morris v. California, 966 F.2d 448, strategic choices that could have supported 454–55 (9th Cir. 1991) (finding counsel’s counsel’s conduct. According to the state, a performance deficient because he had not reasonable defense attorney could have ‘‘done his homework’’ in researching the decided not to present mental illness evi- relevant law). dence in order to limit potentially damag- [8] Here, Hernandez’s trial counsel ad- ing evidence that Hernandez was a socio- mitted that he was ignorant of the law that path. ‘‘Generally, we credit the statements was central to a diminished capacity de- of defense counsel as to whether their fense, which the district court correctly decisions at trial were—or were not— characterized as Hernandez’s ‘‘best possi- based on strategic judgments.’’ Doe v. Ay- ble defense.’’ Counsel did not realize that ers, 782 F.3d 425, 445 (9th Cir. 2015). diminished capacity based upon mental ill- Where, as here, ‘‘it ‘would contradict ness was an available defense under then- [counsel’s] testimony’ ’’ to presume that existing California law. See People v. counsel’s conduct was strategic when coun- Saille, 54 Cal. 3d 1103, 1110, 2 Cal.Rptr.2d sel clearly stated otherwise, we are guided 364, 820 P.2d 588 (1991) (‘‘[S]omeone who by counsel’s own statements. See id. (quot- is unable, because of intoxication or mental ing Heishman v. Ayers, 621 F.3d 1030, illness, to comprehend his duty to govern 1040 (9th Cir. 2010) ). To do otherwise his actions in accord with the duty imposed would ‘‘contraven[e] the Supreme Court’s by law, cannot act with malice afore- admonition against adopting a post hoc

App. A - 7 HERNANDEZ v. CHAPPELL 551 Cite as 923 F.3d 544 (9th Cir. 2019) rationalization of counsel’s conduct instead cause the jury had two independent paths of relying on an accurate description of to convict Hernandez of first-degree mur- their deliberations.’’ Id. (internal quotation der. While the jury was required to find marks omitted). We have no reason to that the killing was willful, deliberate, doubt counsel’s admission that he based premeditated, and with malice afore- his actions on lack of investigation and thought under the first theory, it needed knowledge, not on any strategic judgment. only to find that Hernandez had the spe- Accepting counsel’s explanations, his con- cific intent to rape under the second the- duct was unreasonable under Strickland. ory of felony murder. See Hernandez, 47 Cal. 3d at 346–51, 253 Cal.Rptr. 199, 763 B. Counsel’s Failure to Present a Di- P.2d 1289. minished Capacity Defense Based Ample evidence of Hernandez’s specific on Mental Illness Did Not Result in intent to rape and kill both Bristol and Prejudice to Hernandez Ryan supported the jury’s verdict. First, [10, 11] To establish prejudice, the de- the two crimes were committed within fendant must show ‘‘a reasonable probabil- days of each other and were strikingly ity that, but for counsel’s unprofessional similar, strongly suggesting premeditation. errors, the result of the proceeding would Bristol and Ryan were around the same have been different. A reasonable probabil- age—twenty-one and sixteen, respective- ity is a probability sufficient to undermine ly—and both had shoulder-length blonde confidence in the outcome.’’ Strickland, hair and similar body types. Hernandez, 466 U.S. at 694, 104 S.Ct. 2052. To make 47 Cal. 3d at 328, 341, 253 Cal.Rptr. 199, 763 P.2d 1289. Both victims were enticed this assessment, we ‘‘compare the evidence into Hernandez’s van, raped, and sodom- that actually was presented to the jury ized. Id. at 332–33, 253 Cal.Rptr. 199, 763 with the evidence that might have been P.2d 1289. Hernandez taped Bristol’s presented had counsel acted differently.’’ wrists, ankles, and mouth with duct tape; Clark v. Arnold, 769 F.3d 711, 728 (9th tape was also found near Ryan’s body. Id. Cir. 2014) (quoting Murtishaw v. Wood- at 328, 332, 253 Cal.Rptr. 199, 763 P.2d ford, 255 F.3d 926, 940 (9th Cir. 2001) ). 1289. Both victims suffered ‘‘extremely similar and extremely rare’’ wounds to the 1. The Jury Heard Overwhelming Ev- vagina and anus, likely caused by forcible idence of Hernandez’s Specific In- insertion of a large object, possibly a base- tent to Rape and Kill Bristol and ball bat. After each woman struggled and Ryan screamed, Hernandez strangled them. [12] Although Hernandez’s trial coun- Both women were found in the early morn- sel’s performance was deficient, Hernan- ing hours, lying naked on their backs, dez must also show that he suffered prej- abandoned in grassy fields near schools. udice due to counsel’s conduct. See Hernandez threw both of their clothes out Strickland, 466 U.S. at 687, 104 S.Ct. of his van after driving away from their 2052. To succeed here, Hernandez must bodies. Their bodies bore other similar show a reasonable probability of a differ- injuries—wounds inflicted by punches to ent outcome as to both first-degree mur- the mouth, significant bruising around der theories that were available to the their necks, bite marks on their breasts, jury: (1) willful, deliberate, and premedi- ‘‘puncture-wound type injuries to the nip- tated murder, and (2) felony murder with ples,’’ and ‘‘singed or burned pubic hair.’’ rape as the predicate felony. That is be- The injuries ‘‘carried significant sexual

App. A - 8 552 923 FEDERAL REPORTER, 3d SERIES overtones,’’ and ‘‘specifically sexual vio- clothes on, and I was going to let her out lence [was] repeated in almost every detail TTTT with both victims.’’ Id. at 350, 253 Cal. (Emphases added). While Hernandez tried Rptr. 199, 763 P.2d 1289. The substantial to minimize his conduct by claiming that similarities between the crimes showed they had consensual intercourse, his state- that Hernandez intended and premeditat- ment reveals, in several respects, his ed both rapes and murders. Cf. id. at 341, awareness of Bristol’s lack of consent and 253 Cal.Rptr. 199, 763 P.2d 1289 (charac- his specific intent to rape her—pondering terizing the offenses as ‘‘ ‘signature’ her plea that she would ‘‘do anything[;]’’ crimes—because of the unique nature of driving to a different location; ordering her each killing, it was reasonable to believe to get into the back of the van and take off the same person committed them both’’). her clothes; and, after raping her, admit- Second, Hernandez’s confession was ting that he was preparing to ‘‘let her go’’ powerful evidence of his intent. He ex- or ‘‘let her out.’’ plained the beginning of his attack on Bris- Tragically, Hernandez’s violence only in- tol as follows: creased as the evening progressed. As Bristol struggled and screamed, Hernan- [Bristol] started telling me about all her dez went ‘‘bezerk,’’ and, in his own words: problems, and I was mad, and I told I just threw her over, taped her up TTT I her not to tell me about her problems, taped her wrists. I taped her legs TTT and then she started bitching, and I just [a]round the ankles, and then I taped stopped my van. I got out, walked her around the hair, and then I proceed- around and told her to get out, and she ed to fuck her in the ass. TTT [A]nd then wouldn’t get out, so I hit her, and I I told her that if she was good after dragged her out of my van, and then she that; I told her if she was going to be told me that she’d do anything, and I cool, I’d let her up[,] and I was going to thought about that for a minute, and—I let her go, and then when I let her up, don’t know it was just that I was drunk she started just kicking and hitting, and and I was in a weird mood, and I just kicking and hitting me, so I just put my took her and I threw her in the back TTT hand over her and I grabbed some piece and then I told her to get out and get in of material TTT I pushed that over her the front, TTT and I proceeded to drive TTT TTTT face and then—uh—she stopped moving. (Emphases added). Hernandez parked at Hernandez also admitted to ‘‘forc[ing] another location and told Bristol to ‘‘get in [Bristol] up against the hot engine cowling the back’’ and ‘‘take off her clothes.’’ There of the van in order to burn her breasts.’’ was no exit from the back of the van. Hernandez, 47 Cal. 3d at 332, 253 Cal. Hernandez, 47 Cal. 3d at 345 n.18, 253 Rptr. 199, 763 P.2d 1289. His motivation Cal.Rptr. 199, 763 P.2d 1289. Hernandez was clear by his own admission: he suffo- described what happened next: cated Bristol as punishment for not ‘‘being [We] had sexual intercourse once, then I cool’’ after he violently raped and sodom- was getting up and getting ready to let ized her. And the acts Hernandez took to her go, and I didn’t really have her—you render Bristol ‘‘totally defenseless’’—at- know—forcibly. I guess maybe she tacking her in the back of the van, from thought I did, but I don’t know—you which she could not escape, and taping her know. I proceeded to get up and get my arms, legs, and mouth—also suggested

App. A - 9 HERNANDEZ v. CHAPPELL 553 Cite as 923 F.3d 544 (9th Cir. 2019) premeditation and intent to kill. See Crit- time to sexually assault and rape her. That tenden v. Ayers, 624 F.3d 943, 963 (9th same evening, Ryan ended up in his van, Cir. 2010) (viewing petitioner’s gagging and although Hernandez again tried to and tying of his victims as evidence of minimize his conduct by claiming that she premeditation supporting a first-degree ‘‘submitted freely,’’ the evidence suggests murder conviction). In fact, Bristol’s that she was forced. Before the group of ‘‘wrists and ankles had been bound so friends dispersed from the bar, Ryan’s tightly that there were ligature marks on friend overheard Hernandez asking Ryan the skin and hemorrhage in the underlying to meet up with him after the gathering, tissues.’’ Hernandez, 47 Cal. 3d at 344–45, and Ryan responding ‘‘no.’’ Hernandez ad- 253 Cal.Rptr. 199, 763 P.2d 1289. mitted to the police that Ryan was ‘‘hesi- Hernandez’s confession contains even tant’’ about having sex with him but when more compelling details of his intent to he got ‘‘mad,’’ she finally ‘‘said oh, okay’’ rape and murder Ryan. Ryan and Hernan- because he had pushed her arms down and dez were friends, and spent time together was about to force himself upon her. De- in a group the evening of her death. The spite Hernandez’s self-serving statements California Supreme Court described Her- minimizing the amount of force used, his nandez’s actions as follows: intent to rape Ryan is clear. During the evening of playing pool and Hernandez’s confession, coupled with drinking beer, it was evident to several in the group that defendant was focusing the physical evidence, also revealed his considerable unwelcome attention on intent to murder Ryan. After she was Ryan. He tried to put his arms around raped and forcibly sodomized, Ryan, like her, pinched her in the buttocks and put Bristol, was screaming, kicking, and resist- his hands on her hips, but she kept ing. Hernandez described his response as pushing him awayTTTT Outside, defen- follows: dant told Jackson he wanted to make a I grabbed her, [held] onto her, and— ‘‘sandwich’’ out of Ryan; he wanted to uh—then she gargled—she like sput- ‘‘fuck her in the butt until she screams.’’ tered up—you know—I guess I was He told Jackson he would ‘‘get some choking her too hard, and then I let go, tonight or tomorrow night.’’ and then she was—I told her to mellow Hernandez, 47 Cal. 3d at 329–30, 253 Cal. out and to start putting her clothes on, Rptr. 199, 763 P.2d 1289.3 Hernandez’s and I turned around to start doing it aggressive unwanted sexual touching of again, and then she started screaming Ryan at the bar, and his stated intent to again and everything, and I just—I later ‘‘make a ‘sandwich’ ’’ out of Ryan and don’t know—I grabbed her, and I just— ‘‘fuck her in the butt until she screams’’ I tried to shut her up and TTT [g]rabbed strongly suggest that he planned ahead of her around the throat TTT [w]ith one of

3. Ryan’s stepmother also testified to suspi- going out to play pool, but her pool cue and cious circumstances surrounding her daugh- jacket were on the living room floor. Id. at ter’s room. The morning after Ryan’s death, 329, 253 Cal.Rptr. 199, 763 P.2d 1289. ‘‘[Her] her stepmother ‘‘found the living room lights purse was outside on the ground and items still on and the drapes and sliding glass door from the purse were spilled out.’’ Id. The jury TTTT open [H]er bedroom window was open could have believed that Hernandez kid- Hernandez and missing its screen.’’ , 47 Cal. napped Ryan, which would support a finding 3d at 328–29, 253 Cal.Rptr. 199, 763 P.2d of specific intent to rape. 1289. Ryan had told her stepmother she was

App. A - 10 554 923 FEDERAL REPORTER, 3d SERIES

my hands, and put one of my hands over He recounted cutting Ryan’s nipple with a her mouth to keep her quiet. piece of broken glass. Significantly, Her- As Hernandez strangled Ryan, he was nandez described all these details before thinking of how he had killed Bristol in the seeing any pictures of Bristol or Ryan’s same way just days before. Ryan had sig- bodies. nificant bruising around her neck—show- In sum, the jury heard overwhelming ing his intent to kill her, not simply quiet evidence that Hernandez had the specific her screams. See People v. Frank, 38 Cal intent to rape both Bristol and Ryan, and 3d. 711, 733–34, 214 Cal.Rptr. 801, 700 that he murdered both women willfully, P.2d 415 (1985) (stating that ‘‘strangulation deliberately, and with premeditation. TTT [is] a manner of killing [that] shows at least a deliberate intent to kill’’ and that 2. The Relatively Weak Diminished can ‘‘support an inference of premeditation Capacity Evidence Would Not and deliberation’’). Significantly, not only Have Resulted in a Reasonable was he fully aware of his actions, Hernan- Probability of a Different Out- dez also had the presence of mind to con- come template the consequences. After he killed The strength of the evidence of Hernan- Ryan, he cut her torso with a piece of glass dez’s intent to rape and kill contrasts in a deliberate attempt to make her body sharply with the relatively weak ‘‘evidence look different from Bristol’s. Hernandez’s that might have been presented had coun- chilling insight into his own motivations sel acted differently’’—specifically, evi- gave the jury powerful, direct evidence of dence that his mental condition rendered his willfulness, deliberation, and premedi- him incapable of forming the requisite in- tation. tent. See Clark, 769 F.3d at 728 (quoting Finally, the level of detail in Hernan- Murtishaw, 255 F.3d at 940). dez’s confession provided further compelling proof that he was aware of and intend- At his post-conviction hearing, Hernan- ed his actions. In a largely chronological dez presented testimony from five experts: fashion, Hernandez walked the police psychologist June Madsen Clausen, psychi- through the events leading up to the rapes atrist Dorothy Otnow Lewis, criminologist and murders, including very specific de- Sheila Balkan, clinical psychologist Charles scriptions of his actions. Apart from detail- Sanislow, and neuropsychologist Ruben ing his thoughts and motivations, see su- Gur. Hernandez v. Martel, 824 F.Supp.2d pra, Hernandez admitted to mutilating 1025, 1043 (C.D. Cal. 2011). Dr. Sanislow’s both of his victims’ bodies and described and Dr. Gur’s testimony was used to rebut the nature of the markings in detail. Her- the findings of the state’s expert, clinical 4 nandez described burning Bristol and psychologist Daniel Martell. Id. at 1062– Ryan’s pubic hair, explaining that he acted 65. out of anger. He specifically remembered Dr. Sanislow merely reviewed and com- burning Bristol’s left breast with a match, mented on Martell’s discredited evaluation distinguishing that burn from the burns to of Hernandez. He found that the absence her right breast caused by pushing her up of bipolar indications in Martell’s then- against the hot car during forcible sodomy. recent testing of Hernandez ‘‘[was] not a

4. We give no independent consideration to ogy and credibility. See Hernandez, 824 Martell’s findings because the district court F.Supp.2d at 1056. found significant problems with his methodol-

App. A - 11 HERNANDEZ v. CHAPPELL 555 Cite as 923 F.3d 544 (9th Cir. 2019) sufficient basis on which to conclude that 824 F.Supp.2d at 1063 (emphasis added) Mr. Hernandez is not bipolar,’’ and that a (quoting Dr. Gur’s Dep. Tr.). negative finding on the administered psy- Dr. Lewis diagnosed Hernandez with chometric test ‘‘does not rule out the pres- psychosis and bipolar disorder, found that ence or past presence of psychopathology he had ‘‘compromised mental functioning,’’ (e.g., dissociative disorders, bipolar or oth- and concluded that his ‘‘capacity to form er affective disorders).’’ (Emphases add- the specific intent to rape and kill[ ] was ed). While his conclusions were sufficient, substantially impaired’’ at the time he among other reasons, to lead the district committed the crimes. Dr. Balkan, a crimi- court to discount Martell’s evaluation, they nologist, provided a social history of Her- are certainly not a conclusive diagnosis of nandez’s life and otherwise largely quoted bipolar disorder. Dr. Lewis’s conclusions. While these evalu- Dr. Gur, the second rebuttal expert, be- ations raise concerns about Hernandez’s lieved Hernandez suffers from brain dys- mental stability, they do not show that function. He found ‘‘clear[ ] indicat[ions] Hernandez lacked the ability to form the that [ ] Hernandez has deficits in under- necessary specific intent for these crimes. standing and interpreting facial expres- Dr. Lewis found Hernandez’s mental state sions of affect, which would provide’’ the to be ‘‘compromised’’ and ‘‘substantially basis ‘‘for such confusion and mispercep- impaired,’’ but not necessarily inconsistent tions to have occurred during the commis- with the ability to form specific intent to sion of the crimes[,] TTT interfer[ing] with murder and rape. And, as she acknowl- his ability to comprehend and formulate an edged, no single factor in Hernandez’s dif- appropriate response to the victims’ ex- ficult life accounts for his violent crimes. pressions of resistance and fear,’’ and ‘‘sig- The final habeas expert was Dr. Clau- nificantly interfer[ing] with his ability to sen, whose opinion comes closest to stating make the right judgment.’’ But a lack of definitively that Hernandez could not have good judgment is not equivalent to the had the necessary specific intent. Dr. Clau- inability to form specific intent. Moreover, sen opined that ‘‘Hernandez was in a trau- Hernandez’s own statements—even those ma-induced dissociative state’’ at the time made to Dr. Gur himself during their eval- of his crimes, ‘‘and as a result, has no uation 5—belie the notion that Hernandez subsequent actual recollection of the could not perceive the emotions of his vic- events that transpired.’’ But the sugges- tims. On the contrary, Hernandez was able tion by Dr. Clausen that Hernandez was in to articulate that his victims were afraid, a dissociative state and ‘‘had no subse- did not consent to sexual activity, and re- quent actual recollection’’ of his crimes is sisted him. And while, in deposition, Dr. totally contradicted by his detailed confes- Gur concluded that ‘‘either schizophrenia sion, the voluntariness and reliability of or bipolar illness is probably applicable in which Hernandez does not dispute. his case,’’ he also admitted that Hernandez Even generously construed, these opin- could suffer from something else entirely, ions are grossly inadequate to undermine ‘‘such as attention deficit, hyperactivity the evidence that Hernandez was capable disorder, [or] impulse control.’’ Hernandez, of forming, and in fact formed, the intent

5. Hernandez told Dr. Gur that Bristol ‘‘did commit forcible sodomy in that instant, but not consent to anal intercourse.’’ Dr. Gur lack the capacity to form specific intent im- does not explain how he concludes that Her- mediately before (while raping Bristol) or af- nandez could have the mental capacity to ter (while strangling Bristol).

App. A - 12 556 923 FEDERAL REPORTER, 3d SERIES to rape and kill Bristol and Ryan. First, experts’ conclusions actually support the the experts fail to account for the striking inference that Hernandez was at least similarities between the two crimes. Dr. aware of, and intended, his actions during Gur theorized that mental impairments the rapes. The intent to rape alone is like Hernandez’s could cause someone to enough to support the murder convictions. ‘‘engage in a complex set of behaviors without intent or premeditation,’’ leading Finally, the experts’ dissociation theory to ‘‘highly organized if somewhat ritualistic fails to account for Hernandez’s detailed behavior.’’ But Hernandez’s behavior does explanation of his actions, thoughts, and not suggest ritual so much as it expresses motivations during the crimes. Drs. Gur an intent to rape and murder Bristol and and Lewis surmised that Hernandez’s con- Ryan because, as Hernandez himself ex- fession suggested that he was in ‘‘an al- plained, he was angry at their resistance. tered mental state’’ on the nights of the And none of the other experts even at- crimes based on his statement that he tempted to explain how Hernandez could ‘‘wasn’t even feeling [that] [he] did it,’’ and have committed two such similar crimes his request for psychiatric help because he within a five-day period without intending ‘‘[didn’t] know what would make [him] do to do so. this.’’ But ‘‘a reasonable jury could have Second, the experts’ reports also fail to easily chosen to disbelieve [these] self- counter the overwhelming evidence that serving’’ statements in light of Hernan- Hernandez intended to rape Bristol and dez’s extensive account of his innermost Ryan. The habeas experts uncovered no thoughts and motivations on the nights of evidence to suggest Hernandez was in a the crimes. See United States v. Nichol- dissociative state when he ‘‘thought about’’ son, 677 F.2d 706, 709 (9th Cir. 1982). Bristol’s offer to ‘‘do anything’’ to save Moreover, while Drs. Gur and Lewis make herself from his violence; when, earlier in much of the fact that Hernandez is persis- the evening, he sexually harassed Ryan tently ‘‘unable’’ to explain why he commit- and bragged of plans to ‘‘get some’’ later; ted the brutal murders, this assertion is or when he pushed Ryan’s arms down and squarely contradicted by the record. Her- raped her after she said no to sexual inter- nandez provided a plausible, albeit deeply course. In fact, even Dr. Clausen, who disturbing explanation of his motives—he speculated that the police fed Hernandez was angry at Bristol for talking too much, the details of his confession and that Her- kicking him, and kicking a hole in his van, nandez in fact did not remember much of the crimes due to dissociation, stated that and he was angry at Ryan for screaming Hernandez had ‘‘personal memory up to and trying to escape. His explanation of and including having sex with Edna Bristol how he expressed that anger (rape, forced in the back of his van.’’ Dr. Gur’s dissocia- sodomy, and strangulation) suggests intention theory was similarly temporally limit- tional, premeditated actions and not disso- ed, noting that Hernandez’s ‘‘clinical pro- ciation or a lack of control that would file is further indication that he was in a negate the mens rea required for a first- dissociative state during his commission of degree murder conviction. As the Califor- the crimes, or at least during some por- nia Supreme Court correctly explained, tion of that epoch, e.g., when he killed or ‘‘clearly the killings occurred when the vic- inflicted post-mortem injuries.’’ (Empha- tims screamed and struggled to get away. sis added). Thus, even assuming Hernan- They occurred as a direct product of the dez dissociated during the murders, the sexual assaults and to silence the victims.’’

App. A - 13 HERNANDEZ v. CHAPPELL 557 Cite as 923 F.3d 544 (9th Cir. 2019)

Hernandez, 47 Cal. 3d at 348, 253 Cal. deficient performance. While ‘‘simply Rptr. 199, 763 P.2d 1289. forg[etting]’’ to subpoena a witness cer- Given the weakness of the omitted ex- tainly could constitute deficient perform- perts’ evaluations when compared to the ance, see, e.g., Lord v. Wood, 184 F.3d overwhelming evidence presented to the 1083, 1093–96 (9th Cir. 1999), the error did jury, we hold that there is no reasonable not rise to the level of deficient perform- possibility of a different outcome. See ance in this case. ‘‘While the Sixth Amend- Strickland, 466 U.S. at 694, 104 S.Ct. 2052. ment requires an attorney to look for evi- Thus, Hernandez’s ineffective assistance of dence that corroborates the defense he counsel claim predicated on counsel’s fail- pursues, the Sixth Amendment has not ure to present a diminished capacity de- been expanded to require an attorney to fense based on mental illness fails. hunt down such marginally relevant and indirectly beneficial evidence.’’ Hendricks C. Defense Counsel Was Neither Inef- v. Calderon, 70 F.3d 1032, 1040 (9th Cir. fective for Failing to Subpoena Kos- 1995). At best, Kostiuk may have testified tiuk as a Witness, Nor Was Hernan- that on a prior occasion, Hernandez and dez Prejudiced Ryan engaged in consensual sex. Such evi- [13] Hernandez argues that counsel dence has minimal probative value, espe- was ineffective for failing to call Laura cially in light of the significant evidence Kostiuk as a witness. Kostiuk, according to that, on the evening of her death, she was Hernandez, might have offered testimony brutally raped and sodomized. As the med- that Hernandez and Ryan had previously ical examiner explained, Ryan’s vagina and engaged in consensual sex. Hernandez anus suffered from ‘‘extremely rare’’ pre- contends that this evidence would have mortem bruising and tearing. Because ‘‘the undercut the state’s theory that he intend- failure to take a futile action can never be ed to rape Ryan. deficient performance,’’ Rupe v. Wood, 93 Prior to trial, Hernandez’s trial counsel F.3d 1434, 1445 (9th Cir. 1996), counsel did had planned to call Kostiuk as a defense not render ineffective assistance by failing witness and had subpoenaed her. But to call Kostiuk to testify during Hernan- when the trial date was continued, counsel dez’s trial. ‘‘simply forgot’’ to re-subpoena Kostiuk. Even assuming that counsel’s perform- Defense counsel explained that his failure ance was constitutionally deficient, as dis- to re-subpoena Kostiuk was due to his cussed, Hernandez did not suffer any prej- diagnosis of cancer around the time of the udice due to the overwhelming evidence of second, actual trial date. He would have his intent to rape and murder Ryan. wanted Kostiuk’s testimony ‘‘because the * * * issue was whether TTT [Hernandez] had voluntary or involuntary sexual inter- We affirm the district court’s denial of a course’’ with Ryan, and he ‘‘could [have writ of habeas corpus as to Hernandez’s done] a lot with [her testimony] and guilt-phase claims relating to the first-de- didn’t.’’ Hernandez’s counsel’s failure to gree murder convictions. call Kostiuk as a witness was based on AFFIRMED. neglect, not strategy. [14] Nevertheless, we agree with the , district court that counsel’s failure to call Kostiuk as a witness does not constitute

App. A - 14 HERNANDEZ v. CHAPPELL 871 Cite as 913 F.3d 871 (9th Cir. 2019)

1. Criminal Law O1888 Francis G. HERNANDEZ, Ineffective assistance of counsel Petitioner-Appellant, claims present mixed questions of law and v. fact. U.S. Const. Amend. 6.

Kevin CHAPPELL, Warden, California 2. Habeas Corpus O842, 846 State Prison at San Quentin, With respect to federal habeas peti- Respondent-Appellee. tions filed prior to the enactment of the Antiterrorism and Effective Death Penalty No. 11-99013 Act (AEDPA), Court of Appeals reviews United States Court of Appeals, questions of law or mixed questions of law Ninth Circuit. and fact de novo and the district court’s findings of fact for clear error. 28 Argued and Submitted September U.S.C.A. § 2254. 24, 2018 Pasadena, California 3. Criminal Law O1881 Filed January 14, 2019 To prevail on an ineffective assistance Background: Following affirmance of his of counsel claim, the defendant must show state court conviction on two counts of first both that counsel’s performance was defi- degree murder, two counts of rape, and cient, and that he suffered prejudice due to two counts of forcible sodomy, and his counsel’s deficiency. U.S. Const. Amend. death sentence, 47 Cal.3d 315, petitioner 6. sought federal habeas relief. The United O States District Court for the Central Dis- 4. Criminal Law 1883 trict of California, Ronald S.W. Lew, Sen- The essence of an ineffective assis- ior District Judge, 824 F.Supp.2d 1025, tance claim is that counsel’s unprofessional granted habeas petition in part, vacating errors so upset the adversarial balance death sentence and denying guilt-phase re- between defense and prosecution that the lief. Petitioner appealed. trial was rendered unfair and the verdict rendered suspect. U.S. Const. Amend. 6. Holdings: The Court of Appeals, Nguyen, Circuit Judge, held that: 5. Criminal Law O1882 (1) trial counsel rendered deficient per- The proper measure of attorney performance by failing to present dimin- formance with respect to an ineffective ished capacity defense based on mental assistance of counsel claim is reasonable- illness; ness under prevailing professional norms. U.S. Const. Amend. 6. (2) petitioner was not prejudiced by counsel’s failure to present diminished ca- 6. Criminal Law O1884 pacity defense; and While defense counsel is strongly pre- (3) counsel’s failure to subpoena potential sumed to have rendered adequate assis- witness did not amount to deficient tance, courts accord deference to counsel performance. only for strategic choices made after thorough investigation of law and facts rele- Affirmed. vant to plausible options. U.S. Const. Opinion, 878 F.3d 843, superseded. Amend. 6.

App. B - 15 872 913 FEDERAL REPORTER, 3d SERIES

7. Criminal Law O1890 11. Criminal Law O1912 An attorney’s ignorance of a point of Defense counsel’s failure to present law that is fundamental to his case com- diminished capacity defense based on de- bined with his failure to perform basic fendant’s mental illness did not prejudice research on that point is a quintessential defendant and, thus, did not constitute in- example of unreasonable performance un- effective assistance of counsel in murder der Strickland. U.S. Const. Amend. 6. and rape prosecution; given that jury 8. Criminal Law O1912 heard overwhelming evidence, which included physical evidence as well as defen- Defense counsel rendered deficient dant’s detailed confession, of defendant’s performance in murder and rape prosecu- specific intent to rape and kill both victims, tion by failing to present diminished capac- evidence of defendant’s diminished capaci- ity defense based on defendant’s mental ty would not have resulted in a reasonable illness; counsel admitted that he did not probability of a different outcome, as to know that diminished capacity based upon the extent expert opinions suggested that mental illness was an available defense defendant was incapable of forming the under then-existing California law, and requisite intent, those opinions failed to that he failed to investigate whether such a account for the striking similarities be- defense would be available even though he tween the two crimes and defendant’s de- had no prior experience presenting a di- tailed explanation of his actions, thoughts, minished capacity defense, and there was and motivations during the crimes. U.S. no reason to doubt counsel’s admission Const. Amend. 6. that he based his actions on lack of investigation and knowledge, rather than strate- 12. Criminal Law O1924 gic judgment. U.S. Const. Amend. 6. Defense counsel’s failure to subpoena 9. Criminal Law O1884 witness to testify in murder and rape prosecution did not amount to deficient per- Generally, a court considering an inef- formance; at best, witness may have testi- fective assistance of counsel claim credits fied that defendant and victim engaged in the statements of defense counsel as to consensual sex on a prior occasion, and whether their decisions at trial were, or such evidence had minimal probative value, were not, based on strategic judgments; especially in light of significant evidence where it would contradict counsel’s testi- that victim had been brutally raped and mony to presume that counsel’s conduct sodomized on the evening of her death. was strategic when counsel clearly stated U.S. Const. Amend. 6. otherwise, the court is guided by counsel’s own statements. U.S. Const. Amend. 6. 13. Criminal Law O1922 10. Criminal Law O1883 While the Sixth Amendment requires an attorney to look for evidence that cor- To establish prejudice in support of an roborates the defense he pursues, the ineffective assistance of counsel claim, the Sixth Amendment does not require an at- defendant must show a reasonable proba- torney to hunt down marginally relevant bility that, but for counsel’s unprofessional and indirectly beneficial evidence. U.S. errors, the result of the proceeding would Const. Amend. 6. have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. U.S. Const. Appeal from the United States District Amend. 6. Court for the Central District of Califor-

App. B - 16 HERNANDEZ v. CHAPPELL 873 Cite as 913 F.3d 871 (9th Cir. 2019) nia, Ronald S.W. Lew, Senior District the victims, mutilating their bodies, and Judge, Presiding, D.C. No. 2:90-cv-04638- leaving them near schools in Long Beach, RSWL. California. After his arrest, Hernandez confessed, walking the police through ev- Tracy Casadio (argued) and Margo A. ery detail of his crimes and his thoughts Rocconi, Deputy Federal Public Defend- and motivations as he committed them. In ers; Hilary Potashner, Federal Public April 1983, a jury convicted Hernandez of Defender; Office of the Federal Public two counts each of first-degree murder, Defender, Los Angeles, California; for forcible rape, and forcible sodomy, and Petitioner-Appellant. sentenced him to death. The California Gary A. Lieberman (argued) and Xiom- Supreme Court denied his state habeas ara Costello, Deputy Attorneys General; petitions. Jason Tran, Supervising Deputy Attorney Hernandez filed a federal habeas peti- General; Lance E. Winters, Senior Assis- tion alleging, among other claims, inef- tant Attorney General; Gerald A. Engler, fective assistance of trial counsel. After Chief Assistant Attorney General; Xavier extensive litigation, including a six-year Becerra, Attorney General; Office of the evidentiary hearing, the district court granted relief in part, vacating the death Attorney General, Los Angeles, California; sentence. The district court denied guilt- for Respondent-Appellee. phase relief. Kent S. Scheidegger and Kymberlee C. Hernandez now appeals the district Stapleton, Criminal Justice Legal Founda- court’s denial of relief as to the guilt-phase tion, Sacramento, California, for Amicus claims relating to his first-degree murder Curiae Criminal Justice Legal Foundation. convictions.1 We find that trial counsel’s performance was deficient in one respect— Before: Kim McLane WARDLAW, he should have investigated and consid- Milan D. SMITH, Jr., and Jacqueline H. ered presenting a diminished capacity de- NGUYEN, Circuit Judges. fense based on Hernandez’s mental condition. We hold, however, that Hernandez ORDER did not suffer any prejudice as a result of The prior opinion in this case, found at counsel’s deficient performance. Because Hernandez v. Chappell, 878 F.3d 843 (9th the evidence of his specific intent to rape Cir. 2017), is hereby withdrawn. A new and kill both victims was overwhelming opinion is being filed concurrently with when compared to the relatively weak di- this order. Further petitions for rehearing minished capacity evidence that counsel or rehearing en banc may be filed. could have presented, but failed to present, there was no reasonable probability of a OPINION different outcome in this case. We there- NGUYEN, Circuit Judge: fore affirm. In the winter of 1981, Francis Hernan- I. dez brutally raped, sodomized, and stran- BACKGROUND gled to death two women, Edna Bristol and Kathy Ryan. Hernandez committed A. The Murders of Bristol and Ryan the crimes five days apart and in a strik- In January 1981, Edna Bristol’s nude ingly similar manner, including strangling body was found near a middle school in

1. The state on appeal does not challenge the district court’s grant of penalty-phase relief.

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Long Beach, California. Five days later, ordered Bristol to ‘‘get in the back’’ of the Kathy Ryan’s nude body was found near van, where there was no exit, and ‘‘to take a high school in the same city. According off her clothes.’’ Hernandez explained that to a pathologist, Bristol and Ryan both he had intended to ‘‘let her out’’ or ‘‘let her died of asphyxiation due to strangulation go’’ after they ‘‘had sexual intercourse,’’ or suffocation, and their bodies suffered but he went ‘‘bezerk’’ because she was ‘‘extremely similar and extremely rare’’ kicking and screaming and damaging his trauma to the anal and vaginal areas, sug- van. He taped her ankles, wrists, and gesting a large object—consistent with a mouth ‘‘around the hair,’’ and then, as he baseball bat—had been inserted. Their described it, ‘‘I proceeded to fuck her in bodies were mutilated, with bite marks on her ass.’’ He pushed her body against the their breasts, and their pubic hair was hot engine cowling of his van to burn her singed. Bristol had ligature marks around nipple because he was ‘‘mad at her.’’ He her wrists and ankles. Ryan’s nose was then pushed ‘‘some piece of material’’ fractured, and a tic-tac-toe pattern had ‘‘over [Bristol’s] face’’ while holding her by been carved into her abdomen post-mor- the throat until she stopped moving. He tem. threw her body out of the van onto the On February 4, 1981, Hernandez was lawn of a middle school in Long Beach, arrested for the crimes. California. Thinking Bristol was still alive, Hernandez flicked matches onto her pubic B. Hernandez’s Detailed Confession area and another match ‘‘on her nipple’’ to Hernandez gave a detailed, taped con- ‘‘hurt her’’ for kicking him ‘‘in the nuts’’ fession. He chillingly recounted not only and kicking a hole in his van. his horrific acts, but also the thoughts and Hernandez’s confession also walked the feelings that went through his mind as he police through the night of Ryan’s death. committed the crimes. Hernandez ex- He had gone to play pool with friends, plained that on the night of Bristol’s death, including Ryan.2 After the group disband- he ‘‘was in a weird mood’’ and decided to ed, he went over to Ryan’s house and TTT ‘‘find a homosexual to beat up on.’’ He invited her into his van. When he tried to found a male victim, beat him up, and kiss her, ‘‘she sort of resisted.’’ She also robbed him ‘‘for his last ten dollars.’’ When refused his order to take off her clothes he was done, Hernandez was still feeling but then said, ‘‘oh, okay,’’ when he got ‘‘frustrated.’’ It was then that he picked up angry and ‘‘pushed her arms back.’’ At one Bristol hitchhiking. point, he ‘‘thought she wanted it in her He became angry when Bristol started ass,’’ and sodomized her. Like Bristol, telling him ‘‘about all her problems’’ and Ryan was screaming and kicking and, in ordered her out of his van. When she response, he ‘‘grabbed her, [held] onto her, refused, he began to hit her and physically and TTT then she gargled—she TTT sput- drag her out. Bristol then pleaded that tered up.’’ He thought that he ‘‘was chok- ‘‘she’d do anything,’’ and after he ‘‘thought ing her too hard’’ and ‘‘let go.’’ Hernandez about that for a minute,’’ he decided to told her ‘‘to mellow out’’ but when she drive to another location. Once parked, he started screaming again, he grabbed her

App. B - 18 HERNANDEZ v. CHAPPELL 875 Cite as 913 F.3d 871 (9th Cir. 2019) throat with one hand and covered her special circumstance, but affirmed the mouth with the other hand. Because ‘‘she judgment in all other respects. started struggling really bad,’’ he realized he ‘‘must have used too much pressure, D. Habeas Proceedings but then she stopped struggling.’’ He burned Ryan’s pubic hair with a lighter, In 1989, Hernandez filed a state habeas and decided to cut her stomach and nipple petition in the California Supreme Court, ‘‘to make the two bodies look different raising claims of ineffective assistance of from one another so that the police could counsel, which the California Supreme not link the cases together.’’ Hernandez Court summarily denied. Hernandez then took Ryan’s body to the high school ‘‘[b]e- filed a federal habeas petition and re- cause it was his understanding TTT that turned to state court to exhaust his claims. police sometimes think criminals return to The California Supreme Court summarily the scene of the crime, and they might denied Hernandez’s second habeas petition have been there waiting for him, had he as untimely and on the merits. Hernandez TTT gone back to the first location’’ where subsequently filed an amended federal pe- he left Bristol’s body. tition. The state filed a motion for summary judgment, which the district court C. Trial and Subsequent History granted in part and denied in part. The district court then ordered a bifurcated At trial, Hernandez’s counsel attempted evidentiary hearing as to Hernandez’s ju- to present a diminished capacity defense ror misconduct and ineffective assistance based solely on voluntary intoxication. Tri- of counsel claims. al counsel argued that Hernandez’s heavy drinking prevented him from forming the In 2011, the district court granted relief specific intent necessary for first-degree in part, vacating the death sentence partly murder. Counsel tried to persuade the jury because, at the penalty phase, counsel pre- that Hernandez’s intoxication caused Her- sented virtually no mitigating evidence. nandez to believe that the encounters with Had counsel investigated, he would have Bristol and Ryan were consensual, and discovered that Hernandez suffered from a that he did not intend to kill them. deeply troubled childhood and certain The jury was unconvinced and convicted mental deficiencies. On appeal, the state Hernandez of two counts of first-degree does not challenge the penalty-phase relief. murder, two counts of forcible rape, and As to the guilt phase, however, the dis- two counts of forcible sodomy, and found trict court denied the petition. There are true special circumstances: that each mur- two claims of ineffective assistance of der occurred during the commission of counsel that are relevant here. On the first rape and sodomy, and that he committed claim, the district court found that counsel more than one murder. People v. Hernan- was ineffective for failing to present men- dez, 47 Cal. 3d 315, 327, 253 Cal.Rptr. 199, tal health evidence to support a diminished 763 P.2d 1289 (1988). The jury returned a capacity defense, but that Hernandez did death sentence as to each murder. On each not suffer any prejudice. As to Hernan- count of rape and sodomy, the trial court dez’s claim that counsel was ineffective for sentenced Hernandez to eight years, to be failing to call Laura Kostiuk as a witness, served consecutively. the district court ruled that counsel’s per- On direct appeal, the California Su- formance was not deficient, and Hernan- preme Court vacated one multiple-murder dez was not prejudiced.

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II. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). ‘‘The essence JURISDICTION of an ineffective-assistance claim is that The district court granted a certificate counsel’s unprofessional errors so upset of appealability (‘‘COA’’) only on Hernan- the adversarial balance between defense dez’s claim that counsel was ineffective for and prosecution that the trial was ren- failing to call Kostiuk as a witness, declin- dered unfair and the verdict rendered sus- ing to certify the remaining ineffective aspect.’’ Kimmelman v. Morrison, 477 U.S. sistance of counsel claims. We treat Her- 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 nandez’s appeal from the district court’s (1986). ruling on the uncertified issues as an application for a COA, Fed. R. App. P. 22(b)(2), A. Counsel Rendered Ineffective Assis- and grant the application as to Hernan- tance by Failing to Investigate and dez’s claim that counsel was ineffective by Present a Diminished Capacity De- failing to investigate and present a dimin- fense Based on Mental Illness ished capacity defense based on mental Hernandez argues that his counsel was impairment, see 28 U.S.C. § 2253(c)(2). We constitutionally deficient by failing to pres- decline to grant a COA as to the remaining ent a diminished capacity defense based on claims. his mental illness. We agree.

III. [5, 6] ‘‘The proper measure of attorney performance remains simply reasonable- STANDARD OF REVIEW ness under prevailing professional norms.’’ [1, 2] Hernandez filed his federal habe- Strickland, 466 U.S. at 688, 104 S.Ct. 2052. as petition before the enactment of the While defense counsel ‘‘is strongly pre- Antiterrorism and Effective Death Penalty sumed to have rendered adequate assis- Act of 1996 (‘‘AEDPA’’), and therefore, tance,’’ we accord deference to counsel pre-AEDPA standards of review apply. only for ‘‘strategic choices made after thor- Carrera v. Ayers, 699 F.3d 1104, 1106 (9th ough investigation of law and facts rele- Cir. 2012). ‘‘Ineffective assistance of coun- vant to plausible options.’’ Id. sel claims present mixed questions of law [7] ‘‘An attorney’s ignorance of a point and fact.’’ Id. Under pre-AEDPA law, we of law that is fundamental to his case review questions of law or mixed questions combined with his failure to perform basic of law and fact de novo. Id. ‘‘We review the research on that point is a quintessential district court’s findings of fact for clear example of unreasonable performance un- error.’’ Id. (quoting Robinson v. Schriro, der Strickland.’’ Hinton v. Alabama, 571 595 F.3d 1086, 1099 (9th Cir. 2010) ). U.S. 263, 274, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014); see also United States v. Span, 75 IV. F.3d 1383, 1390 (9th Cir. 1996) (finding counsel’s performance deficient because DISCUSSION his errors with regard to the jury instruc- [3, 4] To prevail on an ineffective assis- tions were based on ‘‘a misunderstanding tance of counsel claim, the defendant must of the law’’ rather than strategic judg- show both that counsel’s performance was ment); Morris v. California, 966 F.2d 448, deficient, and that he suffered prejudice 454–55 (9th Cir. 1991) (finding counsel’s due to counsel’s deficiency. Strickland v. performance deficient because he had not

App. B - 20 HERNANDEZ v. CHAPPELL 877 Cite as 913 F.3d 871 (9th Cir. 2019)

‘‘done his homework’’ in researching the decided not to present mental illness evi- relevant law). dence in order to limit potentially damaging evidence that Hernandez was a socio- [8] Here, Hernandez’s trial counsel admitted that he was ignorant of the law that path. ‘‘Generally, we credit the statements was central to a diminished capacity de- of defense counsel as to whether their fense, which the district court correctly decisions at trial were—or were not— characterized as Hernandez’s ‘‘best possi- based on strategic judgments.’’ Doe v. Ay- ble defense.’’ Counsel did not realize that ers, 782 F.3d 425, 445 (9th Cir. 2015). diminished capacity based upon mental ill- Where, as here, ‘‘it ‘would contradict ness was an available defense under then- [counsel’s] testimony’ ’’ to presume that existing California law. See People v. counsel’s conduct was strategic when coun- Saille, 54 Cal. 3d 1103, 1110, 2 Cal.Rptr.2d sel clearly stated otherwise, we are guided 364, 820 P.2d 588 (1991) (‘‘[S]omeone who by counsel’s own statements. See id. (quot- is unable, because of intoxication or mental ing Heishman v. Ayers, 621 F.3d 1030, illness, to comprehend his duty to govern 1040 (9th Cir. 2010) ). To do otherwise his actions in accord with the duty imposed would ‘‘contraven[e] the Supreme Court’s by law, cannot act with malice afore- admonition against adopting a post hoc thought.’’). Rather than focus on Hernan- rationalization of counsel’s conduct instead dez’s mental condition, counsel instead of relying on an accurate description of chose to limit the evidence to Hernandez’s their deliberations.’’ Id. (internal quotation intoxication because, as he explained, he marks omitted). We have no reason to mistakenly believed that the defense doubt counsel’s admission that he based ‘‘could only be based on a lack of capacity his actions on lack of investigation and arising from the use of drugs and/or alco- knowledge, not on any strategic judgment. hol.’’ Worse still, counsel admitted that he Accepting counsel’s explanations, his con- had no prior experience with presenting duct was unreasonable under Strickland. the defense, and yet he ‘‘neither investigated, nor made a reasonable decision not to B. Counsel’s Failure to Present a Di- investigate’’ whether the defense would be minished Capacity Defense Based available. See Kimmelman, 477 U.S. at on Mental Illness Did Not Result in 385–87, 106 S.Ct. 2574 (holding that coun- Prejudice to Hernandez sel’s performance was deficient where his [10] To establish prejudice, the defen- actions ‘‘betray[ed] a startling ignorance of dant must show ‘‘a reasonable probability the law[—]or a weak attempt to shift that, but for counsel’s unprofessional er- blame for inadequate preparation’’). Be- rors, the result of the proceeding would cause counsel’s failure to investigate and have been different. A reasonable probabil- present a diminished capacity defense ity is a probability sufficient to undermine based on mental illness was unreasonable, confidence in the outcome.’’ Strickland, his assistance to Hernandez in this respect 466 U.S. at 694, 104 S.Ct. 2052. To make was constitutionally deficient. this assessment, we ‘‘compare the evidence [9] We are unpersuaded by the state’s that actually was presented to the jury argument that we should reject counsel’s with the evidence that might have been stated explanations in favor of hypothetical presented had counsel acted differently.’’ strategic choices that could have supported Clark v. Arnold, 769 F.3d 711, 728 (9th counsel’s conduct. According to the state, a Cir. 2014) (quoting Murtishaw v. Wood- reasonable defense attorney could have ford, 255 F.3d 926, 940 (9th Cir. 2001) ). A

App. B - 21 878 913 FEDERAL REPORTER, 3d SERIES defendant faces a higher burden of show- 47 Cal. 3d at 328, 341, 253 Cal.Rptr. 199, ing prejudice at the guilt phase than at the 763 P.2d 1289. Both victims were enticed penalty phase. See Raley v. Ylst, 470 F.3d into Hernandez’s van, raped, and sodom- 792, 802 (9th Cir. 2006) (‘‘The bar for ized. Id. at 332–33, 253 Cal.Rptr. 199, 763 establishing prejudice is set lower in P.2d 1289. Hernandez taped Bristol’s death-penalty sentencing cases than in wrists, ankles, and mouth with duct tape; guilt-phase challenges and noncapital tape was also found near Ryan’s body. Id. cases.’’). at 328, 332, 253 Cal.Rptr. 199, 763 P.2d 1289. Both victims suffered ‘‘extremely 1. The Jury Heard Overwhelming Ev- similar and extremely rare’’ wounds to the idence of Hernandez’s Specific In- vagina and anus, likely caused by forcible tent to Rape and Kill Bristol and insertion of a large object, possibly a base- Ryan ball bat. After each woman struggled and screamed, Hernandez strangled them. [11] Although Hernandez’s trial coun- Both women were found in the early morn- sel’s performance was deficient, Hernan- ing hours, lying naked on their backs, dez must also show that he suffered prej- abandoned in grassy fields near schools. udice due to counsel’s conduct. See Hernandez threw both of their clothes out Strickland, 466 U.S. at 687, 104 S.Ct. of his van after driving away from their 2052. To succeed here, Hernandez must bodies. Their bodies bore other similar show a reasonable probability of a differ- injuries—wounds inflicted by punches to ent outcome as to both first-degree mur- the mouth, significant bruising around der theories that were available to the their necks, bite marks on their breasts, jury: (1) willful, deliberate, and premedi- ‘‘puncture-wound type injuries to the nip- tated murder, and (2) felony murder with ples,’’ and ‘‘singed or burned pubic hair.’’ rape as the predicate felony. That is be- The injuries ‘‘carried significant sexual cause the jury had two independent paths overtones,’’ and ‘‘specifically sexual vio- to convict Hernandez of first-degree mur- lence [was] repeated in almost every detail der. While the jury was required to find with both victims.’’ Id. at 350, 253 Cal. that the killing was willful, deliberate, Rptr. 199, 763 P.2d 1289. The substantial premeditated, and with malice afore- similarities between the crimes showed thought under the first theory, it needed that Hernandez intended and premeditat- only to find that Hernandez had the spe- ed both rapes and murders. Cf. id. at 341, cific intent to rape under the second the- 253 Cal.Rptr. 199, 763 P.2d 1289 (charac- ory of felony murder. See Hernandez, 47 terizing the offenses as ‘‘ ‘signature’ Cal. 3d at 346–51, 253 Cal.Rptr. 199, 763 crimes—because of the unique nature of P.2d 1289. each killing, it was reasonable to believe Ample evidence of Hernandez’s specific the same person committed them both’’). intent to rape and kill both Bristol and Second, Hernandez’s confession was Ryan supported the jury’s verdict. First, powerful evidence of his intent. He ex- the two crimes were committed within plained the beginning of his attack on Bris- days of each other and were strikingly tol as follows: similar, strongly suggesting premeditation. [Bristol] started telling me about all her Bristol and Ryan were around the same problems, and I was mad, and I told age—twenty-one and sixteen, respective- her not to tell me about her problems, ly—and both had shoulder-length blonde and then she started bitching, and I just hair and similar body types. Hernandez, stopped my van. I got out, walked

App. B - 22 HERNANDEZ v. CHAPPELL 879 Cite as 913 F.3d 871 (9th Cir. 2019)

around and told her to get out, and she ed to fuck her in the ass. TTT [A]nd then wouldn’t get out, so I hit her, and I I told her that if she was good after dragged her out of my van, and then she that; I told her if she was going to be told me that she’d do anything, and I cool, I’d let her up[,] and I was going to thought about that for a minute, and—I let her go, and then when I let her up, don’t know it was just that I was drunk she started just kicking and hitting, and and I was in a weird mood, and I just kicking and hitting me, so I just put my took her and I threw her in the back TTT hand over her and I grabbed some piece and then I told her to get out and get in of material TTT I pushed that over her the front, TTT and I proceeded to drive face TTT and then—uh—she stopped TTTT moving. (Emphases added). Hernandez parked at Hernandez also admitted to ‘‘forc[ing] another location and told Bristol to ‘‘get in [Bristol] up against the hot engine cowling the back’’ and ‘‘take off her clothes.’’ There of the van in order to burn her breasts.’’ was no exit from the back of the van. Hernandez, 47 Cal. 3d at 332, 253 Cal. Hernandez, 47 Cal. 3d at 345 n.18, 253 Rptr. 199, 763 P.2d 1289. His motivation Cal.Rptr. 199, 763 P.2d 1289. Hernandez was clear by his own admission: he suffo- described what happened next: cated Bristol as punishment for not ‘‘being [We] had sexual intercourse once, then I cool’’ after he violently raped and sodom- was getting up and getting ready to let ized her. And the acts Hernandez took to her go, and I didn’t really have her—you render Bristol ‘‘totally defenseless’’—at- know—forcibly. I guess maybe she tacking her in the back of the van, from thought I did, but I don’t know—you which she could not escape, and taping her know. I proceeded to get up and get my arms, legs, and mouth—also suggested clothes on, and I was going to let her out premeditation and intent to kill. See Crit- TTTT tenden v. Ayers, 624 F.3d 943, 963 (9th (Emphases added). While Hernandez tried Cir. 2010) (viewing petitioner’s gagging to minimize his conduct by claiming that and tying of his victims as evidence of they had consensual intercourse, his state- premeditation supporting a first-degree ment reveals, in several respects, his murder conviction). In fact, Bristol’s awareness of Bristol’s lack of consent and ‘‘wrists and ankles had been bound so his specific intent to rape her—pondering tightly that there were ligature marks on her plea that she would ‘‘do anything[;]’’ the skin and hemorrhage in the underlying driving to a different location; ordering her tissues.’’ Hernandez, 47 Cal. 3d at 344–45, to get into the back of the van and take off 253 Cal.Rptr. 199, 763 P.2d 1289. her clothes; and, after raping her, admit- Hernandez’s confession contains even ting that he was preparing to ‘‘let her go’’ more compelling details of his intent to or ‘‘let her out.’’ rape and murder Ryan. Ryan and Hernan- Tragically, Hernandez’s violence only in- dez were friends, and spent time together creased as the evening progressed. As in a group the evening of her death. The Bristol struggled and screamed, Hernan- California Supreme Court described Her- dez went ‘‘bezerk,’’ and, in his own words: nandez’s actions as follows: I just threw her over, taped her up TTT I During the evening of playing pool and taped her wrists. I taped her legs TTT drinking beer, it was evident to several [a]round the ankles, and then I taped in the group that defendant was focusing her around the hair, and then I proceed- considerable unwelcome attention on

App. B - 23 880 913 FEDERAL REPORTER, 3d SERIES

Ryan. He tried to put his arms around Bristol, was screaming, kicking, and resist- her, pinched her in the buttocks and put ing. Hernandez described his response as his hands on her hips, but she kept follows: pushing him away. TTT Outside, defen- I grabbed her, [held] onto her, and— dant told Jackson he wanted to make a uh—then she gargled—she like sput- ‘‘sandwich’’ out of Ryan; he wanted to tered up—you know—I guess I was ‘‘fuck her in the butt until she screams.’’ choking her too hard, and then I let go, He told Jackson he would ‘‘get some and then she was—I told her to mellow tonight or tomorrow night.’’ out and to start putting her clothes on, Hernandez, 47 Cal. 3d at 329–30, 253 Cal. and I turned around to start doing it Rptr. 199, 763 P.2d 1289.3 Hernandez’s again, and then she started screaming aggressive unwanted sexual touching of again and everything, and I just—I Ryan at the bar, and his stated intent to don’t know—I grabbed her, and I just— later ‘‘make a ‘sandwich’ ’’ out of Ryan and I tried to shut her up and TTT [g]rabbed ‘‘fuck her in the butt until she screams’’ her around the throat TTT [w]ith one of strongly suggest that he planned ahead of my hands, and put one of my hands over time to sexually assault and rape her. That her mouth to keep her quiet. same evening, Ryan ended up in his van, and although Hernandez again tried to As Hernandez strangled Ryan, he was minimize his conduct by claiming that she thinking of how he had killed Bristol in the ‘‘submitted freely,’’ the evidence suggests same way just days before. Ryan had sig- that she was forced. Before the group of nificant bruising around her neck—show- friends dispersed from the bar, Ryan’s ing his intent to kill her, not simply quiet friend overheard Hernandez asking Ryan her screams. See People v. Frank, 38 Cal to meet up with him after the gathering, 3d. 711, 733–34, 214 Cal.Rptr. 801, 700 and Ryan responding ‘‘no.’’ Hernandez ad- P.2d 415 (1985) (stating that ‘‘strangulation mitted to the police that Ryan was ‘‘hesi- TTT [is] a manner of killing [that] shows at tant’’ about having sex with him but when least a deliberate intent to kill’’ and that he got ‘‘mad,’’ she finally ‘‘said oh, okay’’ can ‘‘support an inference of premeditation because he had pushed her arms down and and deliberation’’). Significantly, not only was about to force himself upon her. De- was he fully aware of his actions, Hernan- spite Hernandez’s self-serving statements dez also had the presence of mind to con- minimizing the amount of force used, his template the consequences. After he killed intent to rape Ryan is clear. Ryan, he cut her torso with a piece of glass Hernandez’s confession, coupled with in a deliberate attempt to make her body the physical evidence, also revealed his look different from Bristol’s. Hernandez’s intent to murder Ryan. After she was chilling insight into his own motivations raped and forcibly sodomized, Ryan, like gave the jury powerful, direct evidence of

3. Ryan’s stepmother also testified to suspi- going out to play pool, but her pool cue and cious circumstances surrounding her daugh- jacket were on the living room floor. Id. at ter’s room. The morning after Ryan’s death, 329, 253 Cal.Rptr. 199, 763 P.2d 1289. ‘‘[Her] her stepmother ‘‘found the living room lights purse was outside on the ground and items still on and the drapes and sliding glass door from the purse were spilled out.’’ Id. The jury TTT open. [H]er bedroom window was open could have believed that Hernandez kid- Hernandez and missing its screen.’’ , 47 Cal. napped Ryan, which would support a finding 3d at 328–29, 253 Cal.Rptr. 199, 763 P.2d of specific intent to rape. 1289. Ryan had told her stepmother she was

App. B - 24 HERNANDEZ v. CHAPPELL 881 Cite as 913 F.3d 871 (9th Cir. 2019) his willfulness, deliberation, and premedi- him incapable of forming the requisite in- tation. tent. See Clark, 769 F.3d at 728 (quoting Finally, the level of detail in Hernan- Murtishaw, 255 F.3d at 940). dez’s confession provided further compel- At his post-conviction hearing, Hernan- ling proof that he was aware of and intend- dez presented testimony from five experts: ed his actions. In a largely chronological psychologist June Madsen Clausen, psychi- fashion, Hernandez walked the police atrist Dorothy Otnow Lewis, criminologist through the events leading up to the rapes Sheila Balkan, clinical psychologist Charles and murders, including very specific de- Sanislow, and neuropsychologist Ruben scriptions of his actions. Apart from detail- Gur. Hernandez v. Martel, 824 F.Supp.2d ing his thoughts and motivations, see su- 1025, 1043 (C.D. Cal. 2011). Dr. Sanislow’s pra, Hernandez admitted to mutilating and Dr. Gur’s testimony was used to rebut both of his victims’ bodies and described the findings of the state’s expert, clinical the nature of the markings in detail. Her- psychologist Daniel Martell.4 Id. at 1062– nandez described burning Bristol and 65. Ryan’s pubic hair, explaining that he acted out of anger. He specifically remembered Dr. Sanislow merely reviewed and com- burning Bristol’s left breast with a match, mented on Martell’s discredited evaluation distinguishing that burn from the burns to of Hernandez. He found that the absence her right breast caused by pushing her up of bipolar indications in Martell’s then- against the hot car during forcible sodomy. recent testing of Hernandez ‘‘[was] not a He recounted cutting Ryan’s nipple with a sufficient basis on which to conclude that piece of broken glass. Significantly, Her- Mr. Hernandez is not bipolar,’’ and that a nandez described all these details before negative finding on the administered psy- seeing any pictures of Bristol or Ryan’s chometric test ‘‘does not rule out the pres- bodies. ence or past presence of psychopathology (e.g., dissociative disorders, bipolar or oth- In sum, the jury heard overwhelming er affective disorders).’’ (Emphases add- evidence that Hernandez had the specific ed). While his conclusions were sufficient, intent to rape both Bristol and Ryan, and among other reasons, to lead the district that he murdered both women willfully, court to discount Martell’s evaluation, they deliberately, and with premeditation. are certainly not a conclusive diagnosis of 2. The Relatively Weak Diminished bipolar disorder. Capacity Evidence Would Not Dr. Gur, the second rebuttal expert, be- Have Resulted in a Reasonable lieved Hernandez suffers from brain dys- Probability of a Different Out- function. He found ‘‘clear[ ] indicat[ions] come that [ ] Hernandez has deficits in under- The strength of the evidence of Hernan- standing and interpreting facial expres- dez’s intent to rape and kill contrasts sions of affect, which would provide’’ the sharply with the relatively weak ‘‘evidence basis ‘‘for such confusion and mispercep- that might have been presented had coun- tions to have occurred during the commis- sel acted differently’’—specifically, evi- sion of the crimes[,] TTT interfer[ing] with dence that his mental condition rendered his ability to comprehend and formulate an

4. We give no independent consideration to ogy and credibility. See Hernandez, 824 Martell’s findings because the district court F.Supp.2d at 1056. found significant problems with his methodol-

App. B - 25 882 913 FEDERAL REPORTER, 3d SERIES appropriate response to the victims’ ex- The final habeas expert was Dr. Clau- pressions of resistance and fear,’’ and ‘‘sig- sen, whose opinion comes closest to stating nificantly interfer[ing] with his ability to definitively that Hernandez could not have make the right judgment.’’ But a lack of had the necessary specific intent. Dr. Clau- good judgment is not equivalent to the sen opined that ‘‘Hernandez was in a trau- inability to form specific intent. Moreover, ma-induced dissociative state’’ at the time Hernandez’s own statements—even those of his crimes, ‘‘and as a result, has no made to Dr. Gur himself during their eval- subsequent actual recollection of the 5 uation —belie the notion that Hernandez events that transpired.’’ But the sugges- could not perceive the emotions of his vic- tion by Dr. Clausen that Hernandez was in tims. On the contrary, Hernandez was able a dissociative state and ‘‘had no subse- to articulate that his victims were afraid, quent actual recollection’’ of his crimes is did not consent to sexual activity, and re- totally contradicted by his detailed confes- sisted him. And while, in deposition, Dr. sion, the voluntariness and reliability of Gur concluded that ‘‘either schizophrenia which Hernandez does not dispute. or bipolar illness is probably applicable in his case,’’ he also admitted that Hernandez Even generously construed, these opin- could suffer from something else entirely, ions are grossly inadequate to undermine ‘‘such as attention deficit, hyperactivity the evidence that Hernandez was capable disorder, [or] impulse control.’’ Hernandez, of forming, and in fact formed, the intent 824 F.Supp.2d at 1063 (emphasis added) to rape and kill Bristol and Ryan. First, (quoting Dr. Gur’s Dep. Tr.). the experts fail to account for the striking Dr. Lewis diagnosed Hernandez with similarities between the two crimes. Dr. psychosis and bipolar disorder, found that Gur theorized that mental impairments he had ‘‘compromised mental functioning,’’ like Hernandez’s could cause someone to and concluded that his ‘‘capacity to form ‘‘engage in a complex set of behaviors the specific intent to rape and kill[ ] was without intent or premeditation,’’ leading substantially impaired’’ at the time he to ‘‘highly organized if somewhat ritualistic committed the crimes. Dr. Balkan, a crimi- behavior.’’ But Hernandez’s behavior does nologist, provided a social history of Her- not suggest ritual so much as it expresses nandez’s life and otherwise largely quoted an intent to rape and murder Bristol and Dr. Lewis’s conclusions. While these evalu- Ryan because, as Hernandez himself ex- ations raise concerns about Hernandez’s plained, he was angry at their resistance. mental stability, they do not show that And none of the other experts even at- Hernandez lacked the ability to form the tempted to explain how Hernandez could necessary specific intent for these crimes. have committed two such similar crimes Dr. Lewis found Hernandez’s mental state within a five-day period without intending to be ‘‘compromised’’ and ‘‘substantially to do so. impaired,’’ but not necessarily inconsistent with the ability to form specific intent to Second, the experts’ reports also fail to murder and rape. And, as she acknowl- counter the overwhelming evidence that edged, no single factor in Hernandez’s dif- Hernandez intended to rape Bristol and ficult life accounts for his violent crimes. Ryan. The habeas experts uncovered no

App. B - 26 HERNANDEZ v. CHAPPELL 883 Cite as 913 F.3d 871 (9th Cir. 2019) evidence to suggest Hernandez was in a son, 677 F.2d 706, 709 (9th Cir. 1982). dissociative state when he ‘‘thought about’’ Moreover, while Drs. Gur and Lewis make Bristol’s offer to ‘‘do anything’’ to save much of the fact that Hernandez is persis- herself from his violence; when, earlier in tently ‘‘unable’’ to explain why he commit- the evening, he sexually harassed Ryan ted the brutal murders, this assertion is and bragged of plans to ‘‘get some’’ later; squarely contradicted by the record. Her- or when he pushed Ryan’s arms down and nandez provided a plausible, albeit deeply raped her after she said no to sexual inter- disturbing explanation of his motives—he course. In fact, even Dr. Clausen, who was angry at Bristol for talking too much, speculated that the police fed Hernandez kicking him, and kicking a hole in his van, the details of his confession and that Her- and he was angry at Ryan for screaming nandez in fact did not remember much of and trying to escape. His explanation of the crimes due to dissociation, stated that how he expressed that anger (rape, forced Hernandez had ‘‘personal memory up to sodomy, and strangulation) suggests inten- and including having sex with Edna Bristol tional, premeditated actions and not disso- in the back of his van.’’ Dr. Gur’s dissocia- ciation or a lack of control that would tion theory was similarly temporally limit- negate the mens rea required for a first- ed, noting that Hernandez’s ‘‘clinical pro- degree murder conviction. As the Califor- file is further indication that he was in a nia Supreme Court correctly explained, dissociative state during his commission of ‘‘clearly the killings occurred when the vic- the crimes, or at least during some por- tims screamed and struggled to get away. tion of that epoch, e.g., when he killed or They occurred as a direct product of the inflicted post-mortem injuries.’’ (Empha- sexual assaults and to silence the victims.’’ sis added). Thus, even assuming Hernan- Hernandez, 47 Cal. 3d at 348, 253 Cal. dez dissociated during the murders, the Rptr. 199, 763 P.2d 1289. experts’ conclusions actually support the inference that Hernandez was at least Given the weakness of the omitted ex- aware of, and intended, his actions during perts’ evaluations when compared to the the rapes. The intent to rape alone is overwhelming evidence presented to the enough to support the murder convictions. jury, we hold that there is no reasonable possibility of a different outcome. See Finally, the experts’ dissociation theory Strickland, 466 U.S. at 694, 104 S.Ct. 2052. fails to account for Hernandez’s detailed Thus, Hernandez’s ineffective assistance of explanation of his actions, thoughts, and counsel claim predicated on counsel’s fail- motivations during the crimes. Drs. Gur and Lewis surmised that Hernandez’s con- ure to present a diminished capacity de- fession suggested that he was in ‘‘an al- fense based on mental illness fails. tered mental state’’ on the nights of the C. Defense Counsel Was Neither Inef- crimes based on his statement that he ‘‘wasn’t even feeling [that] [he] did it,’’ and fective for Failing to Subpoena Kos- his request for psychiatric help because he tiuk as a Witness, Nor Was Hernan- ‘‘[didn’t] know what would make [him] do dez Prejudiced this.’’ But ‘‘a reasonable jury could have [12] Hernandez argues that counsel easily chosen to disbelieve [these] self- was ineffective for failing to call Laura serving’’ statements in light of Hernan- Kostiuk as a witness. Kostiuk, according to dez’s extensive account of his innermost Hernandez, might have offered testimony thoughts and motivations on the nights of that Hernandez and Ryan had previously the crimes. See United States v. Nichol- engaged in consensual sex. Hernandez

App. B - 27 884 913 FEDERAL REPORTER, 3d SERIES contends that this evidence would have mortem bruising and tearing. Because ‘‘the undercut the state’s theory that he intend- failure to take a futile action can never be ed to rape Ryan. deficient performance,’’ Rupe v. Wood, 93 Prior to trial, Hernandez’s trial counsel F.3d 1434, 1445 (9th Cir. 1996), counsel did had planned to call Kostiuk as a defense not render ineffective assistance by failing witness and had subpoenaed her. But to call Kostiuk to testify during Hernan- when the trial date was continued, counsel dez’s trial. ‘‘simply forgot’’ to re-subpoena Kostiuk. Even assuming that counsel’s perform- Defense counsel explained that his failure ance was constitutionally deficient, as dis- to re-subpoena Kostiuk was due to his cussed, Hernandez did not suffer any prej- diagnosis of cancer around the time of the udice due to the overwhelming evidence of second, actual trial date. He would have his intent to rape and murder Ryan. wanted Kostiuk’s testimony ‘‘because the * * * issue was whether TTT [Hernandez] had voluntary or involuntary sexual inter- We affirm the district court’s denial of a course’’ with Ryan, and he ‘‘could [have writ of habeas corpus as to Hernandez’s done] a lot with [her testimony] and guilt-phase claims relating to the first-de- didn’t.’’ Hernandez’s counsel’s failure to gree murder convictions. call Kostiuk as a witness was based on AFFIRMED. neglect, not strategy. [13] Nevertheless, we agree with the district court that counsel’s failure to call , Kostiuk as a witness does not constitute deficient performance. While ‘‘simply forg[etting]’’ to subpoena a witness certainly could constitute deficient performance, see, e.g., Lord v. Wood, 184 F.3d APPLIED UNDERWRITERS, INC., 1083, 1093–96 (9th Cir. 1999), the error did a Nebraska Corporation, not rise to the level of deficient perform- Plaintiff-Appellant, ance in this case. ‘‘While the Sixth Amend- v. ment requires an attorney to look for evidence that corroborates the defense he Larry J. LICHTENEGGER; J. Dale Deb- pursues, the Sixth Amendment has not ber; Providence Publications, LLC, a been expanded to require an attorney to California Limited Liability Compa- hunt down such marginally relevant and ny, Defendants-Appellees. indirectly beneficial evidence.’’ Hendricks No. 17-16815 v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). At best, Kostiuk may have testified United States Court of Appeals, that on a prior occasion, Hernandez and Ninth Circuit. Ryan engaged in consensual sex. Such evi- Argued and Submitted December 18, dence has minimal probative value, espe- 2018 San Francisco, California cially in light of the significant evidence that, on the evening of her death, she was Filed January 15, 2019 brutally raped and sodomized. As the med- Background: Financial services company ical examiner explained, Ryan’s vagina and brought action under Lanham Act alleging anus suffered from ‘‘extremely rare’’ pre- infringement of its trademarks. The Unit-

App. B - 28 HERNANDEZ v. CHAPPELL 843 Cite as 878 F.3d 843 (9th Cir. 2017)

and fact de novo on habeas corpus petition, Francis G. HERNANDEZ, and reviews its findings of fact for clear Petitioner–Appellant, error.

v. 3. Criminal Law O1912 Kevin CHAPPELL, Warden, California Failure by state trial counsel for habe- State Prison at San Quentin, as petitioner, convicted in state court on Respondent–Appellee. two counts of capital murder, to know or No. 11-99013 find out that diminished capacity defense based on mental impairment was available United States Court of Appeals, to petitioner, under California law, and his Ninth Circuit. failure to investigate and present such a Argued and Submitted January 21, defense, was deficient performance as 2015 Pasadena, California would support petitioner’s ineffective assis- Filed December 29, 2017 tance of counsel claim; counsel was wrong that evidence of mental impairment would Background: Following affirmance of his not support a diminished capacity defense, state court conviction on two counts of first counsel would have learned, doing minimal degree murder, two counts of rape, and work, that at the time of the crimes, Cali- two counts of forcible sodomy, and his fornia recognized diminished capacity de- death sentence, petitioner sought federal fense, and counsel did not present substan- habeas relief. The United States District tial credible evidence of defendant’s mental Court for the Central District of Califor- health that could have negated his intent nia, Ronald S.W. Lew, Senior District at the time of the crimes. U.S. Const. Judge, 824 F.Supp.2d 1025, granted habe- Amend. 6. as petition in part, vacating death penalty. Petitioner appealed. 4. Criminal Law O1882 Holdings: The Court of Appeals, Rein- Deficient performance required to es- hardt, Circuit Judge, held that: tablish ineffective assistance of counsel re- (1) petitioner’s trial counsel’s performance quires a showing that counsel’s perform- was deficient, and ance fell below an objective standard of (2) petitioner’s trial counsel’s deficient reasonableness at the time of the trial. performance prejudiced petitioner. U.S. Const. Amend. 6. Reversed and remanded. 5. Criminal Law O1871 Nguyen, Circuit Judge, filed separate Defense counsel is strongly presumed opinion concurring in part and dissenting to have rendered adequate assistance and in part. made all significant decisions in the exercise of professional judgment. U.S. Const. 1. Criminal Law O1888 Amend. 6. Ineffective assistance of counsel 6. Criminal Law O1884 claims present mixed questions of law and On ineffective assistance of counsel fact. U.S. Const. Amend. 6. claim, deference to counsel is owed only to 2. Habeas Corpus O842, 846 strategic decisions made after thorough Court of Appeals reviews district investigation of law and facts relevant to court’s resolution of mixed questions of law plausible options. U.S. Const. Amend. 6.

App. C - 29 844 878 FEDERAL REPORTER, 3d SERIES

7. Criminal Law O1882 harbored substantial doubt about petition- On ineffective assistance of counsel er’s capacity to form specific intent to rape claims, where counsel has provided the or kill, and thus petitioner’s state trial reason for his conduct, and the court has counsel’s failure to present diminished ca- no reason to doubt the validity of that pacity defense based on mental impair- explanation, the relevant inquiry is wheth- ment prejudiced petitioner in state capital er the stated reason was objectively unrea- murder trial, as would support petitioner’s sonable. U.S. Const. Amend. 6. ineffective assistance of counsel claim; mental impairment was best defense avail- O 8. Criminal Law 1888 able to petitioner, a successful defense Courts are not to indulge post hoc would have reduced the first degree mur- rationalization for counsel’s decisionmak- der convictions to lesser offenses, defenses ing that contradicts the available evidence presented at trial were weak and merit- of counsel’s actions on ineffective assis- less, evidence supporting diminished ca- tance of counsel claims. U.S. Const. pacity defense was available to petitioner’s Amend. 6. counsel, and jury did not hear that evidence. U.S. Const. Amend. 6. 9. Criminal Law O1884 On ineffective assistance of counsel 13. Criminal Law O1883 claim, a court credits the statements of To establish prejudice as would sup- defense counsel as to whether their deci- port ineffective assistance of counsel claim, sions at trial were, or were not, based on a defendant must show a reasonable prob- strategic judgments. U.S. Const. Amend. ability that, but for counsel’s unprofession- 6. al errors, the result of the proceeding would have been different; a ‘‘reasonable 10. Criminal Law O1882 probability’’ is a probability sufficient to On ineffective assistance of counsel undermine confidence in the outcome. claims, only where counsel’s conduct is not U.S. Const. Amend. 6. explained in the record, or the explanation See publication Words and Phrases contradicts the record, does the court en- for other judicial constructions and tertain the range of possible reasons coun- definitions. sel may have had for proceeding as he did. 14. Criminal Law O1883 U.S. Const. Amend. 6. When a defendant challenges a convic- 11. Criminal Law O1890 tion based on ineffective assistance of An attorney’s ignorance of a point of counsel, the question is whether there is a law that is fundamental to his case com- reasonable probability that, absent coun- bined with his failure to perform basic sel’s errors, the factfinder would have had research on that point is a quintessential a reasonable doubt respecting guilt. U.S. example of unreasonable performance as Const. Amend. 6. would establish ineffective assistance of 15. Criminal Law O1883 counsel. U.S. Const. Amend. 6. In determining whether there is a rea- 12. Criminal Law O1912 sonable probability that, absent errors, There was reasonable probability that, factfinder would have had a reasonable upon hearing habeas petitioner’s defense doubt respecting guilt, as would establish of diminished capacity based on mental prejudice required to support ineffective impairment, at least one juror would have assistance of counsel claim, court contrasts

App. C - 30 HERNANDEZ v. CHAPPELL 845 Cite as 878 F.3d 843 (9th Cir. 2017) the evidence that actually was presented to Judge, Presiding, D.C. No. 2:90-cv-04638- the jury with that which could have been RSWL presented had counsel acted appropriately, Tracy Casadio (argued) and Margo A. and then asks whether that omitted evi- Rocconi, Deputy Federal Public Defend- dence might have created reasonable ers; Sean K. Kennedy, Federal Public doubt in the mind of at least one reason- Defender; Office of the Federal Public able juror. U.S. Const. Amend. 6. Defender, Los Angeles, California; for 16. Criminal Law O1912 Petitioner–Appellant. A federal court is particularly likely to Gary Lieberman (argued) and Xiomara find prejudice, required to support ineffec- Costello, Deputy Attorneys General; Keith tive assistance of counsel claim, from a H. Borjon, Supervising Deputy Attorney failure to present a mental defense, where General; Lance E. Winters, Senior Assis- the defense that was presented at trial was tant Attorney General; Dane R. Gillette, weak or meritless. U.S. Const. Amend. 6. Chief Assistant Attorney General; Office of the Attorney General, Los Angeles, Cali- 17. Criminal Law O1871 fornia; for Respondent–Appellee. In making the determination whether specified errors resulted in the required Before: HARRY PREGERSON,** prejudice to support ineffective assistance STEPHEN REINHARDT, and of counsel claim, a court should presume JACQUELINE H. NGUYEN, Circuit that the judge or jury acted according to Judges. law. U.S. Const. Amend. 6. Partial Concurrence and Partial Dissent 18. Criminal Law O1883 by Judge Nguyen Court takes into account the possibility of any rebuttal evidence that could have OPINION been admitted when evaluating prejudice REINHARDT, Circuit Judge: on ineffective assistance of counsel claims. U.S. Const. Amend. 6. INTRODUCTION 19. Criminal Law O1922 As in many capital cases, the facts in- In order to determine whether the volved in this case are deeply disturbing failure to offer evidence was prejudicial, as and the crimes brutal. In April 1983, a jury would support ineffective assistance of convicted Francis Hernandez of two counts counsel claim, a judge must determine the of first degree murder, two counts of rape, probable effect of such evidence upon the and two counts of forcible sodomy. After jury, including how he believes the jury finding that each murder occurred during would assess the credibility of the wit- the commission of rape and sodomy—spe- nesses. U.S. Const. Amend. 6. cial circumstances permitting capital punishment—the jury returned a verdict of death. The gruesome nature of the facts Appeal from the United States District makes applying an objectively simple legal Court for the Central District of Califor- standard inherently difficult for any jurist, nia, Ronald S.W. Lew, Senior District for as some astute observer will undoubt-

** Prior to his death, Judge Pregerson fully par- in this opinion after deliberations were com- ticipated in this case and formally concurred plete.

App. C - 31 846 878 FEDERAL REPORTER, 3d SERIES edly note someday, ‘‘bad facts make bad provide a defense to first degree murder, law.’’ at least one juror would have had reason- The ultimate question in this case is able doubt as to whether Hernandez could whether there is a reasonable probabili- have formed the requisite mental state for 2 ty—that is, even less than a fifty-fifty that offense. Put differently, our confi- chance—that at least one juror would have dence in the outcome of Hernandez’s trial declined to convict Hernandez of first de- is undermined: we believe it likely that at gree murder if his counsel had presented a least one juror would have concluded that diminished capacity defense based on men- Hernandez suffered from the mental im- tal impairment. Counsel failed to present pairment required for a successful defense 3 this defense because he was ignorant of of diminished mental capacity. the law. As a result of his incompetence, the jury did not hear that Hernandez had BACKGROUND suffered from a variety of mental impair- I. Factual Background ments since childhood which stemmed A. Francis Hernandez from a genetic inheritance that all but guaranteed that he would suffer severe Francis Hernandez was born to a four- mental illness, coupled with numerous in teen-year-old mother with a history of utero traumas, physical and sexual abuse mental illness who abused drugs and was at the hands of a psychotic adoptive moth- herself physically abused throughout her er, and head injuries from nearly a dozen pregnancy. He inherited an ‘‘extremely motorcycle accidents. Most important, the strong predisposition’’ to ‘‘severe mental jury was not told that such evidence, if illness’’ with ‘‘psychiatric illness of psy- believed, provided a legal defense to first chotic proportions’’ going back three gen- degree murder. With respect to sentencing, erations, including both his biological par- the district court concluded that had the ents. These illnesses include schizophrenia, jury heard similar evidence during the bipolar disorder, seizure disorder, and de- penalty phase, there was a reasonable pression, in addition to an ‘‘extraordinary probability that at least one juror would degree of chemical dependency.’’ have voted against the death penalty, and Hernandez was adopted as a baby by as a result it vacated Hernandez’s death Frank and Naomi Hernandez, who were sentence. Hernandez v. Martel, 824 no better situated to care for a child with F.Supp.2d 1025, 1120 (C.D. Cal. 2011).1 A special needs than were his biological par- similar analysis leads us to conclude that ents. Naomi, diagnosed with schizophrenia, had the jury been told of the evidence of was episodically psychotic throughout Her- Hernandez’s mental impairments and that nandez’s childhood and was hospitalized at such evidence could as a matter of law least ten times. After each hospitalization,

1. The state has not appealed the district thus are not subject to a diminished capacity court’s decision to set aside the death penalty. defense.

2. The rape and sodomy convictions for which 3. Because Hernandez filed his federal habeas Hernandez has been sentenced to eight years petition before the enactment of the Antiter- to be served consecutively for a total of thirty- rorism and Effective Death Penalty Act of two years were affirmed by the state courts 1996 (‘‘AEDPA’’), pre-AEDPA standards of re- and are not challenged in the present habeas view apply. Carrera v. Ayers, 699 F.3d 1104, proceedings. Unlike first degree murder, the 1106 (9th Cir. 2012) cert. denied, 569 U.S. two felonies do not require specific intent and 965, 133 S.Ct. 2039, 185 L.Ed.2d 899 (2013).

App. C - 32 HERNANDEZ v. CHAPPELL 847 Cite as 878 F.3d 843 (9th Cir. 2017) she was too heavily medicated to care for serted. They both had bite marks on their her adopted son. She left the family when breasts, and their pubic hair was singed. Hernandez was in middle school. Ryan’s abdomen had been cut in a tic-tac- The experts who testified at his habeas toe pattern post-mortem. hearing described Hernandez’s childhood Hernandez was arrested on February 4, as ‘‘a daily hell,’’ and rightly so. For disci- 1981. After five hours and seventeen min- pline, Naomi would sit on Hernandez until utes of unrecorded interviews, he confess- he stopped struggling, slap him, tie him to ed to the crimes in a taped statement. chairs, chase him around the house with a Hernandez later claimed that he was will- baseball bat, and forcibly administer ene- ing to tell the police anything during the mas to Hernandez twice a week. Frank interview because they promised him psy- suspected that Naomi sexually abused chiatric help. Hernandez. Frank also abused his adopted In the taped confession, Hernandez said son, beating him with belts and leaving that on the night of Bristol’s murder, he scars on his buttocks consistent with ciga- was drunk and ‘‘didn’t have any control of rette burns. Naomi was not spared from myself. TTT I was in a crazy mood.’’ He Frank’s violence. picked up Bristol hitchhiking but when he After Naomi left, Frank was largely ab- got lost, he got mad and stopped the van. sent. Drug dealers set up shop in the When Bristol would not leave, he hit her home, terrorizing Hernandez and supply- and dragged her out of the vehicle. Ac- ing him with drugs and alcohol, which he cording to Hernandez, Bristol said ‘‘she’d began using in sixth grade. By fourteen or do anything’’ so the two had consensual fifteen, he was declared a ward of the sex in the back of the van. He explained, ‘‘I state. He was sentenced to the California didn’t really have her—you know—forci- Youth Authority in 1979, and upon his bly. I guess maybe she thought I did, but I release, he discovered that Frank had sold don’t know.’’ At some point, Bristol began the family home and left his adopted son kicking and screaming. In response, Her- an old van in which to live. One of those nandez ‘‘went bezerk [sic].’’ He taped her experts who testified at the evidentiary wrists, legs, and mouth, and ‘‘proceeded to hearing reported that in the months lead- fuck her in the ass.’’ While doing so, he ing up to the crimes Hernandez ‘‘was an pushed Bristol against the hot engine cowl- eighteen-year-old, unemployed parolee ing to burn her chest. Hernandez put his who was homeless, isolated from his fami- hand over her face to quiet her and ‘‘just ly, drug addicted, and living in a van.’’ might have left it there too long’’ until she stopped moving. He thought Bristol was B. The Crimes still alive when he left her at the school, The nude bodies of Edna Bristol and which he chose ‘‘so someone hopefully Kathy Ryan were found five days apart [would] find her.’’ Before he left, he lit a near schools in Long Beach, California in cigarette and flicked matches onto Bris- the winter of 1981. Their injuries and tol’s pubic hairs to hurt her for kicking causes of death were similar: both died of him and damaging his van. asphyxiation due to strangulation or suffo- On the night of Ryan’s murder, a group cation and suffered unusual pre-mortem of young people, including Ryan and Her- bruising and tearing in the anal and vagi- nandez, met in a local park before going to nal areas, suggesting a large object—con- a pizza parlor to play pool. Four witnesses sistent with a baseball bat—had been in- testified that Hernandez was drinking but

App. C - 33 848 878 FEDERAL REPORTER, 3d SERIES did not appear very drunk. Hernandez told In addition to the taped confession, a one of the witnesses that he wanted to variety of physical evidence linked Her- make a ‘‘sandwich’’ out of Ryan and ‘‘fuck nandez to the crimes. her in the butt until she screams.’’ He told the witness, ‘‘You watch. I’ll get some to- II. Trial and Subsequent History night or tomorrow night.’’ Hernandez’s trial counsel tried to estab- In his taped confession, Hernandez not lish that Hernandez lacked the specific only talked about Bristol’s death but about intent necessary for a conviction of first Ryan’s. He said that after the group gath- degree murder. He based a diminished ering in the park and at the pizza parlor, capacity defense solely on voluntary intoxi- Ryan told him to stop by her house to ‘‘go cation. Counsel presented some evidence kick back for a little while’’ after the group that Hernandez had been drinking on the disbanded. When he arrived at her house, nights of both murders as well as expert Ryan came outside and got in the van. testimony that an alcoholic would not be Hernandez suggested they make out, but able to form the specific intent to rape or Ryan was hesitant because Hernandez had kill. Counsel also argued that in his intoxi- a girlfriend. Eventually, the two started cated state, Hernandez had believed the kissing. Hernandez thought the encounter encounters were consensual and had in- was consensual: although ‘‘she was sort of hesitant at first,’’ ‘‘she said oh, okay, cuz I tended only to quiet the victims. pushed her arms back’’ and then ‘‘she took The jury found Hernandez guilty on two off her clothes.’’ The two had sex, but counts of first degree murder, two counts stopped when Ryan was ‘‘starting to bleed of rape, and two counts of forcible sodomy. or starting her period or something.’’ People v. Hernandez, 47 Cal. 3d 315, 351, When Ryan turned over, Hernandez 253 Cal.Rptr. 199, 763 P.2d 1289 (1988). It thought she wanted to have anal sex, found true six special circumstances. The which they did until Hernandez stopped jury then imposed a sentence of death as because Ryan said it hurt. Like Bristol, to each murder. For the rape and sodomy Ryan started screaming and kicking, and convictions, Hernandez received sentences Hernandez put a hand over her mouth to of eight years to be served consecutively ‘‘keep her quiet.’’ He thought he ‘‘must for a total of thirty-two years. On direct have used too much pressure’’ because she appeal, the California Supreme Court in a ‘‘stopped struggling,’’ but he did not real- reasoned opinion vacated one multiple- ize she was dead until he took her body murder special circumstance charge but out of the van. He then singed Ryan’s otherwise affirmed. In the direct appeal, pubic hair and cut her stomach with glass. appellate counsel raised some arguments At the interviewer’s prompting, Hernandez regarding trial counsel’s ineffective assis- acknowledged that he ‘‘might’’ have bitten tance, but failed to raise a claim that coun- Ryan’s nipple. He added that, when he left sel did not investigate or present a dimin- Ryan’s body, ‘‘it started dawning on [him] ished capacity defense based on mental what had happened before with the other impairment. Id. at 369, 253 Cal.Rptr. 199, girl.’’ He said, ‘‘there was thoughts going 763 P.2d 1289. through my head like, how the hell can I do these things, and—you know—I was III. Habeas Proceedings thinking maybe I was doing it on purpose, I didn’t know, you know, cause I hadn’t In 1989, Hernandez filed a state habeas been planning anything.’’ petition in the California Supreme Court,

App. C - 34 HERNANDEZ v. CHAPPELL 849 Cite as 878 F.3d 843 (9th Cir. 2017) in which he raised the ineffective assis- by grant the application pursuant to 28 tance of counsel claims at issue here. The U.S.C. § 2253(c)(2). California Supreme Court summarily denied that petition. Hernandez filed a timely STANDARD OF REVIEW federal habeas petition, and then returned [1, 2] Hernandez filed his federal habe- to state court to exhaust his claims. The as petition before the enactment of the California Supreme Court summarily de- Antiterrorism and Effective Death Penalty nied the second state habeas petition as Act of 1996 (‘‘AEDPA’’). Accordingly, pre- untimely and on the merits, and Hernan- AEDPA standards of review apply. Carr- dez filed a timely amended federal peti- era v. Ayers, 699 F.3d 1104, 1106 (9th Cir. tion. After granting in part the state’s 2012) cert. denied, 569 U.S. 965, 133 S.Ct. motion for summary judgment, the district 2039, 185 L.Ed.2d 899 (2013). ‘‘Ineffective court ordered a bifurcated evidentiary assistance of counsel claims present mixed hearing on three juror misconduct claims questions of law and fact.’’ Id. We review and two ineffective assistance of counsel the district court’s partial denial of Her- claims. This evidentiary hearing, all on nandez’s habeas petition, and its resolution written materials, lasted six years. of mixed questions of law and fact de novo; In 2011, the district court granted in we review its findings of fact for clear part Hernandez’s petition for writ of habe- error. Id. as corpus. It vacated the death penalty for several reasons, including counsel’s failure DISCUSSION to present mitigating mental health and social history evidence at the penalty Hernandez contends that his counsel phase. It denied, however, guilt phase re- provided constitutionally ineffective assis- lief. On appeal, the state has not chal- tance of counsel during the guilt phase of lenged the grant of penalty phase relief. his trial by failing to investigate and pres- Hernandez, however, appeals his convic- ent evidence in support of a diminished tions on the first degree murder counts. capacity defense based on mental impairment.4 His petition specified counsel’s errors in great detail. The district court JURISDICTION concluded that Hernandez’s counsel’s per- The district court granted a certificate formance was ineffective because he failed of appealability (‘‘COA’’) on Hernandez’s to know or to find out that a diminished claim that his counsel was ineffective at capacity defense based on mental impair- the guilt phase for failing to call a key ment was available under California law. witness. It did not certify Hernandez’s re- As a result, he failed to develop ‘‘various maining ineffective assistance claims, in- materials gathered since trial but that cluding his claim that counsel was ineffec- were reasonably available to counsel be- tive for failing to investigate or present a fore trial,’’ including ‘‘records and back- defense of diminished capacity based on ground information regarding petitioner’s mental impairment. We treat Hernandez’s birth family as well as social history infor- appeal from the district court’s ruling on mation from petitioner’s adopted family, the uncertified issues as an application for preschool teacher and others.’’ The dis- a COA, Fed. R. App. P. 22(b)(2), and here- trict court concluded, however, that de-

4. We review only this claim because in light We strongly doubt, however, that any other of its disposition, we need review no other. claim properly before us is meritorious.

App. C - 35 850 878 FEDERAL REPORTER, 3d SERIES spite counsel’s ineffective performance, called to testify before a habeas court, Hernandez failed to show prejudice. Hernandez’s counsel did not attempt to On this appeal, Hernandez must show justify his failure to perform effectively by both that his counsel was ineffective and invoking a strategic decision on his part; that the district court erred in finding that rather, he admitted that he would have counsel’s ineffective performance was not investigated and advanced the diminished prejudicial. Strickland v. Washington, 466 capacity defense based on mental impair- U.S. 668, 687–88, 104 S.Ct. 2052, 80 ment had he realized that he could have L.Ed.2d 674 (1984). done so. Citing Harrington v. Richter, 562 U.S. 86, 109, 131 S.Ct. 770, 178 L.Ed.2d I. Deficient Performance 624 (2011), the state counters that coun- [3] We agree with the district court sel’s ‘‘subjective state of mind is irrele- that counsel was ineffective in not knowing vant’’ to our analysis, and asserts that ‘‘a or finding out that a diminished capacity reasonable defense attorney could have defense based on mental impairment was decided to present a guilt-phase defense available to Hernandez under California based on intoxication alone’’ because the law and, based on that lack of knowledge, experts who examined Hernandez before in failing to investigate and present such a trial were either inconclusive or found that defense.5 Hernandez could have formed the requisite intent, and there was ‘‘potentially [4–6] Deficient performance requires a damaging psychiatric evidence that Her- showing that counsel’s guilt phase per- nandez was a sociopath.’’ Hernandez ar- formance ‘‘fell below an objective standard gues in response that the state’s proffered of reasonableness’’ at the time of the trial. explanations for counsel’s conduct are Strickland, 466 U.S. at 688, 104 S.Ct. 2052. ‘‘mere post-hoc rationalization with no Defense counsel is ‘‘strongly presumed to place in the analysis.’’ have rendered adequate assistance and made all significant decisions in the exer- [7–9] Hernandez is correct. Where cise of professional judgment.’’ Id. at 690, counsel has provided the reason for his 104 S.Ct. 2052. However, deference to conduct, and we have no reason to doubt counsel is owed only to strategic decisions the validity of that explanation, the rele- made after ‘‘thorough investigation of law vant inquiry is whether the stated reason and facts relevant to plausible options.’’ Id. was objectively unreasonable. The Su- preme Court has repeatedly declared that A. We Consider Only Counsel’s Stated courts are not to ‘‘indulge ‘post hoc ration- Reason for His Challenged Conduct alization’ for counsel’s decisionmaking that As an initial matter, the parties dispute contradicts the available evidence of coun- whether we consider counsel’s stated rea- sel’s actions.’’ Richter, 562 U.S. at 109, 131 sons for the challenged course of conduct S.Ct. 770 (quoting Wiggins v. Smith, 539 or any hypothetical strategic reasons that U.S. 510, 526–27, 123 S.Ct. 2527, 156 could have supported the challenged L.Ed.2d 471 (2003)). As a result, ‘‘we credit course of conduct. Unlike many lawyers the statements of defense counsel as to

5. Hernandez contends that the district court’s fied issues, the district court’s conclusion re- conclusion finding deficient performance ‘‘is garding deficient performance. Accordingly, not in dispute’’ because the government did we consider whether counsel performed rea- not file a cross-appeal. However, the govern- sonably at the guilt phase—and agree with the ment did dispute, in its brief on the uncerti- district court that he did not.

App. C - 36 HERNANDEZ v. CHAPPELL 851 Cite as 878 F.3d 843 (9th Cir. 2017) whether their decisions at trial were—or Were the record ambiguous or silent as were not—based on strategic judgments.’’ to why Hernandez’s counsel did not pres- Doe v. Ayers, 782 F.3d 425, 445 (9th Cir. ent the diminished capacity defense, we 2015). In Doe, trial counsel ‘‘unequivocally might consider the state’s hypothetical said’’ that he did not have a strategy in strategic reasons. But it is not, and we failing to investigate extensive mitigating don’t. In the habeas proceedings before evidence. Id. at 444. We concluded that to the district court, counsel said exactly why apply the presumption that counsel acted he failed to pursue the defense: he did not reasonably in such a case would ‘‘contra- know that he could and did no research to dict [trial counsel’s] testimony rather than uncover his mistake of law. The state, fill[ ] a gap in memory, contravening the moreover, suggested no credible basis for Supreme Court’s admonition’’ against post doubting the truth of Hernandez’s coun- hoc rationalizations in Harrington and sel’s statements. Finally, the district judge Wiggins. Id. at 445 (quoting Heishman v. found the statements credible and that Ayers, 621 F.3d 1030, 1040 (9th Cir. 2010)) finding was not clear error. (alterations in original); see also Duncan v. Ornoski, 528 F.3d 1222, 1237 n.7 (9th Cir. B. Mistakes of Law Constitute Defi- 2008) (explaining that ‘‘[i]n light of the cient Performance Supreme Court’s admonitions that review- [11] ‘‘An attorney’s ignorance of a ing courts may not substitute their own point of law that is fundamental to his case strategic reasoning for that of trial counsel combined with his failure to perform basic in order to find that counsel’s performance research on that point is a quintessential was justified, we [would] not consider [the example of unreasonable performance un- district court and state’s] additional specu- der Strickland.’’ Hinton v. Alabama, ––– lative justifications to be [counsel’s] actual U.S. ––––, 134 S.Ct. 1081, 1089, 188 reasons for declining to test [petitioner’s] L.Ed.2d 1 (2014); see also Morris v. Cali- blood’’ (citing Wiggins, 539 U.S. at 526–27, fornia, 966 F.2d 448, 454–55 (9th Cir. 1992) 123 S.Ct. 2527)). (finding that counsel provided ‘‘clearly de- [10] Only where counsel’s conduct is ficient performance’’ because he was not not explained in the record, or the explana- ‘‘familiar with the law’’ and had not ‘‘done tion contradicts the record, do we ‘‘enter- his homework’’ to become familiar with the tain the range of possible reasons [ ] coun- relevant law). In United States v. Span, 75 sel may have had for proceeding as he F.3d 1383 (9th Cir. 1996), we held that a did.’’ Leavitt v. Arave, 646 F.3d 605, 609 mistake about the availability of a defense (9th Cir. 2011); Richter, 562 U.S. at 109, constitutes a mistake of law that gives rise 131 S.Ct. 770 (finding, under AEDPA, that to deficient performance. In that case, trial court of appeals erred in dismissing range counsel failed to request a jury instruction of strategic considerations where counsel that would cover an excessive force de- provided no reason for course of conduct); fense because he mistakenly believed the Cullen v. Pinholster, 563 U.S. 170, 196, 131 unlawful arrest jury instruction would in- S.Ct. 1388, 179 L.Ed.2d 557 (2011) (direct- clude excessive force. Id. at 1390. This was ing court of appeals ‘‘to affirmatively en- deficient performance because his ‘‘errors tertain the range of possible ‘reasons’ ’’ with the jury instructions were not a stra- where counsel could not recall and the tegic decision to forego one defense in record was ambiguous as to the extent of favor of another,’’ but rather ‘‘the result of penalty-phase investigation). a misunderstanding of the law.’’ Id. No

App. C - 37 852 878 FEDERAL REPORTER, 3d SERIES

‘‘strategy, save an ineffective one, would competently, it concluded that his deficient lead a lawyer to deliberately omit’’ his performance did not prejudice Hernandez. client’s best defense. Id. That conclusion is in error. So, too, here. Hernandez’s counsel’s failure to investigate and present a dimin- [13] To establish prejudice, Hernandez ished capacity defense based on mental must show a ‘‘reasonable probability that, impairment—what the district court rec- but for counsel’s unprofessional errors, the ognized as Hernandez’s ‘‘best possible de- result of the proceeding would have been fense’’—was ‘‘quintessential’’ deficient per- different.’’ Strickland, 466 U.S. at 694, 104 formance. His counsel was simply wrong S.Ct. 2052. The Strickland Court specifi- that evidence of mental impairment would cally rejected a preponderance of the evi- not support a diminished capacity defense. dence standard. Id. at 693, 104 S.Ct. 2052. Doing even minimal homework, he would Instead, a reasonable probability is ‘‘a have learned that at the time of the crimes, California recognized a diminished probability sufficient to undermine confi- capacity defense where ‘‘someone [ ] is un- dence in the outcome.’’ Strickland, 466 able, because of intoxication or mental ill- U.S. at 694, 104 S.Ct. 2052. ness, to comprehend his duty to govern his actions in accord with the duty im- [14, 15] ‘‘When a defendant challenges posed by law.’’ People v. Saille, 54 Cal. 3d a conviction, the question is whether there 1103, 1110–11, 2 Cal.Rptr.2d 364, 820 P.2d is a reasonable probability that, absent the 588 (1991) (emphasis added) (citing People errors, the factfinder would have had a v. Conley, 64 Cal. 2d 310, 322, 49 Cal. reasonable doubt respecting guilt.’’ Id. at Rptr. 815, 411 P.2d 911 (1966)); see also 694–95, 104 S.Ct. 2052. ‘‘[B]ecause the jury People v. McDowell, 69 Cal. 2d 737, 746– was required to reach a unanimous verdict 47, 73 Cal.Rptr. 1, 447 P.2d 97 (1968) on each count, the outcome could have (describing the diminished capacity de- differed if even ‘one juror would have fense based on ‘‘mental abnormality’’ as struck a different balance.’ ’’ Weeden v. ‘‘settled’’ and ‘‘commonplace’’). In McDo- Johnson, 854 F.3d 1063, 1071 (9th Cir. well, for instance, the California Supreme 2017) (quoting Wiggins, 539 U.S. at 537, Court held that trial counsel was constitutionally deficient for failing to present a 123 S.Ct. 2527). For guilt-phase claims, we diminished capacity defense based on contrast ‘‘the evidence that actually was ‘‘mental abnormality’’ because he errone- presented to the jury with that which ously believed the defense was limited to could have been presented had counsel a defendant’s ‘‘sexual propensities.’’ 69 acted appropriately.’’ Daniels v. Woodford, Cal. 2d at 747, 73 Cal.Rptr. 1, 447 P.2d 428 F.3d 1181, 1201 (9th Cir. 2005) (citing 97. Because of Hernandez’s counsel’s fail- Bonin v. Calderon, 59 F.3d 815, 834 (9th ure to determine the applicable law, coun- Cir. 1995)). We then ask whether that sel did not present the ‘‘substantial credi- omitted evidence might have created rea- ble evidence’’ of the defendant’s mental sonable doubt in the mind of at least one health that could have negated his intent reasonable juror. Rios v. Rocha, 299 F.3d at the time of the crimes. Id. at 749, 73 796, 813 (9th Cir. 2002). Cal.Rptr. 1, 447 P.2d 97. Hernandez’s jury was presented with II. Prejudice two paths to first degree murder: willful, [12] Although the district court found deliberate, and premeditated murder, or that Hernandez’s counsel performed in- felony murder with rape as the predicate

App. C - 38 HERNANDEZ v. CHAPPELL 853 Cite as 878 F.3d 843 (9th Cir. 2017) felony.6 Under the first theory, the jury state and, as a result, declined to vote to was required to find that the killing was convict Hernandez of first degree murder. intentional, willful, deliberate, and premeditated with malice aforethought. Conley, 64 A. The Evidence Presented at Trial Cal. 2d at 318–19, 49 Cal.Rptr. 815, 411 Counsel presented three reasons why P.2d 911. Under the second, the jury was Hernandez lacked the requisite mental required to find that Hernandez had the state necessary for first degree murder: specific intent to commit the predicate fel- (1) he had intended to quiet, not kill the ony of rape. Hernandez, 47 Cal. 3d at 346, victims; (2) he believed in his intoxicated 253 Cal.Rptr. 199, 763 P.2d 1289. At the state that the sex was consensual; and (3) time of Hernandez’s trial, evidence of di- he was unable to form specific intent based minished capacity could negate the exis- on a diminished capacity defense due to tence of a specific mental state essential to intoxication. These were undeniably all an offense, including malice aforethought weak defenses. There was little evidence to and specific intent. People v. Poddar, 10 support Hernandez’s claim that he at- Cal. 3d 750, 757, 111 Cal.Rptr. 910, 518 tempted to quiet the victims beyond his P.2d 342 (1974), superseded by statute; see own confession, and the physical evidence also Saille, 54 Cal. 3d at 1110, 2 Cal. of forcible rape and sodomy was compel- Rptr.2d 364, 820 P.2d 588. A successful ling. diminished capacity defense would therefore have reduced the first degree murder The California Supreme Court empha- convictions to a lesser offense under either sized that the diminished capacity defense theory by establishing that Hernandez based on intoxication was equally weak. lacked the capacity to form the requisite Hernandez, 47 Cal. 3d at 350–51, 253 Cal. mental state of either malice aforethought Rptr. 199, 763 P.2d 1289. Hernandez’s or specific intent to rape.7 Poddar, 10 Cal. counsel presented only uncorroborated tes- 3d at 758 n.11, 111 Cal.Rptr. 910, 518 P.2d timony that Hernandez was intoxicated the 342.8 night of Bristol’s killing, and four witnesses testified that he did not appear Accordingly, we must determine wheth- very drunk on the night of Ryan’s killing. er there is a reasonable probability that at After testifying that Hernandez was an least one juror, upon hearing the evidence alcoholic who would not be capable of of diminished capacity based on mental forming the requisite intent for first de- impairment, would have concluded that the gree murder, Hernandez’s expert, Dr. prosecution had failed to carry its burden Amer Rayyes, conceded on cross-examina- of proof regarding Hernandez’s mental tion that it would be possible for an alco-

6. At the time, sodomy constituted a predicate cific intent. People v. Wetmore, 22 Cal.3d 318, offense for second degree, rather than first 149 Cal.Rptr. 265, 583 P.2d 1308, 1314 n.9 degree, murder. (1978), superseded by statute. Therefore, a successful diminished capacity defense would not 7. We refer hereafter, for convenience, to both undo the convictions for rape or sodomy be- malice aforethought and specific intent by the cause the offenses themselves are general, not term ‘‘specific intent.’’ For purposes of this specific, intent crimes. The defense could, opinion, both have the identical legal effect and consequence. however, if successful, preclude the two felonies from serving as a predicate to a felony 8. At the time of Hernandez’s trial, diminished murder charge. capacity was a defense only to crimes of spe-

App. C - 39 854 878 FEDERAL REPORTER, 3d SERIES holic to form the specific intent to kill, as well as on various records including rape, or sodomize while drinking. adoption and medical records, and psycho- [16] We have emphasized that we are logical assessments from 1967, 1979, and particularly likely to find prejudice from a 1982. Neuropsychologist Dr. Gur, who re- failure to present a mental defense ‘‘where viewed similar materials and administered the defense that was presented at trial was a series of neurological tests, also testified weak or meritless.’’ Daniels, 428 F.3d at on behalf of Hernandez. The state present- 1207; see also Jennings, 290 F.3d at 1019 ed only the testimony of clinical psycholo- (same). Here, it unquestionably was both. gist Dr. Martell, who also interviewed Hernandez. B. The Evidence that Could Have Been Dr. Lewis explained, ‘‘[i]t is impossible Presented at Trial to understand Francis Hernandez’s psychi- The picture the jury received of Hernan- atric condition TTT without a clear under- dez was of a man who, as the prosecution standing among his genetic vulnerabilities said in closing, ‘‘is out to hurt people,’’ and to severe mental illness which he inherited who was maybe a little drunk the night of from his biological mother and father, the the crimes. That picture was woefully in- effects of in utero exposure to alcohol and complete. Counsel failed to pursue and drugs, repeated head injuries beginning in present what the district court recognized early childhood, and an upbringing in a as ‘‘the best possible defense at guilt: that psychotic, physically and sexually abusive, due to mental deficiency, neurological defi- and severely neglectful adoptive family.’’ cits and inadequate parenting, petitioner Hernandez’s social history reveals a bio- lacked the capacity to form the specific logical ‘‘prescription for disaster.’’ The in intent to rape and kill his victims.’’ utero injuries—stemming from his moth- At the time of Hernandez’s trial, a di- er’s drinking and abuse throughout the minished capacity defense based on mental pregnancy—combined with the use of for- health included, among other factors, con- ceps during Hernandez’s delivery contrib- sideration of a defendant’s biological back- uted to his ‘‘neurological and psychological ground, familial history of mental illness, vulnerabilities.’’ social history, living situation prior to the crime, and potential neurological impair- The experts identified significant paral- ments. See McDowell, 69 Cal. 2d at 741–43, lels between the crimes and the extreme 73 Cal.Rptr. 1, 447 P.2d 97. Evidence sup- abuse Hernandez suffered. In addition to porting all of these considerations was suspected sexual abuse, his adoptive moth- readily available to Hernandez’s counsel er would sit on Hernandez, tie him to had he only looked. chairs, chase him around the house with a During the district court’s evidentiary baseball bat, and forcibly administer ene- hearing, several witnesses testified to what mas to Hernandez twice a week—a prac- counsel could have found and presented tice Dr. Lewis described as ‘‘a form of had he understood that a mental defense sodomy.’’ Dr. Lewis explained, ‘‘Children based on diminished capacity was avail- who have had objects shoved into their able. Psychologist Dr. Clausen, psychia- rectums repeatedly against their will are trist Dr. Lewis, and criminologist Sheila at high risk of perpetrating similar acts on Balkan provided detailed social histories of others.’’ In addition, it is significant with Hernandez, relying on interviews with respect to the victims’ pubic hair that Her- Hernandez, family, friends, and teachers nandez burned that he himself has scars

App. C - 40 HERNANDEZ v. CHAPPELL 855 Cite as 878 F.3d 843 (9th Cir. 2017) on his buttocks consistent with cigarette sent him to the hospital, including one at burns. age 17 in which he lost consciousness and Experts Clausen, Lewis, Balkan, and went into convulsions. After administering Gur diagnosed Hernandez with dissociative psychological tests, Dr. Gur testified that disorder, bipolar disorder, organic brain Hernandez’s results were ‘‘highly abnor- damage, and impaired reality testing. mal’’ and that he hadn’t ‘‘seen profiles like that in a long time.’’ When he had, ‘‘they’ve The experts concluded that Hernandez always been associated with severe brain had begun dissociating in childhood to cope damage.’’ with trauma. Dr. Gur explained that dissociation can lead to ‘‘a state in which a Drs. Clausen, Lewis, and Gur all empha- person can engage in a complex set of sized that from an early age, Hernandez exhibited impaired reality testing, or diffi- behaviors without intent or premedita- culty interpreting and responding to oth- tion.’’ Evidence of Hernandez’s dissociation ers’ emotions. His preschool teacher noted include his inability to remember traumat- that Hernandez was incapable of interpret- ic ‘‘watershed events’’ from childhood, and ing social cues and that he misinterpreted friends’ descriptions of ‘‘spells’’ in which any action as a threat. The psychologist Hernandez would become ‘‘non-respon- who evaluated Hernandez in relation to his sive’’ and unaware of his surroundings. adoptive family’s unsuccessful attempt to Hernandez himself described elementary adopt a second child in 1967 found that school fights in which he ‘‘would find him- Hernandez ‘‘phantasized [sic] so profusely self thirty feet from where he last remem- that he is unable to readily accept reality.’’ bered being.’’ The experts concluded that Dr. Clausen found the origins of Hernan- dissociation accounted for why Hernandez dez’s misperception of emotion in his ge- appeared to know what happened during netic predispositions as well as his expo- the crimes, but did not remember portions sure to his adoptive parents’ psychological of his actions. problems. Dr. Gur concluded that Hernan- Dr. Lewis also diagnosed Hernandez dez’s brain damage most likely caused with bipolar disorder. She believed that at Hernandez to misperceive the victims as the time of the crimes, Hernandez was in a consenting to sex. ‘‘manic or hypomanic state’’ while simulta- All experts but Dr. Martell, whom the neously experiencing dissociative symp- district judge thought not credible, con- toms. cluded that due to these mental impair- In addition, Dr. Gur concluded that Her- ments, Hernandez lacked the capacity to nandez had organic brain damage, proba- form the specific intent necessary to sup- bly reflecting a neurodevelopment disorder port a first degree murder conviction. Fur- exacerbated by Hernandez’s perinatal ther, Dr. Gur testified that a comprehen- stressors as well as postnatal head inju- sive neuropsychological evaluation at the ries. In addition to the in utero abuse and time of the trial would have disclosed the use of forceps during his birth, Hernandez mental impairments identified by himself suffered ‘‘sequential head injuries’’ that and the others. ‘‘exacerbate existing psychiatric illness’’ and make one ‘‘especially susceptible to C. Ninth Circuit Precedent Demon- the effects of alcohol.’’ His adoptive father strates that the Ineffective Perform- purchased Hernandez an adult motorbike ance in this Case Was Prejudicial when he was five and Hernandez was in- We have repeatedly held that defense volved in a dozen motorcycle accidents that counsel in a first-degree murder trial was

App. C - 41 856 878 FEDERAL REPORTER, 3d SERIES prejudicially ineffective where there was based on weak or uncorroborated evi- some evidence of the defendant’s mental dence, that because Hernandez might have impairments in the record, but counsel been intoxicated, he could not form the failed to investigate and present a mental specific intent to rape or kill the two vic- impairment defense to the charge. See, tims. It is ‘‘especially egregious’’ to forgo e.g., Daniels, 428 F.3d at 1208 (holding investigation when ‘‘the entire defense that counsel’s failure to investigate and strategy rest[s] on contesting the intent present evidence of petitioner’s ‘‘severe element of the crime, a defense which mental illness and possible brain damage’’ could have benefited enormously from at the guilt phase was prejudicial because readily available psychiatric evidence.’’ ‘‘[u]nder the diminished capacity standard, Turner v. Duncan, 158 F.3d 449, 456–57 a jury could well have found that he did (9th Cir. 1998). not have the capacity to truly premeditate and understand the gravity’’ of the of- We conclude that there is a reasonable fense); Jennings, 290 F.3d at 1010, 1014– probability that, upon hearing Hernandez’s 16 (holding that where ‘‘trial counsel failed ‘‘best defense’’ of mental impairment, at adequately to investigate and present con- least one juror, and probably more, would siderable evidence regarding petitioner’s have harbored substantial doubt about psychological and family history that Hernandez’s capacity to form the specific might have TTT defeated the jury’s finding intent to rape or kill. Thus, our confidence of the requisite intent for first degree mur- in the verdict is, without question, under- der in the guilt phase,’’ defendant was mined. denied effective assistance of counsel); Sei- del v. Merkle, 146 F.3d 750, 755–56 (9th D. The Arguments to the Contrary Do Cir. 1998) (holding that petitioner was Not Change Our Conclusion that prejudiced where ‘‘trial counsel failed to Hernandez Was Prejudiced conduct any investigation at all into his None of the arguments that the district client’s psychiatric history and therefore court or the state offer to the contrary neglected to pursue a potentially success- causes us to alter our conclusion. ful defense’’ at the guilt phase). None of the evidence described in sec- [17] The district court provided three tion II(B), supra, was put before the jury primary reasons for its conclusion that and considered during its deliberations. Hernandez was not prejudiced: (1) the lev- The testimony from these qualified experts el of detail in Hernandez’s confession could would have added an entirely new dimen- have caused the jury to reasonably reject a sion to the jury’s assessment of the critical defense that he lacked the capacity to form issue of Hernandez’s mental state. The the requisite intent due to mental defect; jury did not have the benefit of testimony (2) the victims suffered very similar inju- regarding Hernandez’s numerous head in- ries just days apart, suggesting some juries or his genetic predisposition to men- amount of premeditation or deliberation; tal illness, his traumatic childhood raised and (3) the fact that California voters in a violent and psychotic adoptive family, elected to abolish the diminished capacity his organic brain damage, and his history defense eighteen months before Hernan- of dissociation and impaired reality testing. dez’s trial could make a jury less likely to Instead, the jury was simply asked to find, accept the defense.9

9. The district court’s third reason was entirely inappropriate: in assessing prejudice, the

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Without a doubt, Hernandez’s taped bizarreness of the nearly identical crimes confession is detailed and disturbing. How- just days apart would have supported, ever, the experts at the habeas hearing rather than undermined, a diminished ca- agreed that Hernandez’s ‘‘ostensible recol- pacity defense based on mental impair- lection of details on the tape’’ does not rule ment. So, too, would the seemingly irra- out a diminished capacity defense. Instead, tional post-mortem injuries to the victims’ as they testified, his taped confession con- bodies. Most important, with Hernandez’s firms their view that Hernandez experi- harrowing childhood placed in context, a enced mental impairments during the juror could have reasonably concluded, like crimes because his statements demon- the experts who testified at the habeas strate ‘‘that his thought processes were hearing, that the nearly identical injuries psychotic during the crimes.’’ At one point, of both victims reflected not premedita- Hernandez explained, ‘‘it was some way I tion, but rather Hernandez’s own, similar wasn’t even feeling that I did it,’’ which history of abuse at the hands of his adop- suggested that he did not understand what tive parents, from the forcible sodomy to he was doing or thinking during the the genital burns, such that the similarity crimes. When the police asked what think- of his actions were a product of his abuse ing about these events made Hernandez and mental impairments. feel, he responded, ‘‘I think I need psychiatric help. Definitely. Cause I don’t know This Court has recognized the power of what would make me do this.’’ Within the a diminished capacity defense to overcome greater context of Hernandez’s biological even ‘‘[s]ubstantial evidence supporting a background and horrific upbringing, and finding of premeditation and deliberation.’’ expert testimony pointing out the evidence Daniels, 428 F.3d at 1207–08 (alterations of psychosis buried in the confession, we in original) (quoting People v. Cruz, 26 do not find the district court’s first point Cal.3d 233, 162 Cal.Rptr. 1, 605 P.2d 830, persuasive. 835 (1980)); see also Bloom v. Calderon, Second, the district court pointed to the 132 F.3d 1267, 1269, 1273, 1276 (9th Cir. fact that the victims suffered very similar 1997) (finding prejudice where counsel injuries days apart to suggest that any failed to present evidence of brain damage, diminished capacity defense would have schizotypal personality disorder, and tran- been undermined by this evidence of pre- sient psychotic episodes, notwithstanding meditation and deliberation. Dr. Gur, how- evidence that petitioner planned the mur- ever, explained that mental impairments der of his family in advance). Thus, howev- such as Hernandez’s could cause a person er similar the crimes or detailed the taped to ‘‘engage in a complex set of behaviors statement, there is a reasonable probabili- without intent or premeditation.’’ The re- ty that, hearing all of the expert evidence sult may be ‘‘highly organized if somewhat in support of a diminished mental capacity ritualistic behavior.’’ In effect, the sheer defense, a juror would have harbored rea-

judge should not have considered the aboli- Hernandez’s trial, it was indisputably the law tion of the diminished capacity defense in that the diminished capacity defense was Proposition 8, adopted over one year before available where the crimes predated the ini- the trial. In Strickland, the Court emphasized tiative, as they did in Hernandez’s case. As that ‘‘[i]n making the determination whether such, the political context surrounding the the specified errors resulted in the required diminished capacity defense should have ab- prejudice, a court should presume TTT that solutely no bearing on whether the jury would the judge or jury acted according to law.’’ 466 follow the law or whether Hernandez was U.S. at 695, 104 S.Ct. 2052. At the time of prejudiced.

App. C - 43 858 878 FEDERAL REPORTER, 3d SERIES sonable doubt on the element of specific ment clearly would not have been cumula- intent and, thus, on the counts of first tive of the weak evidence of intoxication degree murder. that Hernandez’s counsel presented. The state offers two additional arguments that also do not affect our conclu- CONCLUSION sion: one, that any psychiatric testimony would have been rebutted by a prosecution The jury in Hernandez’s trial heard the expert such as Dr. Martell and, two, that gruesome facts of the crimes and was any additional evidence of impairment asked to find that Hernandez acted in a would have been cumulative. diminished capacity because of weak evidence that he might have been intoxicated. [18, 19] First, while this Court takes What it did not hear, solely because his into account the possibility of any rebuttal counsel was ignorant of the law, was that evidence that could have been admitted Hernandez had suffered from neurological when evaluating prejudice, Richter, 562 impairments since childhood, dissociating U.S. at 109, 131 S.Ct. 770, the district to cope with the trauma of being raised court found that Dr. Martell—the state’s and abused by a psychotic mother and rebuttal expert—was neither credible nor struggling to comprehend others’ emo- qualified. The state cites Jones v. Ryan, tions; that he suffered persistent and per- 583 F.3d 626 (9th Cir. 2009), vacated on vasive abuse that bore a striking resem- other grounds and remanded, 563 U.S. blance to that which he inflicted upon the 932, 131 S.Ct. 2091, 179 L.Ed.2d 886 victims; that he sustained head injuries (2011), for the proposition that it was ‘‘im- from nearly a dozen motorcycle accidents, proper [for the district court] to weigh the some of which occurred upon a motorcycle testimony of the experts against each oth- given to him when he was five years old; er in order to determine who was the and that he inherited a genetic ‘‘prescrip- most credible.’’ That quotation, however, tion for disaster,’’ all but guaranteeing that is taken out of context and has no rele- he would have some neurological impair- vance here, because Jones reaffirmed the ments as a result of a staggering legacy of well-established principle that in order to determine whether the failure to offer evi- mental illness and addiction in his biologi- dence was prejudicial, the judge must de- cal family. We conclude that had counsel termine the probable effect of such evi- performed effectively and investigated and dence upon the jury, including how he presented a diminished mental capacity believes the jury would assess the credi- defense based on mental impairment, bility of the witnesses. See 583 F.3d at there is a reasonable probability that at 641. That is what the district judge did least one juror would have had a reason- here by finding Dr. Martell not credible able doubt as to whether Hernandez could as part of his prejudice analysis. While we have formed the requisite mental state for do not agree with the district judge’s ulti- first degree murder. mate conclusion regarding prejudice, we We reverse the district court’s denial of do agree that, for the reasons he stated, a a writ of habeas corpus as to Hernandez’s jury probably would have found Dr. Mar- guilt phase claims relating to first degree tell’s testimony unpersuasive. murder, vacate Hernandez’s convictions on Second, contrary to the state’s assertion, those counts, and remand with instructions and for the reasons discussed throughout to grant the petition for a writ of habeas this opinion, the evidence of mental impair- corpus unless the state conducts a new

App. C - 44 HERNANDEZ v. CHAPPELL 859 Cite as 878 F.3d 843 (9th Cir. 2017) trial on those charges within a reasonable dence in the outcome.’’ Strickland v. period of time. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (emphasis add- NGUYEN, Circuit Judge, concurring in ed). To determine if there is a reasonable part and dissenting in part: probability of a different outcome, we com- In January 1981, Francis Hernandez pare ‘‘the evidence that actually was pre- brutally raped, sodomized, strangled to sented to the jury with the evidence that death, and mutilated Edna Bristol, throw- might have been presented had counsel ing her naked body out of his van near a acted differently.’’ Clark v. Arnold, 769 middle school in Long Beach, California. F.3d 711, 728 (9th Cir. 2014) (quoting Five days later, and in a strikingly similar Murtishaw v. Woodford, 255 F.3d 926, 940 manner, Hernandez raped and killed Ka- (9th Cir. 2001)). thy Ryan, throwing her naked body on the While a reasonable probability is ‘‘less lawn of a high school in the same city. than the preponderance more-likely-than- After his arrest, Hernandez gave a com- not standard,’’ Summerlin v. Schriro, 427 prehensive, graphic, and disturbing confes- F.3d 623, 640 (9th Cir. 2005) (en banc) sion, walking the police through the details (citing Strickland, 466 U.S. at 693–94, 104 of his gruesome crimes and, importantly, S.Ct. 2052), ‘‘[i]t is not enough ‘to show his thoughts, anger, and awareness of his that the errors had some conceivable effect actions as he committed them. His admis- on the outcome of the proceeding[,]’ ’’ Har- sions, along with substantial physical evi- rington v. Richter, 562 U.S. 86, 104, 131 dence connecting him to the crimes, amply S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting supported the jury’s guilty verdicts. Strickland, 466 U.S. at 693, 104 S.Ct. Yet despite the strength of the evidence, 2052). Hernandez faces a higher burden of the majority now vacates Hernandez’s first showing prejudice at the guilt phase than degree murder convictions on the ground at his death penalty sentencing, where that Hernandez suffered prejudice due to prejudice has been established without ap- trial counsel’s deficient performance. I peal by the government. See Raley v. Ylst, strongly disagree. Even if the jury had 470 F.3d 792, 802 (9th Cir. 2006) (‘‘The bar considered the omitted evidence of Her- for establishing prejudice is set lower in nandez’s mental condition, there is no rea- death-penalty sentencing cases than in sonable possibility of a different outcome. guilt-phase challenges and noncapital It’s not even a close call. The evidence that cases.’’). Hernandez had specific intent to rape and Hernandez also must show a reasonable kill, either of which could have indepen- probability of a different outcome as to dently supported the verdicts, was so over- both first degree murder theories that whelming that no rational juror would were available to the jury: 1) willful, delib- have believed otherwise. I dissent. erate, and premeditated murder, and 2) felony murder with rape as the predicate I. felony. That is because, as the majority In order to prevail, Hernandez must acknowledges, the jury was presented with show a ‘‘reasonable probability that, but two independent paths to first degree mur- for counsel’s unprofessional errors, the re- der. While the jury was required to find sult of the proceeding would have been that the killing was willful, deliberate, pre- different. A reasonable probability is a meditated and with malice aforethought probability sufficient to undermine confi- under the first theory, it needed only to

App. C - 45 860 878 FEDERAL REPORTER, 3d SERIES find that Hernandez had the specific intent breasts, ‘‘puncture-wound type injuries to to rape under the second theory of felony the nipples,’’ and ‘‘singed or burned pubic murder. See People v. Hernandez, 47 Cal. hair.’’ The injuries ‘‘carried significant sex- 3d 315, 346–47, 348–51, 253 Cal.Rptr. 199, ual overtones,’’ and ‘‘specifically sexual vio- 763 P.2d 1289 (1988). lence [was] repeated in almost every detail with both victims.’’ Id. at 350, 253 Cal. II. Rptr. 199, 763 P.2d 1289. Both women were found naked and lying on their backs, A. The Jury Heard Overwhelming and Hernandez threw both of their clothes Evidence of Hernandez’s Specific out of his van after driving away from Intent to Rape and Kill both Bris- their bodies. The substantial similarities tol and Ryan between the crimes showed that Hernan- Ample evidence of Hernandez’s specific dez intended and premeditated both rapes intent to rape and kill both Bristol and and murders. Cf. id. at 341, 253 Cal.Rptr. Ryan supported the jury’s verdict. First, 199, 763 P.2d 1289 (characterizing the of- the two crimes were committed within fenses as ‘‘ ‘signature’ crimes—because of days of each other and were strikingly the unique nature of each killing it was similar, strongly suggesting premeditation. reasonable to believe the same person Bristol and Ryan were around the same committed them both’’). age—21 and 16, respectively—and both Second, Hernandez’s own words during had shoulder-length blonde hair and simi- his confession showed his intent. He ex- lar body types. Hernandez, 47 Cal. 3d at plained the beginning of his attack on Bris- 328, 341, 253 Cal.Rptr. 199, 763 P.2d 1289. tol as follows: Both women were enticed into Hernan- dez’s van, raped, and sodomized. Hernan- [Bristol] started telling me about all her dez taped Bristol’s wrists, ankles, and problems, and I was mad, and I told mouth with duct tape; tape was also found her not to tell me about her problems, near Ryan’s body. Id. at 328, 253 Cal.Rptr. and then she started bitching, and I just 1 199, 763 P.2d 1289. According to patholo- stopped my van. I got out, walked gist testimony, each victim was subjected around and told her to get out, and she to ‘‘extremely similar and extremely rare’’ wouldn’t get out, so I hit her, and I wounds to the vagina and anus, likely dragged her out of my van, and then she caused by forcible insertion of a large ob- told me that she’d do anything, and I ject, possibly a baseball bat. After each thought about that for a minute, and – I woman struggled and screamed, Hernan- don’t know it was just that I was drunk dez strangled each of them. Both women and I was in a weird mood, and I just TTT were found in the early morning hours, took her and I threw her in the back their bodies abandoned near schools on and then I told her to get out and get in TTT grassy parkways. Their bodies bore other the front and I proceeded to drive TTT similar injuries—wounds inflicted by on the Long Beach Freeway[.] punches to the mouth, significant bruising (Emphasis added.) Hernandez then parked around their necks, bite marks on their at a separate location and told Bristol to

1. The majority summarizes this portion of Hernandez’s statement. While he mentions Hernandez’s confession as follows: ‘‘He getting lost, Hernandez clearly connects his picked up Bristol hitchhiking but when he got anger to Bristol’s continued discussion of her lost, he got mad and stopped the van.’’ Opin- problems. ion at 847. This is a mischaracterization of

App. C - 46 HERNANDEZ v. CHAPPELL 861 Cite as 878 F.3d 843 (9th Cir. 2017)

‘‘get in the back’’ and ‘‘to take off her hand over her and I grabbed some piece clothes.’’ There was no exit from the back of material TTT I pushed that over her of the van, as a passenger would have to face TTT and then—uh—she stopped climb through the driver’s side door to get moving. out of the vehicle. Hernandez, 47 Cal. 3d Hernandez also admitted to ‘‘forc[ing] at 345 n.18, 253 Cal.Rptr. 199, 763 P.2d [Bristol] up against the hot engine cowling 1289. Hernandez described what happened of the van in order to burn her breasts’’ next: during the forcible sodomy. Hernandez, 47 [S]he did, she was willing, and sat there, Cal. 3d at 332, 253 Cal.Rptr. 199, 763 P.2d [we] had sexual intercourse once, then I 1289. His motivation was clear by his own was getting up and getting ready to let admission: he suffocated Bristol as punish- her go, and I didn’t really have her— ment for not ‘‘being cool’’ after he violently you know—forcibly. I guess maybe she raped and sodomized her. And the acts thought I did but I don’t know—you Hernandez took to render Bristol ‘‘totally know. I proceeded to get up and get my defenseless’’—attacking her in the back of clothes on, and I was going to let her the van, from which she could not escape, out. and taping her arms, legs, and mouth— (Emphasis added.) While Hernandez tried also suggested premeditation and intent to to minimize his conduct by claiming that kill. See Crittenden v. Ayers, 624 F.3d 943, they had consensual intercourse, his state- 963 (9th Cir. 2010) (viewing petitioner’s ment reveals, in several respects, his gagging and tying of his victims as evi- awareness of Bristol’s lack of consent and dence of premeditation supporting a first his specific intent to rape her—pondering degree murder conviction). In fact, Bris- her plea that she would ‘‘do anything;’’ tol’s wrists and ankles ‘‘had been bound so driving to a different location; ordering her tightly that there were ligature marks on to get into the back of the van and take off the skin and hemorrhage in the underlying her clothes; and, after raping her, admit- tissues.’’ Hernandez, 47 Cal. 3d at 344–45, ting that he was preparing to ‘‘let her go’’ 253 Cal.Rptr. 199, 763 P.2d 1289. or ‘‘let her out.’’ Hernandez’s confession contains even Tragically, Hernandez’s violence only in- more compelling details of his intent to creased as the evening progressed. Bristol rape and murder Ryan. Ryan and Hernan- struggled against Hernandez, kicking him dez were friends, and spent time together and kicking a hole in the door of his van. in a group the evening of her death. The This made Hernandez go ‘‘bezerk,’’ and, in California Supreme Court described Her- his own words: nandez’s actions that evening as follows: I just threw her over, taped her up TTT I During the evening of playing pool and taped her wrists. I taped her legs TTT drinking beer, it was evident to several [a]round the ankles, and then I taped in the group that defendant was focusing her around the hair, and then I proceed- considerable unwelcome attention on ed to fuck her in the assTTTT [A]nd then Ryan. He tried to put his arms around I told her that if she was good after her, pinched her in the buttocks and put that; I told her if she was going to be his hands on her hips, but she kept cool, I’d let her up and I was going to let pushing him awayTTTT Outside, defen- her go, and then when I let her up, she dant told Jackson he wanted to make a started just kicking and hitting, and ‘sandwich’ out of Ryan; he wanted to kicking and hitting me, so I just put my ‘fuck her in the butt until she screams.’

App. C - 47 862 878 FEDERAL REPORTER, 3d SERIES

He told Jackson he would ‘get some and then she was—I told her to mellow tonight or tomorrow night.’ out and to start putting her clothes on, Hernandez, 47 Cal. 3d at 329–30, 253 Cal. and I turned around to start doing it Rptr. 199, 763 P.2d 1289.2 Hernandez’s again, and then she started screaming aggressive unwanted sexual touching of again and everything, and I just—I Ryan at the bar, and his stated intent to don’t know—I grabbed her, and I just— later ‘‘make a ‘sandwich’ ’’ out of Ryan and I tried to shut her up and TTT [g]rabbed ‘‘fuck her in the butt until she screams’’ her around the throat TTT [w]ith one of strongly suggest that he planned ahead of my hands, and put one of my hands over time to sexually assault and rape her. That her mouth to keep her quiet. same evening, Ryan ended up in his van, Hernandez strangled Ryan to death, and and although Hernandez again tried to later admitted that he was thinking, in the minimize his conduct by claiming that she same moment, of how he had killed Bristol ‘‘submitted freely,’’ the evidence suggests in the same way just days before. His self- that she was forced. Before the group of serving statement that he was ‘‘just TTT friends dispersed from the bar, Ryan’s try[ing] to shut her up’’ is undermined by friend overheard Hernandez ask Ryan to the fact that Ryan had significant bruising meet up with him after the gathering, and around her neck—showing his intent to kill Ryan responding ‘‘no.’’ Hernandez admit- her, not simply quiet her screams. See ted to the police that Ryan was ‘‘hesitant’’ People v. Frank, 38 Cal 3d. 711, 733, 214 about having sex with him but when he got Cal.Rptr. 801, 700 P.2d 415 (1985) (stating ‘‘mad,’’ she finally ‘‘said oh, okay’’ because that ‘‘strangulation TTT [as] a manner of he had pushed her arms down and was killing shows at least deliberate intent to about to force himself upon her. Despite kill’’ and can ‘‘support an inference of pre- Hernandez’s self-serving statements mini- meditation and deliberation’’). Significant- mizing the amount of force used, his intent ly, not only was he fully aware of his to rape Ryan is clear. actions, Hernandez also had the presence Hernandez’s confession, coupled with of mind to contemplate the consequences. the physical evidence, also revealed his After he killed Ryan, he cut her torso with intent to murder Ryan. After she was a piece of glass in a deliberate attempt to raped and forcibly sodomized, Ryan, like make her body look different than Bris- Bristol, was screaming, kicking, and resist- tol’s. Hernandez’s chilling insight into his ing. Hernandez described his response as own motivations gave the jury powerful, follows: direct evidence of his willfulness, delibera- I grabbed her, [held] onto her, and— tion, and premeditation. uh—then she gargled—she like sput- Finally, the level of detail in Hernan- tered up—you know—I guess I was dez’s confession provided further compel- choking her too hard, and then I let go, ling proof that he was aware of and intend-

2. Ryan’s stepmother also testified to suspi- out to play pool, but her pool cue and jacket cious circumstances surrounding her daugh- were on the living room floor. Id. at 329, 253 ter’s room. The morning after Ryan’s death, Cal.Rptr. 199, 763 P.2d 1289. ‘‘[Her] purse her stepmother found ‘‘the lights still on and was outside on the ground and items from the the drapes and the sliding glass door open. purse were spilled out.’’ Id. The jury could TTT [H]er bedroom window was open and have believed that Hernandez kidnapped Hernandez missing in its screen.’’ , 47 Cal. 3d Ryan, which would support a finding of spe- at 328–29, 253 Cal.Rptr. 199, 763 P.2d 1289. cific intent to rape. Ryan had told her stepmother she was going

App. C - 48 HERNANDEZ v. CHAPPELL 863 Cite as 878 F.3d 843 (9th Cir. 2017) ed his actions. In a largely chronological 1155–59 (C.D. Cal. 2011). Moreover, Dr. fashion, Hernandez took the police through Clausen’s explanation entirely fails to ac- the events leading up to the rapes and count for the many personal reflections murders, including very specific descrip- that Hernandez freely shared about his tions of his actions. Apart from detailing feelings during the commission of the two his thoughts and motivations, see supra, crimes, like how he ‘‘thought about’’ Bris- Hernandez admitted to mutilating both of tol’s offer to ‘‘do anything’’ after he hit her. his victims’ bodies post-mortem, and de- It is hard to imagine how a police officer scribed the nature of the markings in de- could have fed Hernandez such specific tail. Hernandez said that he burned Bris- information about his motivations and the tol’s pubic hair, explaining that he acted source of his anger, which Hernandez out of anger because Bristol had kicked clearly articulated. him and damaged his van. He specifically In sum, the jury heard overwhelming remembered burning her left breast with a evidence that Hernandez had the specific match, distinguishing that burn from the intent to rape both Bristol and Ryan, and burns to her right breast caused by push- that he murdered both women willfully, ing her up against the hot car during deliberately, and with premeditation. forcible sodomy. He also described burning Ryan’s pubic hair with a lighter and putting out the flame with his hand, and B. The Relatively Weak Diminished cutting Ryan’s nipple with a piece of bro- Capacity Evidence Would Not ken glass. Significantly, Hernandez admit- Have Resulted in a Reasonable ted all of this to the police before seeing Probability of a Different Out- any pictures of Bristol or Ryan’s bodies. come His detailed recollection belies any sugges- The strength of the evidence of Hernan- tion that he was somehow in a dissociative dez’s intent to rape and kill contrasts state when he raped and killed Bristol and sharply with the relatively weak evidence Ryan and deliberately mutilated their bod- ‘‘that might have been presented had coun- ies. sel acted differently’’—specifically, evidence that his mental condition rendered The majority dismisses the relevance of him incapable of forming the requisite in- Hernandez’s confession because a single tent. See Clark, 769 F.3d at 728 (quoting expert, Dr. Clausen, opined that Hernan- Murtishaw, 255 F.3d at 940). To reverse dez’s ‘‘ostensible recollection of details’’ the murder convictions, the majority sig- was not inconsistent with a diminished ca- nificantly overstates the habeas experts’ pacity defense. Opinion at 856–57. Dr. findings. Clausen based her rejection of Hernan- dez’s detailed recollection on the specula- At his post-conviction hearing, Hernan- tion, without any support in the record, dez presented testimony from five experts: that because Hernandez spent five hours psychologist June Madsen Clausen, psychi- with the police before the recording of his atrist Dorothy Otnow Lewis, criminologist confession, they must have fed him details Sheila Balkan, clinical psychologist Charles of the crime. But the district court found Sanislow, and neuropsychologist Ruben that Hernandez’s confession was volun- Gur. Hernandez, 824 F.Supp.2d at 1043. tary, accurate, and reliable, and Hernan- Drs. Sanislow and Gur were used to rebut dez does not challenge those findings here. the findings of the state’s expert, clinical Hernandez v. Martel, 824 F.Supp.2d 1025, psychologist Daniel Martell.3 Id. at 1062.

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Dr. Sanislow merely reviewed and com- victims were afraid, did not consent to mented on Martell’s discredited evaluation sexual activity, and resisted him. And of Hernandez. He found that the absence while, in deposition, Dr. Gur concluded of bipolar indications in Martell’s then- that ‘‘either schizophrenia or bipolar illness recent testing of Hernandez ‘‘[was] not a is probably applicable in his case,’’ he also sufficient basis on which to conclude that admitted that Hernandez could suffer from Mr. Hernandez is not bipolar,’’ and that a something else entirely, ‘‘such as attention negative finding on the administered psy- deficit, hyperactivity disorder, impulse chometric test ‘‘does not rule out the pres- controls.’’ Hernandez, 824 F.Supp.2d at ence or past presence of psychopathology 1063 (emphasis added) (quoting Dr. Gur’s (e.g., dissociative disorders, bipolar or oth- deposition). er affective disorders).’’ (Emphases add- Dr. Lewis diagnosed Hernandez with ed.) While his conclusions were sufficient, psychosis and bipolar disorder, found that among other reasons, to lead the district he had ‘‘compromised mental functioning,’’ court to discount Martell’s evaluation, they and concluded that his ‘‘capacity to form are certainly not a conclusive diagnosis of the specific intent to rape and kill[ ] was bipolar disorder. substantially impaired’’ at the time he committed the crimes. Dr. Balkan, a crimi- Dr. Gur, the second rebuttal expert, be- nologist, provided a social history of Her- lieved Hernandez suffers from brain dys- nandez’s life and otherwise largely quoted function. He found ‘‘clear indicat[ions] that Dr. Lewis’s conclusions. While these evalu- [ ] Hernandez has deficits in understanding ations raise concerns about Hernandez’s and interpreting facial expressions of af- mental stability, they do not show that fect, which would provide’’ the basis ‘‘for Hernandez lacked the ability to form the such confusion and misperceptions to have necessary specific intent for these crimes. occurred during the commission of the Dr. Lewis found Hernandez’s mental state crimes TTT interfer[ing] with his ability to to be ‘‘compromised’’ and ‘‘substantially comprehend and formulate an appropriate impaired,’’ but not necessarily inconsistent response to the victims’ expressions of re- with specific intent to murder and rape. sistance and fear,’’ and ‘‘significantly inter- And, as she acknowledged, no single factor fer[ing] with his ability to make the right in Hernandez’s difficult life accounts for judgment.’’ But a lack of good judgment is his violent crimes. not equivalent to the inability to form spe- The final habeas expert was Dr. Clau- cific intent. Moreover, Hernandez’s own sen, whose opinion comes closest to stating statements—even made to Dr. Gur himself definitively that Hernandez could not have during their evaluation 4—belie the notion had the necessary specific intent. Dr. Clau- that Hernandez could not perceive the sen opined that Hernandez ‘‘was in a trau- emotions of his victims. On the contrary, ma-induced dissociative state’’ at the time Hernandez was able to articulate that his of his crimes, ‘‘and as a result, has no

3. Like the majority, I give no independent does not explain how he concludes that Her- consideration to Martell’s findings because nandez could have the mental capacity to the district court found significant problems commit forcible sodomy in that instant, but See Her- with his methodology and credibility. lack the capacity to form specific intent im- nandez , 824 F.Supp.2d at 1056. mediately before (while raping) or after (while 4. Hernandez told Dr. Gur that Bristol ‘‘did strangling). not consent to anal intercourse.’’ Dr. Gur

App. C - 50 HERNANDEZ v. CHAPPELL 865 Cite as 878 F.3d 843 (9th Cir. 2017) subsequent actual recollection of the dissociative state when he ‘‘thought about’’ events that transpired.’’ But the sugges- Bristol’s offer to ‘‘do anything’’ to save tion by Dr. Clausen that Hernandez was in herself from his violence; when, earlier in a dissociative state and ‘‘had no subse- the evening, he sexually harassed Ryan quent actual recollection’’ of his crimes is and bragged of plans to ‘‘get some’’ later; totally contradicted by his detailed confes- or when he pushed Ryan’s arms down and sion, the voluntariness and reliability of raped her after she said no to sexual inter- which Hernandez does not dispute. course. In fact, even Dr. Clausen, who Even generously construed, these opin- speculated that the police fed Hernandez ions are grossly inadequate to undermine the details of his confession and that Her- the evidence that Hernandez was capable nandez in fact did not remember much of of forming, and in fact formed, the intent the crimes due to dissociation, stated that to rape and kill Bristol and Ryan. First, Hernandez had ‘‘personal memory up to the experts fail to account for the striking and including having sex with Edna Bristol similarities between the two crimes. Dr. in the back of his van.’’ Dr. Gur’s dissocia- Gur theorized that mental impairments tion theory was similarly temporally limit- like Hernandez’s could cause someone to ed, noting that Hernandez’s ‘‘clinical pro- ‘‘engage in a complex set of behaviors file is further indication that he was in a without intent or premeditation,’’ leading dissociative state during his commission of to ‘‘highly organized if somewhat ritualistic the crimes, or at least during some por- behavior.’’ Opinion at 857. The majority tion of that epoch, e.g., when he killed or relies on this to argue that the ‘‘sheer inflicted post-mortem injuries.’’ (Empha- bizarreness of the nearly identical crimes’’ sis added.) Thus, even assuming Hernan- would have ‘‘supported, rather than under- dez dissociated during the murders, the mined’’ a mental illness diminished capaci- experts’ conclusions actually support the ty defense, Opinion at 857, but that infer- inference that Hernandez was at least ence is implausible. Hernandez’s behavior aware of, and intended, his actions during does not suggest ritual so much as it ex- the rapes. The intent to rape alone is presses an intent to murder Bristol and enough to support the murder convictions. Ryan because, as Hernandez himself explained, he was angry at their resistance.5 Finally, the experts’ dissociation theory And none of the other experts even at- fails to account for Hernandez’s detailed tempted to explain how Hernandez could explanation of his actions, thoughts, and have committed two such similar crimes motivations during the crimes. Drs. Gur within a five-day period without intending and Lewis surmised that Hernandez’s con- to do so. fession suggested that he was in ‘‘an al- Second, the experts’ reports also fail to tered mental state’’ on the nights of the counter the overwhelming evidence that crimes based on his statement that he Hernandez intended to rape Bristol and ‘‘wasn’t even feeling that [he] did it,’’ and Ryan. The habeas experts uncovered no his request for psychiatric help because he evidence to suggest Hernandez was in a ‘‘[didn’t] know what would make [him] do

5. The majority also points to the similarities at a high risk of perpetrating similar acts on between the child abuse suffered by Hernan- others.’’ But Dr. Lewis does not claim this dez and the way he harmed his victims. Opin- heightened risk might create a lack of capaci- ion at 854–55, 857–58. As Dr. Lewis noted, ty to form specific intent or that the abuse ‘‘[c]hildren who have had objects shoved into victim would only inflict similar violence their rectums repeatedly against their will are while in a dissociative state.

App. C - 51 866 878 FEDERAL REPORTER, 3d SERIES this.’’ The majority finds this ‘‘evidence of failed to investigate, Opinion at 855–56, but psychosis’’ would have been a convincing every cited case contains far more compel- counterweight to his detailed confession. ling evidence of prejudice than we have Opinion at 856–57. But ‘‘a reasonable jury here. All the cases relied on by the majori- could have easily chosen to disbelieve ty involve defendants with conclusive diag- [these] self-serving’’ statements in light of noses of significant psychosis and mental Hernandez’s extensive account of his in- health problems. In Daniels v. Woodford, nermost thoughts and motivations on the the petitioner had been diagnosed with nights of the crimes. See United States v. schizophrenia and a paranoid disorder that Nicholson, 677 F.2d 706, 709 (9th Cir. he experienced ‘‘at significant times prior 1982). Moreover, while Drs. Gur and Lewis to the shootings as well as during the make much of the fact that Hernandez is shooting’’ of which he was convicted. 428 persistently ‘‘unable’’ to explain why he F.3d 1181, 1204 (9th Cir. 2005). In Jen- committed the brutal murders, this asser- nings v. Woodford, the petitioner was a tion is squarely contradicted by the record. diagnosed schizophrenic and ‘‘a long-term Hernandez provided a plausible, albeit methamphetamine addict who had used the drug on the night’’ of his crime; had a deeply disturbing explanation of his mo- history of suicide attempts; repeatedly ‘‘in- tives—he was angry at Bristol for talking jur[ed] himself intentionally and pour[ed] too much, kicking him, and kicking a hole liquids in the resulting wounds,’’ and had in his van, and he was angry at Ryan for been involuntarily committed for psychiat- screaming and trying to escape. His expla- ric reasons. 290 F.3d 1006, 1015 (9th Cir. nation of how he expressed that anger 2002). In Bloom v. Calderon, the petitioner (rape, forced sodomy, and strangulation) had previously been referred for psychiat- suggests intentional, premeditated actions ric treatment, had experienced auditory and not dissociation or a lack of control and visual hallucinations, and post-convic- that would negate the mens rea required tion experts found ‘‘striking, consistent for a first degree murder conviction. As and clear evidence of cognitive sensori- the California Supreme Court correctly ex- motor [sic] deficits, brain dysfunction and plained, ‘‘clearly the killings occurred when brain damage.’’ 132 F.3d 1267, 1274, 1276 the victims screamed and struggled to get (9th Cir. 1997). In comparison, Hernan- away. They occurred as a direct product of dez’s experts reached far less definitive the sexual assaults and to silence the vic- conclusions regarding the extent of Her- tims.’’ Hernandez, 47 Cal. 3d at 348, 253 nandez’s neurological damage and mental Cal.Rptr. 199, 763 P.2d 1289. illness and how his conditions might have Given the weakness of the omitted ex- affected his ability to form the requisite perts’ evaluations when compared to the intent. overwhelming evidence actually presented Moreover, in Daniels, our prejudice to the jury, there is no reasonable possibil- finding was driven by the relevance of ity of a different outcome in this case. See fully-developed diminished capacity evi- Strickland, 466 U.S. at 694, 104 S.Ct. 2052. dence to possible imperfect self-defense. We noted that the petitioner’s paranoia C. The Majority’s Remaining Argu- and schizophrenia could have led him to ments Are Unconvincing believe the police officers he shot ‘‘were The majority notes that we have ‘‘re- coming to kill or seriously harm him.’’ 428 peatedly’’ found prejudice where ‘‘there F.3d at 1208. Indeed, they had actually was some evidence of the defendant’s men- done so before. Id. at 1209 (noting ‘‘that tal impairments in the record’’ that counsel Daniels had previously been shot by the

App. C - 52 WELLINGTON v. BERRYHILL 867 Cite as 878 F.3d 867 (9th Cir. 2017) police nine times’’). See also Seidel v. Mer- challenging decision to deny her applica- kle, 146 F.3d 750, 756–57 (9th Cir. 1998) tion for disability insurance benefits (DIB) (finding prejudice where counsel failed to and the decision to partially grant her investigate his client’s mental health for a application for supplemental security in- possible imperfect self-defense theory come (SSI). The United States District where petitioner had been convicted of Court for the Eastern District of Califor- knifing someone during a struggle). That nia, D.C. No. 1:14-cv-01207-SMS, Sandra context is entirely absent here. M. Snyder, United States Magistrate Finally, while diminished capacity, when Judge, 2016 WL 224184, affirmed. Claim- available, could serve as a defense even to ant appealed. crimes that involved significant premeditation, see Daniels, 428 F.3d at 1207–08, no Holding: The Court of Appeals, Gould, reasonable juror would have discounted Circuit Judge, held that substantial evi- Hernandez’s disturbing but plausible ex- dence supported ALJ’s finding that claim- planation of his state of mind as he raped ant’s disability began the day she was first and murdered Bristol and Ryan. The men- examined by mental health specialist, and tal health and neurological evidence pre- thus, ALJ was not required to consult sented on collateral review cannot explain medical advisor. away this awareness such that a rational Affirmed. juror would have found Hernandez to lack the required specific intent to rape and kill Watford, Circuit Judge, filed dissenting Bristol and Ryan. opinion. * * * I respectfully dissent from Part II of the O majority opinion and would deny the habe- 1. Social Security 274 as petition. Court of Appeals reviews de novo the district court’s order affirming the Com- missioner of Social Security’s denial of , benefits.

2. Social Security O261(3), 263(3) Laurie L. WELLINGTON, Court of Appeals will affirm the Com- Plaintiff-Appellant, missioner of Social Security’s decision in a v. disability benefits case unless it is not sup- Nancy A. BERRYHILL, Acting ported by substantial evidence or is based Commissioner Social Security, on a legal error. Defendant-Appellee. 3. Social Security O209(1) No. 16-15188 The ALJ is responsible for studying United States Court of Appeals, the record in a disability benefits case and Ninth Circuit. resolving any conflicts or ambiguities in it. Argued and Submitted September 14, 2017, San Francisco, California 4. Social Security O11 Filed December 29, 2017 Although Social Security Rulings do Background: Claimant brought action not carry the force of law, they are never- against Commissioner of Social Security theless binding on ALJs.

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 FRANCIS HERNANDEZ, ) CASE NO. CV 90-4638 RSWL ) 12 Petitioner, ) DEATH PENALTY CASE ) 13 v. ) ) ORDER GRANTING IN PART 14 MICHAEL MARTEL,* ) PETITION FOR WRIT OF Acting Warden, California State ) HABEAS CORPUS 15 Prison at San Quentin, ) ) 16 Respondent. ) 17 ) 18 This matter is before the Court on petitioner Francis Hernandez’s petition for 19 writ of habeas corpus. The Court has read the parties’ briefs, together with 20 supporting documentation. For the reasons and in the manner set forth below, the 21 Court hereby GRANTS IN PART the petition for writ of habeas corpus based upon 22 the ineffective assistance of counsel, jury misconduct and cumulative error. 23 I. Factual Background 24 An L.A. County jury convicted Francis Hernandez of two counts of first- 25 degree murder, two counts of forcible rape and two counts of sodomy. The jury 26 found true the special circumstance allegations that each murder occurred during 27 the commission of rape and sodomy and that petitioner was convicted of more than 28

* Michael Martel is substituted for his predecessors as Acting Warden of the California State Prison at San Quentin, pursuant to Federal Rule of Civil Procedure 25(d).

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1 one murder. At penalty, the prosecution presented no evidence in aggravation. 2 The defense presented evidence that petitioner was young and drunk at the time of 3 the crimes, that he came from a dysfunctional home, that he probably had 4 borderline personality disorder, that he once helped a friend and that his life should 5 be spared due to the love of his family and friends and his chance for religious 6 salvation. Petitioner testified at the penalty phase, but only about the 7 circumstances of the crime. The jury recommended death. The trial court 8 condemned petitioner. Petitioner was eighteen at the time of the crimes. 9 II. Procedural History 10 On direct appeal, the California Supreme Court vacated the multiple-murder 11 special circumstance but otherwise affirmed petitioner’s conviction and sentence. 12 People v. Hernandez, 47 Cal.3d 315, 253 Cal. Rptr. 199, 763 P.2d 1289 (1988). 13 Petitioner filed a petition for writ of habeas corpus in this Court on August 14 28, 1990. Two years later, petitioner filed his second state habeas petition in the 15 California Supreme Court in order to exhaust claims contained in his federal 16 petition. The state court denied the exhaustion petition several months later. 17 Petitioner returned to federal court, filing an amended petition on March 18, 1993. 18 Litigation concerning a motion to dismiss and a motion for summary judgment 19 ensued for many years. The Court ultimately granted partial summary judgment to 20 respondent. The Court then granted an evidentiary hearing on three issues of jury 21 misconduct and two claims of ineffective assistance of counsel (“IAC”). The 22 Court bifurcated the evidentiary hearing on IAC, directing the parties to address 23 deficient performance and prejudice separately. For six years, the parties 24 conducted a paper evidentiary hearing on juror misconduct and IAC.1 25 26 27 28 1 Petitioner filed his third state habeas petition in the California Supreme Court on June 26, 2007. The California Supreme Court denied the petition on the merits on June 11, 2008.

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1 III. Discussion 2 A. Mental Health Evidence 3 Many of petitioner’s claims involve mental health evidence, including 4 whether he had the requisite mens rea at the time of the crime and whether counsel 5 failed to investigate and present mitigating evidence, among others. The mental 6 health evidence falls into two categories: evidence gathered before petitioner’s 7 capital trial and evidence gathered and presented as part of petitioner’s federal 8 evidentiary hearing. Both are summarized here. 9 1. Mental health evidence known before trial 10 Prior to trial, seven experts had contact with petitioner. Trial counsel had 11 access to the opinions of each of these experts. 12 Petitioner had been incarcerated in the California Youth Authority (“CYA”) 13 following a conviction for second-degree burglary for breaking into a drug store. 14 CYA clinical psychologist Audrey Prentiss evaluated petitioner in August of 1979, 15 about 18 months before the murders took place. Dr. Prentiss found that petitioner 16 functioned “within the high average range of intellectual ability.” (7 CDD2 at 17 P01214.) Dr. Prentiss concluded: 18 [Petitioner] showed confidence in himself and in his abilities and has 19 good social skills. He tends toward ingratiating behavior that is somewhat manipulative in quality. His behavior is characteristic of an 20 antisocial personality in that he is aware of what he is doing, realizes that he is capable of doing it and goes about doing it with impunity. 21 He perceives the environment in selfish terms without regard for the possible consequences that it may have on others. This attitude 22 appeared to have been related to the fact that this ward has had to assume a lot of responsibility for himself at a young age and has 23 learned to manipulate the environment for his own needs. Having had to assume this responsibility, he had difficulties in accepting the 24 pressures that are part of it . . . . There were no indications of organicity nor of a neurological dysfunction. He is not suicidal or 25 homicidal.

26 (Id. at P01215-16.) 27 28 2 CDD refers to the deposition of Charles Downing.

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1 Deputy public defender John Torelli initially represented petitioner for his 2 capital prosecution, though Torelli withdrew before trial due to a conflict. Torelli 3 consulted three mental health experts: clinical psychologist Michael P. Maloney 4 and psychiatrists Michael B. Coburn and Alvin E. Davis. 5 Torelli provided Dr. Maloney with the preliminary hearing transcript; the 6 information, the autopsy, arrest and crime reports; and a five-page account of 7 petitioner’s background, which focused mostly on petitioner’s adoptive parents and 8 contained very little information about petitioner’s biological parents. (JTD3 at 9 P00814-23 (Exhs. 12-16).) Torelli asked Dr. Maloney to “conduct a full 10 psychological evaluation, including all the standard testing that you would 11 normally give to a prospective patient,” and sought Dr. Maloney’s opinion “as to 12 any major psychological or minor psychological disorder, including, but not 13 limited to, anything involving a defense, such as insanity, diminished capacity or 14 mitigation in the penalty phase.” (JTD at P00814.) Dr. Maloney concluded that 15 while petitioner did not appear psychotic, the “data do suggest some potentially 16 serious psychological problems.” (Id. at P00829.) Dr. Maloney found that 17 petitioner had a “highly pathological profile” and that he had significant elevations 18 on scales measuring hypomania, schizophrenia, psychopathic deviate and paranoia. 19 (Id.) People with similar profiles “are often described as having episodes during 20 which they are seen a demanding, confused, hostile, hyperactive, panicky and 21 circumstantial. They may additionally be restless, evasive and high strung.” (Id.) 22 Petitioner’s profile suggested “a fair amount of hostility.” (Id.) Dr. Maloney 23 explained that people with profiles similar to petitioner “show intense overreaction 24 to normal rejection” and may exhibit a “tendency to be susceptible to sexual 25 identity confusions.” (Id. (internal quotation marks omitted).) Dr. Maloney stated 26 that “the most likely descriptive diagnosis is schizo-manic episode. This would 27 28 3 JTD refers to the deposition of John Torelli.

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1 suggest a state wherein there is some breakdown in the thinking processes 2 combined with an elevated or manic-like state. ” (Id. at P00830.) While the most 3 technical diagnosis would be schizophrenia, Dr. Maloney stated that petitioner 4 “shows no overt signs of schizophrenia, but he clearly does appear to have a 5 variety of psychological problems.” (Id.) Dr. Maloney concluded as follows: 6 The present data suggest that we have an individual who 7 functions in the normal range of general intelligence with no suggestion of any specific cognitive-intellectual or perceptual deficit. 8 He also does not manifest any of the primary signs of a major condition such as psychosis. Present data do, however, indicate that 9 he has significant psychological problems and comes from a very unstable background with multiple noted difficulties relating to his 10 parents as well as problems between his parents. 11 I was able to obtain from Mr. Hernandez a fairly specific account of the events occurring at the time of the present alleged 12 offenses. As you know, at both of these times he was drinking heavily, but he is, nevertheless, able to recall a number of his activities 13 and behaviors. 14 15 (Id. at P00830.) Dr. Maloney testified at the penalty phase. He opined that he 16 “had no data to suggest that [petitioner] would not be responsible for his behavior” 17 at the time of the crime and that petitioner “was drinking at the time [of the crimes] 18 but beyond that, he should have had the capacity to understand what he was 19 doing.” (14 RT 3473; see also 14 RT 2374 (“I have no information to indicate that 20 he shouldn’t have been able to appreciate [what he was doing] . . . . I have no data 21 to indicate that he was psychotic or severely disturbed at [the time of the crime.]”) 22 Torelli also consulted Dr. Coburn. Torelli sent Dr. Coburn the same 23 materials sent to Dr. Maloney, but also added Dr. Maloney’s report, the transcripts 24 of petitioner’s confession and petitioner’s statement to his girlfriend. Torelli asked 25 Dr. Coburn to evaluate whether petitioner was competent to stand trial, insane, 26 capable of forming the specific intent to commit any crime, particularly rape, and 27 whether petitioner suffered from any mental disease or defect or an emotional or 28 psychological disorder that could provide mitigating evidence at the penalty phase.

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1 (JTD at P00831-32.) Dr. Coburn interviewed petitioner for a total of two hours. 2 Dr. Coburn concluded that petitioner was sane at the time of the offenses, that 3 petitioner “would have been capable of forming all of the requisite intents involved 4 in varying degrees of homicide” and that “there is no indication that he would have 5 lacked the capacity to form any specific intent in regards to the sexual aspects of 6 the case.” (Id. at P00841.) Dr. Coburn’s primary diagnosis of petitioner was 7 “[s]imple intoxication due to alcohol at the time of the offenses.” (Id. at P00840.) 8 Dr. Coburn also opined that petitioner suffered from “[v]ery severe mixed 9 personality disorder with passive-aggressive and antisocial components” and that 10 he experienced “[m]inimal environmental stress at the time of the offenses” along 11 with “[m]oderate early childhood psychosocial stressors.” (Id. at P00840.) Dr. 12 Coburn suggested that, using the data provided by Dr. Maloney, trial counsel could 13 argue that petitioner “did not in fact intend to kill, but merely intended to ‘quiet’ 14 the victims. Given his passive-aggressive or explosive and antisocial demeanor, 15 one could technically argue that his need to quiet them was paramount, and that it 16 was his intolerance of defiance which led to the acts.” (Id. at P00841.) Dr. Coburn 17 added, however, that he “did not harbor an opinion with reasonable certainty that 18 would allow [him] personally to testify in that” manner. (Id. at P00841.) Dr. 19 Coburn did not testify at trial. 20 Finally, Dr. Davis evaluated petitioner. Torelli sent Dr. Davis the same 21 materials sent to Dr. Coburn. Torelli asked Dr. Davis to evaluate whether 22 petitioner was competent to stand trial, insane, whether the defense of diminished 23 capacity could succeed and whether petitioner suffered from any mental disease or 24 difficulty that could provide mitigating evidence at the penalty phase. (Id. at 25 P00844-46.) Dr. Davis diagnosed petitioner with passive-aggressive personality 26 disorder, which involves “anti-social and aggressive acting out,” including drug 27 and alcohol abuse. (Id. at P00547.) Dr. Davis concluded that petitioner was sane 28 at the time of the offenses and “had the mental capacity to form specific intent,

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1 premeditate, and harbor malice,” though “his capacity to deliberate or to maturely 2 reflect was impaired by intoxication.” (Id. at P00547.) Dr. Davis noted that it was 3 plausible that petitioner did not intend to kill the victims, but that his confession 4 showed a lack of overt emotion, consistent with antisocial personality disorder. 5 (Id. at P00548.) Dr. Davis did not testify at trial. 6 At some point after obtaining these expert opinions, Torelli withdrew. 7 Charles Downing took over petitioner’s representation. Downing4 represented 8 petitioner for many months preceding trial through sentencing. Downing’s 9 representation is the subject of petitioner’s IAC claims. Torelli transmitted his file, 10 which included correspondence with Drs. Maloney, Coburn and Davis, as well as 11 each expert’s report, to Downing. Downing consulted three additional experts: 12 clinical and forensic psychologist Faye Girsh, gastroenterologist Amer Rayyes and 13 forensic pathologist S. M. Rabson. 14 Downing provided Dr. Girsh with the reports of Drs. Maloney, Coburn and 15 Davis, as well as Torelli’s correspondence with each expert. Downing informed 16 Dr. Girsh that he was going to pursue an insanity defense because “Hernandez is 17 either insane or he will be gassed.” (5 CDD P00521.) Trial counsel explained his 18 theory of the case to Dr. Girsh: 19 20 I have what I am sure is a hopelessly simplistic view. I think that Francis was one way or another killing his mother. I also am 21 convinced that he is an individual who is crazy that somehow or another keeps his insanity in check so long as he is sober but, with the 22 ingestion of alcohol, whatever it is that permits him to appear sane vanishes and his personality reverts to that which is normal for him, 23 namely nuts. I guess in my simplistic view this is sort of the converse of diminished capacity. In that condition one who is normally sane 24 ingests alcohol or whatever and does something crazy with the loss of inhibitions or whatever. I should note that these offenses were 25 committed at a time when diminished capacity was available as a defense. 26 27 28 4 The terms “trial counsel” and “counsel” refer to Charles Downing.

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1 (Id. at P00524.) 2 Dr. Girsh did not provide trial counsel with a written report, but the record 3 contains trial counsel’s notes from a conversation he had with Dr. Girsh before 4 trial. The notes include Dr. Girsh’s assessment of petitioner: 5 Personality [illegible] a real puzzle: Francis is an apparent anti- 6 social personality disorder type = sociopath. Of 15 criteria, he meets 12. Can’t diagnosis as such due to age. Why age makes a difference? 7 Because, until age 24 or so, personality malleable, can change. Maturation is best therapy for sociopathic personality. He is, 8 presently, classified as a juvenile with such tendencies. Characteristics of syndrome is that he doesn’t care about anything: 9 kills just for hell of it, tortures to cause pain, etc. Also, explosive, intermittent violent conduct; that’s him. [Illegible] drives through 10 plate glass window in van for burglary. That is sociopathic stuff, not what I want. Get Book: “Clockwork Orange”—a profile of a true 11 sociopath.

12 (Id. at P00518.) While counsel worried that the jury’s rejection of a diminished 13 capacity defense at the guilt phase would harm the penalty phase, Dr. Girsh 14 disagreed. (Id. at P00517.) Counsel questioned whether he could use Dr. Girsh to 15 suggest that petitioner killed the victims by accident but without putting on a full- 16 blown diminished capacity defense. That strategy would force the prosecution to 17 ask questions about specific intent on cross examination, ultimately supporting a 18 diminished capacity jury instruction. 19 Dr. Girsh testified at the penalty phase. She opined that petitioner was 20 “essentially out of control” when he committed both crimes. (14 RT 3583.) 21 “[A]pparently at the time that [petitioner] suffocated or strangled the women, he 22 had lost control. He was in some kind of a fit of rage or panic or something that 23 was different from his usual state.” (Id. at 3584.) Petitioner’s behavior was 24 associated with substance abuse disorders and borderline personality disorder. 25 (Id.) A person with borderline personality has periods of self-destructive behavior 26 because the individual is not sure of his identity. (Id. at 3585.) Dr. Girsh hesitated 27 to diagnose petitioner with borderline personality disorder, as the diagnosis can 28 only be made once a person is 18. (Id.) Because petitioner was “just 18" at the

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1 time of the murders, “the diagnosis really would not have applied.” (Id.) On 2 cross-examination, Dr. Girsh testified that self-destructive behavior also was a 3 symptom of antisocial personality disorder. (Id. at 3599.) 4 Dr. Rayyes, a gastroenterologist specializing in alcoholism and drug 5 addiction, testified at the penalty phase. Counsel and his wife both had suffered 6 from alcoholism. Before trial, Dr. Rayyes had conducted an intervention with 7 counsel’s wife, and, later, with counsel. Dr. Rayyes diagnosed petitioner with 8 alcoholism. Dr. Rayyes testified that petitioner would have been “severely 9 impaired” at the time of the crimes and, accordingly, that petitioner would have 10 been unable to form the specific intent to kill. (12 RT 3069-70.) On cross 11 examination, Dr. Rayyes initially repeated his belief that an alcoholic who has been 12 drinking cannot form a specific intent to kill. (13 RT 3082.) When pressed, 13 however, Dr. Rayyes testified that it is “possible” for an inebriated alcoholic to 14 form the specific intent to steal or to kill, and that an intoxicated alcoholic can form 15 the specific intent to commit rape or sodomy. (12 RT 3083, 3084, 3085.) 16 Downing also consulted Dr. Rabson, a forensic pathologist. Trial counsel 17 sent Dr. Rabson the autopsy photographs and reports, a transcript of the coroner’s 18 testimony from the preliminary hearing and petitioner’s statement to the police. 19 Trial counsel asked Dr. Rabson to look for any evidence that either of the victims 20 was moved after death, if sexual intercourse could have been consensual, if the bite 21 marks on the breasts of the victims could have occurred during intercourse or if 22 they were post-mortem, if the vaginal and anal injuries could have occurred post- 23 mortem and if Dr. Rabson would come to any different conclusions from the 24 coroner. (5 CDD at P00530.) A document in trial counsel’s file memorializes 25 counsel’s discussion with Dr. Rabson. Trial counsel noted that “Dr. Rabson tends 26 to be somewhat judgmental, probably due to his [J]ewish upbringing, and has 27 formed the opinion that Hernandez is an obvious, clear sociopath and ought to 28 spend the rest of his life behind bars. (Id. at P00532.) Dr. Rabson concluded that

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1 the condition of the victims’ bodies was consistent with asphyxiation or 2 strangulation, that Bristol may have been moved after she died, that the intercourse 3 in both cases likely was not consensual and that the bite marks and the various 4 vaginal and anal injuries were inflicted pre-mortem. (Id.) Dr. Rabson opined that 5 the coroner conducted the autopsies in a professional and competent manner, other 6 than her failure to investigate Ryan’s abnormally large heart, which did not 7 contribute to the victim’s death. (Id.) Dr. Rabson did not testify at trial. 8 2. Mental health evidence presented in evidentiary hearing 9 As part of the evidentiary hearing, petitioner presented the testimony of 10 psychologist June Madsen Clausen, psychiatrist Dorothy Otnow Lewis, 11 criminologist Sheila Balkan, clinical psychologist Charles Sanislow and 12 neuropsychologist Ruben Gur. Respondent presented the testimony of just one 13 expert: clinical psychologist Daniel Martell. 14 a. Psychologist June Madsen Clausen 15 Dr. Clausen is a psychology professor at the University of San Francisco, 16 where she teaches advanced courses in clinical child psychology, counseling 17 psychology, abnormal psychology and child maltreatment. She conducts research 18 on children, adolescents and young adults who have been placed in the child 19 welfare system due to abuse or neglect and provides outpatient psychotherapy to 20 trauma survivors. (Clausen Decl. at 1, ¶ 2.) Petitioner asked Dr. Clausen to take 21 his social history and to evaluate the effect his background had on both his 22 psychological development and his functioning as an adult, including at the time of 23 the crimes. (Id. at 2, ¶ 4.) Dr. Clausen reviewed witness declarations, educational 24 reports, probation and Youth Authority reports, court records, psychological 25 reports and other materials. She interviewed petitioner five times for a total of ten 26 hours. She also interviewed petitioner’s adoptive mother. (Id.) 27 28

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1 Dr. Clausen provided a detailed social history of petitioner: 2 Francis Hernandez is an adopted child . . . . Francis was a child born 3 into unfavorable circumstances. He is the product of a brief, tumultuous union between a depressed, troubled fourteen-year-old girl and a disturbed, 4 drug-addicted eighteen-year-old boy. Both of Francis’s [biological] parents reportedly have family histories of mental illness. During Francis’s in utero 5 development, his mother consumed marijuana and alcohol, and his father was episodically violent toward his mother. These circumstances often 6 contribute to neurological and psychological vulnerabilities of the kinds that later complicated Francis’s development. He was a child born with special 7 needs. 8 Francis’s mother gave him up for adoption at birth, and soon after he was placed in the home of an adoptive mother and father[,] 9 both of whom were struggling with severe psychiatric and psychological problems. Both Francis’s parents were raised and 10 formed their ideas of family life in violent homes bereft of warmth, caring, nurturing, and attention to the developmental needs of others. 11 In addition, Francis’s [adoptive] mother also suffered from schizophrenia and was episodically psychotic throughout Francis’s 12 childhood. She attempted suicide more than once, spent months-long periods in psychiatric hospitals, and returned home so heavily 13 medicated that she was unable to attend to her own daily living requirements, let alone Francis’s. She also failed to adhere to the 14 prescribed regimen of psychotropic medication and she became 15 psychotic, at times violently. Francis’s father was a paranoid man prone to sudden, violent, 16 and angry outbursts, who never learned to recognize the emotional needs or the distress of others. He was, by all accounts, either unable 17 or unwilling to recognize the gravity of living with a psychiatrically ill spouse and a troubled young child. During Francis’s childhood, his 18 father regularly left [Francis] home alone with his mother, often for 19 week-long periods. 20 (Id. at 2-3, ¶¶ 6-8.) Petitioner’s birth mother, Patricia (“Pat”) Ramos (formerly 21 Urbano, originally Myers), has a family history of depression, bipolar disorder and 22 chemical dependency, all heritable conditions. (Id. at 4, ¶ 12.) Pat takes Paxil, an 23 antidepressant, and has taken Elavil, another antidepressant. She suffers from 24 anxiety and panic attacks, as well insomnia, for which she takes tranquilizers 25 nightly. (Id. at 7 ¶ 20.) 26 In addition, petitioner’s biological father and his family also exhibited signs 27 and symptoms of mental illness. Dr. Clausen provided the following information: 28

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1 Francis’[s] biological father, Anthony (Tony) Marquez, was the 2 last of eleven children born to Paulino and Loretta Marquez, immigrants from Mexico. Anecdotal evidence gathered from 3 surviving family members suggests that, of Francis’s paternal grandparents, both exhibited behaviors consistent with those of 4 individuals with affective disorders. 5 Family members report that at least twenty-three of [petitioner’s biological paternal] cousins have had drug problems. Two have been 6 diagnosed with schizophrenia, one with depression, and one was so extremely hyperactive as a child that he chewed on his hand, nearly 7 capsized a refrigerator onto himself, and had to run circles around a building before he could enter and visit family members 8 inside—behavior, not incidentally, that bears striking clinical resemblance to that of Francis Hernandez as a child. 9 Like many members of his family, Francis’s biological father, 10 Tony Marquez, has struggled with drugs and mental illness throughout his life. Tony is a sixty-year-old man whose limited 11 intellectual functioning and obvious psychiatric impairments keep even a minimal level of self-sufficiency beyond his reach. He has 12 spent most of his life incarcerated. According to Social Security[,] his only reported income was $74.20 in 1963 and $74.93 in 1967. Tony 13 Marquez is a man whose impairments have made it impossible for him to function independently within the law and without the use of 14 drugs. 15 16 (Id. at 9, ¶ 24; 13-14, ¶ 40; 14-15, ¶ 41.) Tony’s prison records describe 17 psychological symptoms that are consistent with clinical depression, mania, 18 substance dependence, and florid psychosis. (Id. at 18, ¶ 51.) Prison staff 19 described his condition as “acute psychosis” and as a “disassociation from reality.” 20 (Id. at 19, ¶¶ 55 (internal quotation marks omitted).) Tony’s condition was 21 sufficiently alarming to prison staff that he was transferred to the prison psychiatric 22 ward after tearing up his sheets. (Id. at 19, ¶¶ 55 (internal quotation marks 23 omitted).) Tony’s psychosis continued: 24 [H]aving apparently failed to respond to the treatment offered 25 by San Quentin, Tony was transferred to the California Medical Facility (CMF) in Vacaville, California, a hospital for acutely ill 26 inmates of the California prison system. Within a few days of his arrival at CMF, he was written up for tearing up his bedding. The 27 disciplinary report for the incident notes that he did so “to decorate his 28 house.”

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1 While he was being treated at CMF, Tony was administered Prolixin and Thorazine—two powerful antipsychotic medications. 2 The doctors at CMF discussed the use of electro-convulsive therapy on Tony. This consideration suggests that his psychosis was severe and that 3 it failed to remit under his prescribed medication. 4 (Id. at 20-21, ¶¶ 58-59.)

5 Dr. Clausen also provided information about petitioner’s adopted mother: 6 Naomi Schilling (now Kuhl)[,] Francis Hernandez’s adoptive 7 mother, also inherited a predisposition to mental illness. Naomi’s parents, a prodromally schizophrenic mother and a depressed, 8 alcoholic father, created a household characterized by extreme isolation, frequent violence and delusional religious fanaticism—the 9 same poisonous atmosphere in which Francis would later be 10 immersed. One of Naomi’s lifelong challenges manifested itself as a 11 cognitive deficit. Even when she was a very young girl, Naomi’s family considered her “different.” During her childhood, she was 12 uncommunicative, shy and visibly “unhappy all the time.” Naomi recalls being socially isolated and exceptionally shy, attempting to pass the days in 13 school with as few words as possible . . . . Naomi suffered from extreme social impairments and members of her family apparently worried that she 14 might be retarded, and her mother openly stated that she thought Naomi was 15 slow . . . . Naomi’s longstanding severe mental illness went undiagnosed 16 until she was thirty years old when the doctors overseeing her months- long inpatient hospitalization in an Orange County psychiatric 17 institution verified that she was suffering from schizophrenia. Since that time[,] she has been psychiatrically hospitalized no fewer than ten 18 times. Over the course of these hospitalizations, medical and mental health professionals have documented many details of Naomi’s life. 19 These documents show that Naomi internalized and replicated the psychopathologies with which she grew up, in particular her family’s 20 violence, its obsession with sex, and its unwavering religious 21 fanaticism. 22 (Id. at 21, ¶ 61; 28-29, ¶¶ 77-78 (citations omitted).) Additionally, Dr. Clausen 23 gathered information about petitioner’s adoptive father. 24 Frank Hernandez, Francis Hernandez’s adoptive father, also 25 came from a severely troubled family governed by the complicated interaction of a number of developmentally harmful 26 psychopathologies. Among these were: the unwavering refusal to acknowledge and address grave familial problems; a complete failure 27 to discuss and contextualize the issue of racism while residing in a community known for its remarkable racial prejudice; a mutually 28 destructive and hostile relationship between the family’s parents; the

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1 noteworthy anger that underlay much of the family’s disproportionate reactions to one another and to the outside world; verbal and physical 2 abuse; and the father’s emotional abandonment of his children.

3 (Id. at 31, ¶ 81.) 4 Naomi and Frank married on January 4, 1958. (Id. at 42, ¶ 108.) Petitioner 5 was born on March 10, 1962. (Id. at 44, ¶ 113.) He was placed with Naomi and 6 Frank on May 17, 1962. (Id.) Petitioner was a hyperactive baby and small child. 7 (Id. at 44, ¶ 113-14.) He had incredible energy. (Id. at 46, ¶ 117.) 8 More than thirty years after petitioner left his preschool, petitioner’s former 9 teacher described petitioner’s family as “troubled to an unforgettable degree.” (Id. 10 at 50, ¶ 130 (internal quotation marks omitted).) Petitioner’s preschool teacher 11 stated that petitioner was “overwhelmed by stimuli and by interactions with other 12 children; extremely labile; unable to sit still, finish projects or move from one 13 activity to another; unable to interpret the social cues of other children; socially 14 isolated; unable to read and respond to other children in a way that allowed 15 friendship to happen; prone to seeing the most benign gesture as a threat; and 16 subject to extreme tantrums that were beyond those of a normal child and in which 17 he entered his own world.” (Id. at 51, ¶ 131 (internal quotation marks omitted).) 18 When petitioner was four and a half, his preschool teacher suggested that 19 petitioner’s parents seek the help of a psychologist or psychiatrist. (Id. at 51, 20 ¶ 131.) Petitioner’s father refused. (Id.) 21 Naomi and Frank attempted to adopt another child in April 1966. (Id. at 53, 22 ¶ 137.) The adoption agency notes reflect the problems petitioner’s family faced: 23 The interviews revealed that Naomi had been candidly 24 uncomfortable about the fact that Francis was an adopted child, that she was incapable of giving directions to her home, barely able to 25 convey simple thoughts, and dependent on Frank to the extent that the adoption worker wondered what this young woman would do, or how 26 she would respond in an emergency situation when her husband was not around . . . . The case worker wondered if there might be some 27 neurological basis for Francis’s uncontrolled activity . . . . After an initial round of interviews, the adoption agency felt obliged to explore 28 Naomi’s mental health. Later, during a home visit, Naomi was unable

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1 to control Francis and ended up crying and needing the consolation of the case worker. 2 3 (Id. at 54, ¶ 139 (internal quotation marks omitted).) The case worker also 4 described the family as living in social isolation. (Id. at 54, ¶ 140.) Naomi and 5 Frank named petitioner’s preschool teacher as a reference despite her earlier 6 criticism of their parenting; she did not recommend them as suitable for adopting 7 another child. (Id. at 54-55, ¶ 141.) The adoption agency referred the family for 8 counseling. (Id. at 55, ¶ 142.) 9 The counselor found petitioner to have a short attention span, excessive 10 energy, a mind that was too active and an inability to differentiate between fantasy 11 and reality. The psychologist recommended that petitioner undergo neurological 12 testing, that Frank and Naomi receive marital counseling and that Naomi receive 13 psychological help. (Id. at 56, ¶ 143.) Naomi, Frank and petitioner attended 14 monthly counseling sessions for a while but did not complete the recommended six 15 months. (Id. at 57, ¶ 145.) Ultimately, the adoption agency denied Naomi and 16 Frank’s application to adopt another child and closed the case. (Id. at 58, ¶ 149.) 17 One month after the denial of the application to adopt a second child, Naomi 18 attempted suicide for the first time. She was hospitalized for several months and 19 diagnosed with schizophrenia during that time. She was treated with Mellaril, 20 which prevented her from functioning normally. (Id. at 54, ¶¶ 150-52.) Her family 21 described her as a zombie who was flat in affect, moved in slow motion, dragged 22 her feet and was like a walking dead person. (Id. at 60, ¶ 154.) She was suicidal 23 upon her release from the hospital and fantasized about hanging herself. She 24 attempted to overdose on sleeping pills. (Id. at 58, ¶ 155.) 25 Naomi disciplined petitioner in unconventional ways. When petitioner acted 26 up, Naomi sat on him until he calmed down. Naomi also forcibly administered 27 enemas to petitioner as punishment. The purpose of the enemas was to keep 28 petitioner clean and to calm him down when he was hyper. (Id. at 57, ¶ 146.)

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1 Frank disciplined petitioner by hitting him with a belt; Frank also gave petitioner 2 boxing lessons when he was a school-aged child. (Id. at 58, ¶ 147.) 3 Naomi continued to struggle with her mental health, especially when she 4 stopped taking her medication. In one incident, Frank dropped Naomi off at her 5 sister Barbara’s house. Barbara and her husband described Naomi’s behavior that 6 night as “bizarre, terrifying, shocking, crazy as a person could be, psychotic, a 7 nightmare, something from a scary movie, sad, frightening, [] horrible, a horror, 8 gruesome and the kind of thing that any normal parent would protect his son from 9 seeing.” (Id. at 65, ¶ 166.) After that night, Barbara would not allow her children 10 to be alone with Naomi and they worried about what impact Naomi’s behavior 11 would have on petitioner. (Id. at 66, ¶¶ 167-70.) Frank did not appear to protect 12 petitioner from Naomi during these episodes. (Id. at 67, ¶¶ 171-72.) 13 In another incident, Naomi threatened Frank’s mother with a knife. Naomi 14 demanded that her mother-in-law kneel and pray. When her mother-in-law fled, 15 Naomi chased her mother-in-law outside with the knife. (Id. at 67, ¶ 173.) 16 By age ten, petitioner withdrew from home life and came home after dark. 17 (Id. at 71, ¶ 185; 74 ¶ 190.) Petitioner’s friends describe his home as depressing, 18 unhappy, awful, messy, dark and full of junk. (Id. at 71-73, ¶¶ 185-88 .) 19 Petitioner did not fit in with other children. He was isolated, frequently 20 depressed and socially awkward. (Id. at 74-78, ¶¶ 191-2.) By thirteen, he was 21 drinking beer daily and smoking marijuana many times a day. (Id. at 78, ¶ 202.) 22 When petitioner was eleven, he broke into his school. (Id. at 79, ¶ 203.) At 23 thirteen, he was caught with a marijuana pipe. He was declared a ward of the court 24 at fourteen. (Id. at 79, ¶ 204.) Later that same year, Naomi suffered another 25 psychotic episode. (Id. at 80, ¶ 206.) She was hospitalized for several months, 26 during which she had sexual encounters with two male patients and said mass in 27 the patient lounge. (Id. at 81, ¶ 206.) She started smoking and believed the devil 28 was entering her body through cigarette smoke. (Id. at 79, ¶ 204.)

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1 Close in time to Naomi’s psychotic break, petitioner was suspended from 2 school for fighting. Weeks later, petitioner arrived at school under the influence of 3 marijuana and was suspended again. A month later, petitioner crashed his 4 motorcycle that he had been driving daily, with his father’s permission, even 5 though he was only fifteen and without a license. Id. at 81, ¶ 207.) Naomi came 6 home for several weeks after her hospitalization but ultimately left to live with her 7 schizophrenic mother in Atascadero. Petitioner was fifteen. Naomi divorced 8 Frank and never lived with him or Francis again. (Id. at 82, ¶ 208.) 9 With Naomi gone and Frank largely absent or uninvolved, petitioner’s home 10 became a hangout for drug dealers and users. (Id. at 82, ¶ 209.) People bought and 11 sold drugs, including cocaine and marijuana. Petitioner had access to and was 12 using PCP, cocaine, amphetamine, LSD, marijuana, hash, mushrooms, heroin and 13 an array of pharmaceutical drugs. The house became even filthier and had broken 14 windows that went unfixed. Frank did nothing to stop the things going on in his 15 home; he blamed the neighbors’ complaints on racism. (Id. at 82-83, ¶ 209-11.) 16 At age fifteen, petitioner began attending high school. Two months later, he 17 crashed his motorcycle, resulting in x-rays of his ankle, tibia and fibula. He was 18 sent to an alternative learning center. (Id. at 84, ¶ 212.) 19 At sixteen, petitioner was arrested with two friends for malicious mischief. 20 His friends were bailed out quickly, but it took several days for Frank to learn that 21 petitioner was in jail. (Id. at 84, ¶ 213.) 22 At seventeen, petitioner crashed his motorcycle again. He lost 23 consciousness, suffered involuntary convulsions and was taken to the hospital by 24 ambulance. He had x-rays of his skull, face, chest and arm. (Id. at 85, ¶ 215.) 25 A month later, petitioner was arrested for breaking into a drug store. He was 26 held in custody and sent to the California Youth Authority (“CYA”). While 27 petitioner was incarcerated, Frank moved in with his girlfriend and sold his house. 28 He bought petitioner a van to live in after his release. (Id. at 85, ¶¶ 215-16.)

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1 Petitioner was released in April 1980. (Id. at 86, ¶ 217.) He received his driver’s 2 license the same day. (Id. at 87, ¶ 218.) In May 1980, he was cited for possession 3 of marijuana and driving with an open container of alcohol. (Id. at 87, ¶ 218.) In 4 July 1980, he received another traffic citation. (Id. at 87, ¶ 218.) 5 Between April 1980 and February 1981, petitioner dated Heidi Williams. 6 Heidi told petitioner she was pregnant with petitioner’s baby. Petitioner proposed 7 to Heidi, and she accepted. Heidi told petitioner she miscarried. (Id. at 87, ¶ 219.) 8 In December 1980, the police told petitioner that he could no longer keep his dog, 9 Prince, in his van. (Id. at 87, ¶ 221.) Later that month, petitioner was pulled over 10 for a traffic citation. There was a warrant for petitioner in connection with change 11 stolen out of a parked car. The police impounded petitioner’s car, which was his 12 home. It contained his clothing and possessions, as well as a large amount of 13 marijuana that belonged to a drug dealer. (Id. at 88, ¶ 223.) 14 In mid-January 1981, Heidi broke up with petitioner. On January 20, 1981, 15 the DMV revoked petitioner’s license. In late January or early February 1981, 16 petitioner ran his van into an apartment building. Around the same time, Edna 17 Bristol and Kathy Ryan were murdered. (Id. at 89, ¶¶ 225-26.) 18 From April 1980 until his arrest for the underlying crimes in 1981, 19 [Petitioner] was an eighteen-year-old, unemployed, parolee who was 20 homeless, isolated from his family, drug addicted and living in a van. Other than an uncertain relationship with a girlfriend and the 21 continued association with a homeless, drug abusing friend, Francis had little social support or contact. He no longer shared a home with 22 either of his parents. He was not in school. He was not incarcerated. He was not in any of the various forms of treatment that teachers, 23 social workers, and mental health professionals had been urging for him since he was a toddler . . . . Francis was a young man with 24 insufficient social and psychological resources attempting to grapple 25 with unmanageable stressors. 26 (Id. at 86, ¶ 217.) 27 In addition to creating petitioner’s social history, Dr. Clausen also provided 28 a psychological analysis. Dr. Clausen pointed to literature demonstrating that

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1 children raised by a schizophrenic parent tend to suffer from cognitive, behavioral, 2 emotional and social difficulties. (Id. at 93-94, ¶ 235.) In addition, the key task 3 during the first eighteen months of life is to form an attachment to the primary 4 caretaker, but that process cannot take place with a psychotic primary caretaker. 5 (Id. at 94, ¶ 236.) The failure to form a healthy primary attachment results in a 6 consequent failure to develop basic trust. (Id.) Naomi failed to form an attachment 7 bond to petitioner. (Id. at 95-96, ¶¶ 237-40.) 8 From ages two to six, children should develop a sense of autonomy and 9 initiative. Again, Naomi’s psychosis prevented petitioner from developing 10 appropriately, leaving petitioner anxious, depressed, exposed to physical danger, 11 prone to uncontrolled behavior and resorting to self-reliance and pseudo-maturity. 12 (Id. at 96-100, ¶¶ 241-46.) Naomi and Frank’s inability to cope with petitioner’s 13 normal attempts to develop independence and initiative-taking resulted in rage, 14 beatings with a belt, yelling and the forcible administration of enemas. (Id. at 100- 15 01, ¶¶ 247-48.) Naomi engaged in inappropriate play with petitioner, such as by 16 tying him up with rope. She allowed petitioner to take dangerous items to school 17 for play, including screwdrivers, other tools, wood, rope and toy guys. (Id. at 101, 18 ¶¶ 249.) Dr. Clausen described petitioner as “a young child without a healthy self- 19 concept who was not equipped with basic skills in social comprehension and 20 interpersonal communication, and who did not understand the expectations and 21 consequences in his environment.” (Id. at 103, ¶¶ 251.) 22 From ages six to twelve, a child’s primary task is to develop a sense of 23 industry. (Id. at 103, ¶ 252.) For petitioner, these years were filled with tension, 24 chaos, violence, the deterioration of a psychotic mother and an often-absent father. 25 (Id. at 104-07, ¶¶ 254-61.) To make up for his parents’ shortcomings, petitioner 26 was charged with great responsibility, including learning how to turn off the power 27 in case of an emergency at age five and learning how to drive a car at age 10. (Id. 28 at 107, ¶ 262.) Petitioner developed symptoms of anxiety and depression. (Id. at

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1 109, ¶ 264.) Petitioner started staying away from home as much as possible. (Id. 2 at 109, ¶ 265.) During his elementary and pre-teen years, he had a great deal of 3 freedom, no supervision, no chores and no family dinners or obligations. (Id. at 4 109, ¶ 266.) Petitioner began to self-medicate by using marijuana and alcohol on a 5 regular basis in the summer after fifth grade and by getting drunk and high every 6 day by seventh grade. (Id.) 7 From ages twelve to eighteen, a child’s primary task is to develop a sense of 8 personal identity. (Id. at 110, ¶ 267.) Petitioner used drugs regularly as an 9 adolescent, with his parents’ knowledge; they did nothing about it and Naomi 10 recalls that she may have smoked marijuana with her son. (Id. at 110, ¶ 268.) 11 Naomi continued to suffer from schizophrenia and engaged in sexually 12 inappropriate behavior, such as by having a man she met while hospitalized come 13 to her home to have sex. (Id. at 112, ¶ 273.) Petitioner started acting out. He 14 fought and used drugs at school and was arrested for burglary. (Id. at 113, ¶ 274.) 15 Petitioner’s mother left the family without saying goodbye. (Id. at 113, ¶ 275.) 16 With petitioner’s mother gone and his father rarely home, petitioner started using 17 drugs and alcohol more regularly. (Id. at 113, ¶ 276.) The house petitioner and 18 Frank lived in was filthy and in shambles. (Id. at 113-14, ¶ 277.) Petitioner was 19 arrested for breaking into a drug store and then spent ten months in the CYA. (Id. 20 at 114, ¶ 278.) Less than a year after his release, petitioner was arrested for the 21 underlying crimes. (Id.) 22 Petitioner also struggled to distinguish reality from fantasy: 23 The evidence suggests that Francis’s genetic predisposition for 24 impaired reality testing, together with his chronic exposure to his adoptive mother’s psychotic thoughts and chaotic, disorganized 25 behavior, and with his father’s paranoid thinking and minimization of his wife’s symptoms, resulted in a marked inability to accurately 26 perceive his social environment. Francis grew up to be an adolescent who was confused by the signals he received from people around him 27 and, when confused, experienced distortions of reality and, at times, 28 became paranoid.

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1 (Id. at 117-18, ¶ 283.) In addition, petitioner dissociated as a way of coping with 2 the world around him. Francis had a genetic predisposition to dissociative 3 disorder, dissociated at various times during his childhood and experienced 4 incredible stress in the weeks leading up to the crimes. (Id. at 118-19, ¶¶ 284-86; 5 121, ¶ 291.) Petitioner knows about many of the circumstances of the crime, but 6 he cannot actually remember many of them. (Id. at 119-21, ¶¶ 287-89.) 7 Petitioner’s confession, despite the level of detail, contains evidence that petitioner 8 dissociated during the crimes. (Id. at 122, ¶ 292; 123 ¶ 295.) The taped statement 9 also suggests that petitioner’s thought processes were psychotic during the crimes. 10 (Id. at 122, ¶ 294.) Petitioner’s testimony at the penalty phase provides further 11 evidence of dissociation. (Id. at 123-24, ¶ 296.) 12 b. Psychiatrist Dorothy Otnow Lewis 13 Dr. Lewis is a professor of psychiatry at New York University School of 14 Medicine and a clinical professor at the Yale University Child Study Center. 15 (Lewis 8/15/03 Decl. at 1, ¶ 2.) Dr. Lewis evaluated petitioner’s neuropsychiatric, 16 medical and family background. She also considered how those factors may have 17 affected petitioner’s conduct on the night of the crimes, including his capacity to 18 form the specific intent to commit rape and murder. (Id. at 1, ¶ 1.) 19 Dr. Lewis interviewed petitioner for three days in 1990 and two days in 20 2003. She interviewed petitioner’s adoptive mother, Naomi; adoptive father, 21 Frank; biological mother and father; adoptive paternal aunt; and adoptive paternal 22 uncle. She also reviewed the declarations of petitioner’s adoptive and biological 23 relatives, as well as others. (Id. at 2, ¶ 3.) 24 Dr. Lewis provided a detailed social history of petitioner, emphasizing the 25 “biopsychosocial factors” that affected petitioner’s mental state at the time of the 26 crimes. She explained her approach as follows: 27 It is impossible to understand Francis Hernandez’s psychiatric 28 condition throughout childhood and during adolescence, the

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1 development period at which time the offenses were committed, without a clear understanding of the interactions among his genetic 2 vulnerabilities to severe mental illness which he inherited from his biological mother and father, the effects of in utero exposure to 3 alcohol and drugs, repeated head injuries beginning in early childhood, and an upbringing in a psychotic, physically and sexually abusive, and severely 4 neglectful adoptive family. 5 (Id. at 4, ¶ 8.) Dr. Lewis considered the mental health of petitioner’s biological 6 relatives, which included major depression and bipolar mood disorders. (Id. at 6- 7 12, ¶¶ 11-30.) “[O]ne can trace psychiatric illness of psychotic proportions 8 through three generations of Francis Hernandez’s paternal biological relatives as 9 well as three generations of his maternal biological relatives.” (Id. at 12, ¶ 30.) 10 Dr. Lewis also reviewed the psychiatric history of petitioner’s adoptive 11 family. Naomi was raised by a “psychotic,” “violent, [] strict disciplinarian” who 12 “harbored religious delusions (e.g. being raped and having her vagina probed by 13 the Devil).” (Id. at 13, ¶ 33.) Ultimately, Naomi’s mother was diagnosed with 14 chronic schizophrenia, paranoid type. (Id. at 14, ¶ 34.) Dr. Lewis concluded that 15 “Naomi’s childhood experience of being raised by a violent, delusional mother 16 undoubtedly influenced the psychotic manner in which she treated” petitioner. (Id. 17 at 13, ¶ 33.) Naomi’s father was both “a depressed, unfeeling, verbally abusive 18 man—a ‘hermit’ who isolated his wife and children from the rest of society” and 19 simultaneously “a hard drinking man about town who infuriated his wife with his 20 overspending and affairs with women.” (Id. at 13, ¶ 32.) 21 Naomi was always considered different as a child: shy, withdrawn, unable 22 to express herself, slow and possibly retarded, paranoid, confused, disoriented and 23 unable to relate to others. While she was diagnosed with thyroid dysfunction as a 24 teen, Dr. Lewis opines that these symptoms relate to Naomi’s developing 25 psychosis. (Id. at 14, ¶ 36.) Naomi had difficulty coping as an adult. Her family 26 and her in-laws described her as immature, incompetent and unable to cope with 27 the demands of her life. (Id. at 14, ¶ 37.) Naomi attempted suicide when petitioner 28 was 5; she was admitted to a psychiatric hospital for three months and diagnosed

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1 with schizophrenia. She was hospitalized in a psychiatric facility for four months 2 when petitioner was seven and involuntarily committed again when petitioner was 3 eight. Hospital records describe her as “agitated, confused, homicidal and 4 delusional.” (Id. at 15, ¶ 39 (internal quotation marks omitted).) After Naomi’s 5 first hospitalization, Frank removed all of the kitchen knives from the house. (Id. 6 at 15-16, ¶ 39.) When medicated, Naomi could barely function. The house was 7 dark and very disordered, and people described Naomi as weird or zombie-like. 8 (Id. at 17, ¶ 42.) 9 Naomi acted so bizarrely at times that her sister and brother-in-law never left 10 their children alone with Naomi and feared for petitioner’s safety in his mother’s 11 care. (Id. at 17, ¶ 41.) Naomi believed that petitioner was possessed by the devil; 12 she gave him enemas to make him clean and to improve his behavior. (Id. at 18, ¶ 13 45.) Frank would help get control of petitioner and have him bend over the tub 14 with his bottom in the air so that Naomi could insert the enema nozzle up 15 petitioner’s rectum. Naomi would make petitioner hold the liquid as long as he 16 could, up to fifteen minutes, before she would allow him to relieve himself. “This 17 particular manifestation of Naomi’s psychosis is important because of its relevance 18 to aspects of the offense in question (i.e. inserting objects into his victims’ bodily 19 orifices).” (Id.) “Children who have had objects shoved into their rectums 20 repeatedly against their will are at a high risk of perpetrating similar acts on 21 others.” (Id.) 22 Naomi also behaved in sexually inappropriate ways around petitioner, such 23 as wanting to do a striptease in front of petitioner, dressing seductively and 24 bringing home a former fellow patient, with whom she had sexual intercourse 25 while hospitalized, at a time when petitioner may have been there. (Id. at 18, ¶ 46.) 26 Frank believed that Naomi may have molested petitioner, noting that petitioner and 27 his mother shared a bed when petitioner was nine and ten. (Id. at 18-19, ¶ 46.) Dr. 28 Lewis described petitioner’s relationship with his adoptive mother as follows:

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1 The influence of [petitioner’s] mother’s sexually provocative, 2 inappropriate behaviors, anally assaultive acts, and the emotional reaction they engendered in Francis, clearly contributed to the nature of . . . the 3 offenses. Children who have been repeatedly stimulated sexually and/or teased sexually by an adult, especially by a mother, are at a very high risk of 4 acting out sexually and aggressively toward women other than their abusers . . . [O]ne cannot overemphasize the effects on Francis, a 5 psychiatrically vulnerable child to begin with, of being raised by a chronically psychotic, sexually abusive mother. 6 7 (Id. at 19, ¶ 46.) 8 Since leaving petitioner and his father, Naomi has been hospitalized many 9 times, often following suicide attempts. She has spent years in group homes and 10 residential treatment homes, as well as some time homeless on the streets of San 11 Francisco. (Id. at 17, ¶ 43.) 12 Frank, petitioner’s adoptive father, was raised in a violent home in which the 13 father drank to excess. (Id. at 19, ¶ 47.) Relatives and others describe Frank as 14 quiet, withdrawn, socially isolated and oblivious to his surroundings, including 15 Naomi and petitioner’s mental health problems. (Id. at 20, ¶ 49.) Frank also 16 suffered from paranoia. (Id. at 20-22, ¶¶ 50-54.) He had grandiose opinions about 17 petitioner’s capabilities, including buying petitioner a motorbike powerful enough 18 for an adult at age five, allowing petitioner to back a van out of the driveway at age 19 eight, to drive a car at age ten and to drive a motorcycle without a license as a 20 teenager. (Id. at 22, ¶ 55.) Frank also abandoned petitioner. Frank expected 21 petitioner to take care of his mother when he was just five years old. (Id. at 22, 22 ¶ 56.) When Naomi left, Frank left fifteen-year-old petitioner to fend for himself, 23 leaving food in the refrigerator or money on the table. (Id. at 23, ¶ 57.) 24 Dr. Lewis also reviewed petitioner’s medical and psychiatric history. 25 Petitioner experienced multiple events that are known to increase vulnerability to 26 psychiatric illnesses, social and academic maladaption and violence, including his 27 biological mother’s ingestion of alcohol and marijuana. (Id. at 23, ¶ 59.) 28 Petitioner’s hyperactivity, his adoptive mother’s incompetence and his father’s

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1 poor judgment combined to put petitioner at great risk for injuring himself. (Id. at 2 23, ¶ 60.) Petitioner’s injuries included the following: riding a tricycle into an in- 3 ground pool at age two; ingesting a bottle of baby aspirin around the same age; 4 crashing a mini-bike into a wall at age five, requiring stitches to his chin; numerous 5 bike and skateboard accidents during his elementary and middle school years that 6 resulted in head injuries; eleven motorcycle accidents in his teens, including one on 7 which his helmet was dented. (Id. at 24, ¶ 60.) These sorts of head injuries likely 8 exacerbated the psychiatric symptoms of bipolar disorder. (Id. at 24, ¶ 61.) 9 Dr. Lewis attributed petitioner’s early hyperactivity to any of the following: 10 the drugs and alcohol to which petitioner was exposed in utero, early 11 manifestations of mania that petitioner inherited from his episodically psychotic 12 biological parents, the effects of inadequate mothering or a combination of all 13 three. (Id. at 25, ¶ 63.) As a preschooler, petitioner engaged in psychotic behavior, 14 including misperceiving reality, misreading social cues, attacking other children 15 without provocation, bringing dangerous items to school, engaging in dangerous 16 acts, being unable to switch from one activity to another without extreme distress 17 and experiencing episodes of uncontrollable yelling and crying. (Id. at 26-27, ¶¶ 18 67-68.) Dr. Lewis described these behaviors as “characteristic of a traumatized 19 child who is out of touch with reality” and “characteristic of severely 20 psychiatrically ill young children who have witnessed and/or been victims of 21 extreme, bizarre violence.” (Id. at 27, ¶¶ 67-68.) Moreover, these behaviors are 22 also characteristic of dissociative children. (Id. at 27, ¶ 69.) Dr. Lewis explained 23 that “[r]ecurrently traumatized, dissociative children exhibit trancelike states, 24 impaired memory for behaviors and events, and dramatic and instantaneous 25 fluctuations in behavior.” (Id. at 28, ¶ 70.) “They often have aggressive 26 overreactions in response to neutral stimuli because they are misperceived as 27 threats.” (Id.) 28 Due to petitioner’s bizarre behavior, the adoption agency referred five-year-

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1 old petitioner for a psychological evaluation. Joseph Sawaya observed that 2 petitioner had endless energy; was restless and demanding; acted out, suffered 3 from a short attention span; performed poorly on a test of central nervous system 4 functioning, indicating possible brain impairment; was destructive and fantasized 5 profusely. (Id. at 28-29, ¶ 72.) These observations and test results show that 6 petitioner was psychotic and that “he was a danger to himself and others and 7 desperately needed removal from his home and psychiatric hospitalization. Instead 8 of hospitalizing and treating this frantic, very disturbed, five year old, however, 9 Francis was allowed to remain in his psychotic adoptive home.” (Id. at 29, ¶ 73.) 10 The physical condition of petitioner’s home added to petitioner’s problems. 11 Dr. Lewis testified that “[n]o child raised in such an environment could be 12 expected to develop normally. He or she would have no models for normal social 13 interaction and no experiences of the kind of ongoing nurturing and cognitive 14 stimulation that every human being requires for normal adaptation.” (Id. at 30, ¶ 15 76.) 16 Petitioner’s struggles continued into adolescence. (Id. at 31, ¶ 78.) 17 Petitioner was paranoid and experienced rapid, wild mood swings. (Id. at 32, 18 ¶¶ 70, 78-79.) He also experienced trance-like states, unrelated to the use of drugs 19 or alcohol. (Id. at 32-33, ¶ 80.) Petitioner’s rapid mood swings, trance-like states 20 and strikingly different use of penmanship and spelling depending on mood 21 suggest pathological dissociation, “characteristic of people who, as children, 22 experienced severe[,] ongoing, intolerable abuse, usually of sexual as well as 23 physical and emotional in nature.” (Id. at 33, ¶ 81.) Dr. Lewis concluded that 24 petitioner’s history with sudden self-injury, property damage, impaired memory 25 and trance-like episodes related to the murder of Kathy Ryan. Petitioner intended 26 to see her later in the week, and nothing indicated he intended to kill her on the 27 night of the crime. The murder does not seem premeditated, but, rather, suggests 28 that petitioner was in a dissociative state. (Id. at 33-34, ¶ 82.)

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1 Dr. Lewis also diagnoses petitioner with bipolar mood disorder. (Id. at 34- 2 36, ¶ 84; see also 2 Lewis Depo. at 278 (“[W]hether you wish to call it the manic 3 phase of bipolar mood disorder or the manic phase of Schizoaffective, 4 schizophrenic disorder . . . he was severely psychiatrically ill at the time . . . and 5 the psychotic nature of the illness was manifested in childhood, which tells you 6 about the severity of the disorder.”).) 7 No single factor accounts for petitioner’s behavior at the time of the crimes. 8 (Lewis 8/15/03 Decl. at 36, ¶ 85.) A combination of several factors worked 9 together, including that petitioner suffers from bipolar mood disorder and appeared 10 to be in a manic or hypomanic state at the time of the offenses; petitioner’s struggle 11 with dissociative symptoms, which include violent responses to misperceptions and 12 impaired or distorted memory; multiple head injuries; and being raised by a 13 psychotic mother and a paranoid father prone to physical aggression in an abusive 14 home. (Id. at 36-37, ¶ 85.) Moreover, 15 16 Francis Hernandez had [a] constellation . . . of intrinsic neuropsychiatric vulnerabilities (i.e.[,] bipolar mood disorder, 17 pathological dissociation, history of numerous head injuries) and extreme intra-family stressors (i.e.[,] an upbringing in a psychotic, 18 physically and sexually abusive, and severely neglectful household) which engendered his extreme[,] uncontrollable[,] violent acts. The 19 knowledge of these biopsychosocial vulnerabilities and the appreciation of their role in Francis Hernandez’s offenses are vital to 20 understanding his compromised mental functioning on the nights of the murder in question. 21 22 (Id. at 37, ¶ 86.) In sum, petitioner’s “capacity to premeditate and deliberate[ and] 23 his capacity to form the specific intent to rape and kill, was substantially 24 impaired.” (Id. at 37, ¶ 87.) 25 Moreover, Dr. Lewis opined that testimony about petitioner’s mental health 26 could have provided helpful evidence at the penalty phase. The difference between 27 the psychotic household in which petitioner was raised and the “minimally 28 nurturing, stimulating and protective environment required for normal

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1 development and adaptation would have been powerful information to present 2 during the mitigation phase of Francis’s trial.” (Id. at 30, ¶ 77.) Moreover, “[i]t is 3 hard to imagine how a more genetically resilient child could have weathered the 4 family environment and adapted appropriately to society, much less a child with 5 Francis’s inherent vulnerabilities to mental illness.” (Id. at 31, ¶ 77; see also 2 6 Lewis Depo. at 283 (“[W]hen you get a vulnerable child who is then adopted into 7 or raised in a psychotic environment in which you don’t know what your mother or 8 your father will be like and in which there are such stressors . . . then you are 9 creating an aberrant human being, a person who cannot function the way other 10 people do.”).) 11 c. Criminologist Sheila Balkan 12 Criminologist Sheila Balkan obtained her doctorate in sociology, with a 13 specialization in criminology, deviant behavior and mental health. (Balkan 8/15/03 14 Decl. at 1, ¶ 2.) The stated purpose of her declaration is to provide a social history 15 of petitioner and identify the issues in his life and background that help explain the 16 crime. (Id. at 1-2, ¶ 4.) Dr. Balkan reviewed the trial testimony of Drs. Rayyes, 17 Girsh and Maloney. (Id. at 2, ¶ 6.) She also reviewed the findings of Dr. Lewis, 18 including Dr. Lewis’s 1990 assessment of petitioner and her 2003 declaration. (Id. 19 at 2, ¶ 4.) Dr. Balkan conducted interviews of petitioner, his former girlfriend, his 20 childhood friend Morris Silverstein and the mother of childhood friend Douglas 21 “Eddie” Duffey. (Id. at 4, ¶ 9.) Dr. Balkan also reviewed declarations, notes of 22 interviews or both for many individuals, including petitioner’s biological parents 23 and other biological relatives, his adoptive parents, other members of his adoptive 24 family, petitioner’s preschool teacher and the parents of petitioner’s former 25 girlfriend, among others. (Id.) Dr. Balkan reviewed extensive records, including 26 petitioner’s adoption, school, CYA, prison, juvenile criminal and probation 27 records, as well as earlier psychological assessments of petitioner. (Id. at 4, ¶ 10.) 28 Dr. Balkan’s declaration provided a social history of petitioner’s life, very

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1 similar to that provided by Drs. Clausen and Lewis. (See id. at 5-77.) She added 2 that the those who knew petitioner found it hard to believe that he committed the 3 crimes because they were so out of character. (Id. at 78-79, ¶¶ 262-63.) 4 Dr. Balkan criticized the trial testimony of Drs. Rayyes, Girsh and Maloney, 5 stating that “none of these experts were given adequate information to form 6 opinions that would have be[en] helpful to the jury’s understanding.” (Id. at 2-3, 7 ¶¶ 6-8.) Ultimately, she concurred in Dr. Lewis’s diagnosis of petitioner with 8 psychosis, bipolar disorder and dissociation. (Id. at 2, ¶ 5; 77-78, ¶¶ 260-261.) 9 Dr. Balkan concluded: 10 While the role of each of the factors that Dr. Lewis identifies is 11 difficult to quantify, it seems safe to say that if Francis’ genetic susceptibility to mental illness or the high degree of dysfunction and 12 neglect in the home in which he was raised were removed, the offenses would never have occurred. Evidence of this can be seen in 13 the 22 years that Francis has conformed himself to prison life. He is a model prisoner and, although he states that he has become mad on 14 occasion, he has always controlled his temper. One of the sad facts of Francis’ life is that he has been on his own since as early as he could 15 walk and talk. Lacking any supervision or structure, Francis’ yearning for security can be seen in the reports of the many adults that 16 Francis reached out to. With Francis’ impaired understanding of the social interactions and the lack of any involvement from either parent, 17 it is only with having been incarcerated that Francis has been given the benefit of a set of comprehensible social rules within which he can 18 form expectations and conform his conduct. 19 (Id. at 80, ¶ 265.) 20 d. Psychologist Daniel Martell 21 Dr. Martell is a clinical psychologist, retained by respondent as a “forensic 22 neuropsychological expert.” (Martell Decl. at 1, ¶ 4.) He reviewed the California 23 Supreme Court opinion, trial counsel’s file, various lay declarations, the penalty 24 phase transcript, the declarations of Drs. Clausen, Balkan and Lewis, and the 25 examination notes of Drs. Lewis and Clausen. (Id. at 1-2, ¶ 5.) Dr. Martell 26 examined petitioner for a full day in 2003. (Id. at 2, ¶ 6.) 27 Dr. Martell administered various tests to petitioner. (Id. at 2, ¶ 7.) Petitioner 28 provided a personal history, which included “reports of significant mental illness in

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1 his biological and adoptive families; lack of parental supervision; extensive drug 2 and alcohol abuse beginning at an early age (5th grade); early onset of conduct 3 disorder; and recurrent criminal and antisocial behavior.” (Id. at 2, ¶ 8.) Dr. 4 Martell offered the following summary of his evaluation of petitioner: 5 6 [Petitioner’s] thoughts were expressed in a logical, coherent and goal directed fashion, with no evidence of formal thought disorder. He was 7 in good contact with reality, and reported no history of psychotic symptoms (e.g., hallucinations or delusions) except during periods 8 w[h]ere he has been intoxicated with drugs/alcohol. Emotionally, his observable affect was stable and mildly blunted. There was no 9 evidence of symptoms of any major affective disorder (e.g., depression or mania) and he denied any affective symptomatology 10 with the exception of periods when he has been intoxicated with drugs and/or alcohol. His underlying mood was euthymic. He denied any 11 history of dissociative symptoms, except during periods when he was intoxicated with drugs and/or alcohol. 12 13 (Id. at 2-3, ¶ 8.) 14 Based on his evaluation of petitioner, Dr. Martell described the “claim that 15 Mr. Hernandez suffers from psychosis, bipolar disorder, brain impairment, and/or 16 dissociation” as “unsupported and misleading.” (Id. at 4, ¶ 13.) Dr. Martell 17 explained that “examining doctors have not found [petitioner] to be so impaired,” 18 citing to the evaluations by Joseph Sawaya and Drs. Prentiss, Minton, Davis and 19 Maloney. On cross-examination, however, Dr. Martell admitted that none of those 20 individuals had access to records concerning petitioner’s biological parents or to 21 declarations from petitioner’s biological and adopted families, preschool teacher, 22 lifelong friends or ex-girlfriend’s parents. (Martell Depo. at 131-134.) Dr. Martell 23 concluded that his examination of petitioner, “which failed to indicate any major 24 mental disorder or significant brain impairment other than Antisocial Personality 25 Disorder” was consistent with the historical evaluations of petitioner. (Martell 26 Decl. at 5, ¶ 17.) Moreover, Dr. Martell opined that petitioner’s “extensive history 27 of alcohol and substance intoxication appears to completely account for and 28 underlie the symptoms described by Dr. Lewis and attributed to Bipolar disorder,

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1 psychosis, or dissociation.” (Id.) Dr. Martell testified that petitioner’s troublesome 2 childhood behaviors “are well captured by the diagnosis of Conduct Disorder, 3 Childhood-Onset Type.” (Id.) Moreover, petitioner’s genetic predisposition to 4 mental illness “does not mean that he actually manifests any mental disorder,” as 5 “it is still most likely that the offspring will not manifest the disorder.” (Id. at 6, 6 ¶ 18.) Dr. Martell added that petitioner may meet the diagnostic criteria for Sexual 7 Sadism. (Id. at 6, ¶ 19.) Finally, Dr. Martell concluded that “other than being in a 8 state of intoxication, there was no major mental disorder operating to ‘substantially 9 impair’ Mr. Hernandez’s thinking or behavior at the time of the crime.” (Id. at 7, 10 ¶ 20.) 11 There are serious reasons to doubt the credibility of Dr. Martell’s testimony. 12 Petitioner’s experts have questioned Dr. Martell’s methodology. For instance, 13 Dr. Lewis criticized Dr. Martell for “tak[ing] issue with the fact that Francis has 14 close relatives who suffer from severe mood disorders, because they have not been 15 diagnosed at a hospital,” but notes that “any experienced clinician would recognize 16 the kinds of signs, symptoms and behaviors . . . [as] characteristic of bipolar 17 (manic-depressive) or schizoaffective disorders. (Lewis 5/8/04 Decl. at 4-5, ¶ 7.) 18 Dr. Lewis also commented on Dr. Martell’s testimony that petitioner had a thirty 19 percent risk of having bipolar disorder, when a prominent study by the National 20 Child Institute concluded that children with two bipolar parents and extended 21 families with mood disorders had nearly a one hundred percent risk of developing 22 a similar disorder. (Id. at 5-6, ¶¶ 8-11.) Dr. Lewis also scrutinized Dr. Martell’s 23 failure to note the increased risk of mental illness petitioner suffered due to in utero 24 exposure to alcohol and drugs, as well as head injuries throughout childhood and 25 adolescence. (Id. at 7, ¶ 14.) 26 Although he offered opinions about petitioner’s childhood and possible 27 diagnosis with child-onset conduct disorder, Dr. Martell admitted that child and 28 adolescent psychology were not his major interest, that he had not treated any child

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1 or adolescent for at least ten years, that he had not studied or written in the area for 2 ten to fifteen years and that he had never sought board certification in that area. 3 (Id. at 281; see also Lewis 5/8/04 Decl. 8-9, ¶¶ 20-21.) Dr. Martell did not note the 4 clinical significance of petitioner’s absence of childhood memories, which, 5 according to Dr. Lewis, is “characteristic of severely abused, dissociative children, 6 adolescents and adults.” (Lewis 5/8/04 Decl. at 9, ¶ 23.) Dr. Lewis rejected Dr. 7 Martell’s diagnosis of petitioner with conduct disorder, noting that he dismissed 8 the indicators of petitioner’s early severe psychopathology observed by petitioner’s 9 preschool teacher and others. (Id. at 10, ¶ 26.) Dr. Martell failed to rule out 10 organic, bipolar, schizophrenic, dissociative and other psychiatric disorders before 11 diagnosing petitioner with conduct disorder. (Id. at 11, ¶ 28.) 12 Dr. Martell testified that the administration of enemas to petitioner was not 13 sexual abuse. (Martell Depo. at 432-33.) Dr. Lewis strongly disapproved of this 14 conclusion: 15 16 Another sign of Dr. Martell’s lack of clinical experience with children and adolescents is his assertion that being given ritual enemas 17 twice a week throughout childhood by a psychotic mother is not indicative of sexual abuse. Repeatedly holding a child down and 18 inserting objects into that child’s rectum is a form of sodomy. Whether or not the perpetrator intends to sexually abuse the child or 19 not is irrelevant. The acts are experienced by the child as repeated anal sexual assaults. Any minimally trained child psychiatrist, child- 20 psychologist or pediatrician would recognize the sexually abusive nature of the enemas to which Francis was subjected for years. 21 22 (Lewis 5/8/04 Decl. at 11, ¶ 30.) In addition, Dr. Lewis criticized Dr. Martell’s 23 evaluation of petitioner with respect to physical abuse. Dr. Lewis observed that 24 when petitioner began to report instances of physical abuse that would lead to 25 dissociation, Dr. Martell cut the answer short or ignored petitioner’s answer. (Id. 26 at 11-12, ¶ 31.) For instance, petitioner reported to Dr. Martell that once his father 27 beat him so badly that he broke his thumbs, but Dr. Martell did not ask for 28 elaboration. Instead, he asked if petitioner’s parents got along. Later, Dr. Martell

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1 asked petitioner if he was ever abused, but petitioner had already reported being 2 beaten frequently with a strap on his bare buttocks and that he once broke his 3 thumbs at his father’s hands. (Id. at 12, ¶¶ 31-32.) According to Dr. Lewis, a 4 clinician trained in child psychiatry, psychology or pediatrics “would know that 5 dissociation occurs to enable a child to forget abuse and its sequela[]. Hence, one 6 must rely on scars, records and the accounts of observers to obtain an accurate 7 picture of the abused individual’s past.” (Id. at 12, ¶ 33.) 8 Dr. Lewis noted that in evaluating petitioner, Dr. Martell elicited important 9 indicators of dissociation, but he either ignored or failed to recognize them. (Id. at 10 13, ¶ 35.) Dr. Lewis listed many such examples in her declaration. (Id. at 13-15, 11 ¶¶ 36-41.) Similarly, Dr. Lewis catalogued the many instances in which petitioner 12 provided Dr. Martell with information suggestive of bipolar disorder, which 13 Dr. Martell either did not explore or address. (Id. at 16-17, 18, ¶¶ 43-46, 48.) 14 Dr. Lewis concluded: 15 16 Francis Hernandez provides Dr. Martell with ample evidence of severe physical and sexual abuse, of severe dissociative 17 psychopathology, and manic or hypomanic states. That Dr. Martell fails to appreciate the significance of the signs and symptoms and 18 behaviors he elicited on interview is puzzling. In all likelihood, his lack of clinical experience with children and adolescents explains his 19 inability to recognize the significance of what he is told. Similarly, probably for the same reasons, he misinterprets the copious evidence 20 of severe psychopathology in school records, the early psychological testing, and the declarations of family and friends. Dr. Martell elicited 21 valuable information. One would be reluctant to believe that he deliberately ignored or distorted what he saw. 22 23 (Id. at 18, ¶ 49.) 24 In addition, Dr. Lewis explained that to make a valid diagnosis, the examiner 25 must consider evidence of the patient’s early behavioral, psychological, 26 educational and medical history. The examiner must take the observations of 27 family and friends seriously and must be able to recognize the early signs and 28 symptoms of childhood and adolescent mental illness. She faulted Dr. Martell for

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1 his failure to do these things. (Id. at 19, ¶ 50.) Dr. Lewis also observed that the 2 “neuropsychological and personality testing on which Dr. Martell relies are not 3 adequate diagnostic tools for recognizing the existence of severe psychopathology” 4 in a capital defendant. (Id. at 19, ¶ 51.) 5 Dr. Lewis also rejected Dr. Martell’s diagnosis of petitioner with antisocial 6 personality disorder, given the evidence of bipolar disorder and significant 7 dissociative psychopathology. (Id. at 19, ¶ 52; see also Gur 2/8/05 Decl. at 39 8 (noting that during the developmental and formative years, the behavior of 9 individuals who have a genetic vulnerability to a psychiatric disorder and who 10 acquire a head injury is often confused with and misinterpreted as conduct 11 disorder).) In fact, Dr. Lewis concluded her 2004 declaration with the following 12 statements: 13 14 Finally, a word should be said about Francis Hernandez’s genuine sense of guilt. In my relatively long career studying violence, 15 I have never heard any other condemned offender articulate, not only the magnitude of his offense, but also the depth of his remorse as does 16 Francis Hernandez. Francis says it far better than I could paraphrase it. Francis asks himself, “Am I sorry it happened? Hell yes.” 17 Dr. Martell then asks simply, “Why?” Francis replies: “Because I actually—because apparently, without knowing what I was doing or 18 not knowing why, apparently killed a friend. I also killed another girl, Edna—I’m sorry for myself because it fucked up the rest of my life. 19 But it cut short her life, cut short their lives. Fucked up their families, fucked up my family. Had all kinds of repercussions. Besides being 20 wrong, besides being something . . . that I never thought I would do, yeah, all kinds of things. Why do I feel sorry? There’s nothing I can 21 do about it. 22 He continues, “What can I do? Even to say I’m sorry to the family? I feel sorry for the family. I am sorry. I’m not adverse to 23 saying it, but I don’t think I should, because I don’t think it would do any good.” The following words bespeak a kind of compassion that is 24 rarely observed in the violent offender population. Francis has, clearly, thought as much about the bereaved families of his victims as 25 he has about himself and what the effect of an apology might be. He goes on: “I think it would probably be worse for them than for 26 me—to hear from me, ‘I’m Sorry’—You remind them, it’s like a slap in the face. He’s still alive, I’m sitting here [while] their child’s dead. 27 You can never replace a child.” These are not the words of a sociopath. 28

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1 (Lewis 5/8/04 Decl. at 21-22, ¶¶ 57-58.) 2 Additionally, Dr. Lewis took issue with Dr. Martell’s testimony about 3 recessive genes; about his opinion that there is one “gene” for bipolar disorder, 4 when it is thought to result from the interactions of multiple genes coupled with 5 environmental factors; his failure to appreciate the effects of an adverse 6 environment on the manifestation of mental illness in petitioner; his testimony that 7 abused children have a four percent chance of developing aggressive tendencies 8 when numerous studies show that neuropsychiatrically vulnerable children are at a 9 high risk of developing abusive behaviors if they have been abused or raised in 10 violent homes; and his unsupported suggestion that petitioner may suffer from 11 sexual sadism. (Id. at 7, ¶ 15; 8, ¶¶ 16-17; 8, ¶ 19; 19-20, ¶¶ 53-54.) 12 Dr. Ruben Gur, a psychologist retained by petitioner, also questioned 13 Dr. Martell’s methodology. Dr. Gur summed up his criticism this way: 14 Dr. Martell “reaches his conclusions without properly pursuing several 15 conspicuous leads to the contrary disclosed by the results of the tests he gave, and 16 without integrating many of the details of Mr. Hernandez’s history contained in the 17 lay witness declarations with the results of his testing.” (Gur 6/8/04 Decl. at 7-8, 18 ¶ 13.) Moreover, “[t]here is a discrepancy between data obtained in the interview 19 and testing and contained in the social history documents on the one hand, and the 20 direction of the interview and interpretation relating to the issue of memory and 21 executive functions on the other.” (Id. at 8, ¶ 14.) 22 Dr. Gur reviewed Dr. Martell’s tape-recorded examination of petitioner. Dr. 23 Gur testified: 24 I was, frankly, quite perturbed by the whole interview and the 25 tone of it starting from the get go. It was not a clinical interview. It did not follow any of the standards that I learned about how to 26 conduct a clinical interview. It was almost designed to hide any sign of psychopathology, which is the opposite of the purpose of a clinical 27 interview . . . . He goes on to present it as almost a legal interrogation rather than a clinical interview, including this strange statement that 28 has a veiled—thinly veiled threat, where he says something to the effect that, if you are straight with me, I’ll be straight with you.

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1 It’s just, I have never heard anybody, any clinician, in training or after training or in teaching, who would make any statement like 2 that when trying to interview someone in a clinical—in an effort to arrive at a clinical diagnosis. Granted that he is not there to treat him, 3 he still wants to probe into areas that are very difficult for most people to talk about and are especially difficult to talk about for people who 4 have deficits or dysfunction in that area. Because if you suffer from a mental illness, one thing that is very clear to you in your own mind is 5 that there are lots of things that go on in your mind that are strange; that if other people knew about them, they will freak out. They will 6 consider them scary or appalling. And so it takes a lot of sensitivity and support to allow someone to talk about those things. 7 Anybody who has clinical experience interviewing folks with 8 brain damage, or any major psychiatric disorder, knows that one major feature of brain damage and psychiatric disorder is denial of 9 symptoms . . . And if you ask them, is there anything the matter with you? They’ll say no, I’m fine. Everything is cool. Everything is 10 great. Then, it takes a while and probing and encouragement, and then they’ll start revealing some strange things about themselves. 11 So I was impressed with Martel[l]’s interviewing style that was 12 almost designed to make Mr. Hernandez look healthy and go with the natural tendency of people with severe mental illness to deny that 13 there is anything wrong with them or at least to have difficulties exposing things about them that are scary and socially unacceptable. 14 15 (Gur Depo. at 430-32.) Dr. Gur also noted many instances where petitioner 16 indicated a problem that Dr. Martell ignored or failed to appreciate as significant. 17 (Id. at 432-33.) Dr. Gur explained that “[w]henever Mr. Hernandez came up with a 18 statement that could imply some emotional pain or some insult to him, instead of 19 encourag[ing] . . . him to go in that direction, [Dr. Martell] would then either skip 20 to the next question or ask a question that implied he is not really interested in that 21 stuff or that it’s not important. So it almost looked as if [Dr. Martell] reached his 22 conclusion before he started the interview and discouraged any information that 23 will counter his conclusion from emerging.” (Id. at 434.) 24 Specifically, Dr. Gur testified that the record includes many indicators that 25 petitioner is neuropsychiatrically impaired, despite Dr. Martell’s conclusion that 26 petitioner had a mild to moderate impairment in verbal learning. (Gur 6/8/04 Decl. 27 at 4, ¶ 9.) Dr. Gur noted that the petitioner’s “environment was replete with child 28 abuse and neglect, psychological and physical, of the kind that can lead to brain

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1 damage, PTSD or dissociative disorders.” (Id. at 5, ¶ 9.) Also, the “existence of 2 such disorders is substantiated by poor impulse control and rather rock-bottom 3 scholastic performance starting at first grade, despite IQ scores falling ‘within the 4 normal to superior range,’ as noted by Dr. Martell.” (Id.) Dr. Gur explained that 5 petitioner’s head injuries, along with extensive substance abuse starting at an early 6 age, could have disrupted brain development and function. (Id. at 5-6, ¶ 10.) 7 Dr. Gur noted that although petitioner reported amnesia about the crime and 8 his early childhood and adolescent years, Dr. Martell failed to conduct further 9 testing related to petitioner’s memory. (Id. at 8, ¶ 14.) The administration of the 10 California Verbal Learning Test (“CVLT”) suggested impairment to petitioner’s 11 frontal lobe, relevant to impulse control, but Dr. Martell failed to conduct further 12 testing to determine the effects of head injuries and substance abuse on the same 13 area of the brain. (Id. at 8, ¶ 15.) Dr. Martell also relied on petitioner’s denial of 14 any learning disabilities, when his academic performance starting in first grade, 15 belied that assertion, particularly in light of normal IQ scores. (Id. at 9, ¶ 16.) 16 Dr. Martell depended on various tests performed by Dr. Prentiss in 1979 to support 17 his conclusion that petitioner did not have brain damage, but the tests on which 18 Dr. Prentiss relied have been outmoded since 1974. Dr. Gur testified that 19 Dr. Martell’s conclusions about brain damage are, therefore, unreliable. (Id. at 9, 20 ¶ 17.) Dr. Gur also faulted Dr. Martell for failing to consider evidence that brain 21 maturation is incomplete at age eighteen, and in petitioner’s case, that substance 22 abuse may have delayed this process further. (Id. at 9-10, ¶ 17.) Dr. Gur 23 concluded: 24 Neuropsychological testing, by itself, cannot show whether a 25 person has bipolar disorder. Neither can neuropsychological testing show the presence or absence of brain trauma. Like a thermometer in 26 general medicine, it is a useful tool but does not provide a diagnosis. Neuropsychological testing needs to be done in the context of 27 medical, neuropsychiatric and neuroradiologic assessment and a complete history of the patient. Dr. Martell refers only in passing to a 28 history of “significant mental illness in his biological and adoptive

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1 families, lack of parental supervision, extensive drug and alcohol abuse beginning at an early age,” and head trauma, but his findings do 2 not take into account the extensive medical and social history information regarding Mr. Hernandez and his biological and adoptive 3 families contained in the declaration of Drs. Balkan, Lewis and Clausen. 4 To summarize, although neuropsychological evaluation is a 5 major part of diagnostic workup for any major psychiatric disorder, indeed for any disorder of complex behavior where brain dysfunction 6 needs to be considered, it is not intended to be used as the sole procedure for arriving at a neuropsychiatric diagnosis, or ruling it out. 7 The results of history and tests already available to Dr. Martell simply indicate the likelihood of brain dysfunction, and the interview and 8 tests . . . conducted by him further support this diagnosis. Follow-up testing is indicated and a more focused evaluation, targeting frontal 9 lobe functioning. There is also enough evidence implicating brain dysfunction to suggest the utility of further studies with structural and 10 functional imaging. 11 (Id. at 10-11, ¶¶ 18-19 (citations omitted).) 12 Dr. Gur also noted that Dr. Martell’s regular work as a testifying expert, 13 rather than a clinician, made him an ineffective expert: 14 I would be concerned about someone who spends all of their 15 time testifying, especially if they just testify for one side, without having clinical experience with people who come for help. It would 16 distort their ability to understand the effects of brain dysfunction, since they always see through a prism of the medical-legal context. I 17 would have a problem with someone like that. I don’t think it gives them an advantage. I think, in some ways, it makes them less able to 18 understand how the brain impacts behavior in general and when it comes to specific patients. 19 20 (Gur Depo at 482-83.) 21 Dr. Martell holds himself out as an expert in forensic neuropsychology. 22 (Martell Depo. at 259.) Although eligible for at least a decade prior to the 23 deposition, he had not sought board certification5 in neuropsychology. (Id. at 277.) 24 Dr. Martell testified that he “might” apply for board certification in 25 neuropsychology, depending on “[t]ime and energy,” as certification in 26 27 5 It is unclear which board the parties mean when discussing board certification. (See, e.g., Martell Depo at 257.) There appear to be many different kinds of boards, some of which are 28 considered vanity boards. Both parties seem to agree, however that board certification has some value. (Martell Depo. at 281.)

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1 neuropsychology “would be nice.” (Id. at 279, 281.) Dr. Martell did obtain board 2 certification in forensic psychology in 2002. (Id. at 260.) When asked about how 3 many failed attempts he had made to become board certified in forensic 4 psychology, Dr. Martell refused to answer, citing the “peer review privilege” and 5 noting that he threw out all documentation related to his prior failed attempts to 6 obtain board certification. (Id. at 256, 259, 260, 263, 264, 265-68, 269-70, 271, 7 278-79; 281.) The peer review privilege does not apply to these proceedings. See, 8 e.g., Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005) (declining to 9 recognize the peer review privilege in federal court); Fed. R. Evid 1101(3). 10 Dr. Martell testified that he threw out the documents in 2000 or 2001 because they 11 were “old” and “irrelevant,” despite being asked to produce them in 1999 when he 12 was working on another death penalty case. (Martell Depo. at 267-268, 271.) 13 Accordingly, the Court gives little weight to Dr. Martell’s testimony.6 14 15 6 Two incidents may give additional reason to doubt Dr. Martell’s credibility. While retained as an expert for the prosecution in the Ted Kaczynski case, Dr. Martell interviewed 16 Dr. Gur, retained by Kaczynski, by telephone. (Id. at 305.) Dr. Martell recorded the conversation without informing Dr. Gur. (Id. at 305-06.) Dr. Park Diet., who was present during 17 the recorded phone call, told Dr. Martell that he should not be recording the call, but Dr. Martell persisted. (Id. at 328, 336.) Upon learning that the conversation had been recorded, the 18 prosecutor asked for a copy of the tape, which Dr. Martell provided. (Id. at 338.) Dr. Gur also requested a copy of the tape, which Dr. Martell did not provide, though Dr. Martell ultimately 19 apologized for what happened. (Id. at 339-340, 344.) Dr. Martell described the incident as creating a “black mark that would be an obstacle to [his] work in the future” and that he thought 20 it was “unfair.” (Id. at 375.) Dr. Martell also was retained by the federal government in the capital prosecution of 21 Everett Spivey in New Mexico. (Id. at 346-47.) The prosecution retained Dr. Martell to examine the defendant. (Id. at 347.) The judge ordered Dr. Martell to file his report under seal 22 and to not discuss his findings or opinions with the prosecution team. (Id. at 348.) The defense filed a motion to remove the prosecutor, contending that the court’s order had been violated. (Id. 23 at 348-49.) In opposing the motion, the prosecutor prepared an affidavit that Dr. Martell reviewed, edited and signed. (Id. at 351.) The affidavit stated that Dr. Martell did not disclose 24 any statements or information related to his examination of Spivey. (Id. at 353.) The court denied the defense motion. (Id. at 354.) After jury selection began, the U.S. Attorney’s Office 25 conducted an internal investigation into Dr. Martell’s declaration. (Id. at 359.) Following that investigation, the U.S. Attorney wrote to the Department of Justice, stating that Dr. Martell’s 26 affidavit was incomplete and that the court’s order was violated. (Id. at 370.) The prosecutor initiated plea negotiations that resulted in a dismissal of the death penalty against Spivey. (Id. at 27 370-71.) Subsequently, Dr. Martell was removed from a number of federal murder prosecution cases nationally. (Id. at 372.) 28 What seems to have happened is that one of the prosecutors hosted a dinner party, to which she invited the prosecution team and Dr. Martell. At that party, Dr. Martell posed a

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1 e. Psychologist Charles Sanislow 2 In rebuttal, petitioner offered two additional experts: clinical psychologist 3 Charles Sanislow and neuropsychologist Ruben Gur. 4 Dr. Sanislow is an assistant psychiatry professor at Yale Medical School and 5 a clinical psychologist. (Sanislow Decl. at 1, ¶ 1.) Dr. Sanislow reviewed 6 Dr. Martell’s declaration, as well as raw test data and other materials relating to the 7 MMPI-2 administered to petitioner by Dr. Martell. Dr. Sanislow also reviewed Dr. 8 Maloney’s 1982 report and the results of the 1981 MMPI given to petitioner. 9 Finally, Dr. Sanislow reviewed Dr. Lewis’s 2003 declaration. (Id. at 4-5, ¶ 7.) 10 Dr. Sanislow testified that a profile derived from the MMPI or MMPI-2 is a 11 starting point for making a psychiatric diagnosis. (Id. at 10, ¶ 19.) The “gold 12 standard” in psychiatric diagnosis is called LEAD, which stands for “information 13 that is collected over a Longitudinal period by Experts who come to a consensus 14 based on All Data available to them.” (Id. at 10-11, ¶ 20.) A clinician must gather 15 as much information as possible from multiple sources in order to assess the 16 reliability of the information. The more sources from whom a clinician gathers 17 information, the more confident that clinician can be in the final diagnosis. (Id. at 18 11, ¶ 20.) Therefore, a clinician should not only interview the patient thoroughly 19 and conduct appropriate psychological testing, but the clinician also should review 20 all available documentation about the individual’s background. (Id. at 11, ¶ 21.) 21 22 hypothetical, asking whether a comment Spivey made about the prosecutors would be protected by the court’s order. The prosecutors advised Dr. Martell that the court’s order would not apply. 23 Knowing that the prosecutors were frightened of Spivey and feared for their physical safety, Dr. Martell told them “you don’t need to worry about [Spivey]. He feels sorry for you. He 24 thinks you’re a tortured soul.” (Id. at 467.) Spivey made the comments to Dr. Martell after the mental health examination, while the two men waited to be let out of the examination area. (Id. 25 at 467-468.) Dr. Martell asked the prosecutors who drafted his declaration if the statements Spivey made should be put in the declaration but was advised that they fell outside the court’s 26 order. (Id. at 465, 479-80.) Dr. Martell testified that Spivey’s statements about the prosecutor “had no relevance to [his] opinions or findings in the matter.” (Id. at 468.) Dr. Martell believed 27 that the prosecutors initially denied that Dr. Martell told them about Spivey’s statements but ultimately “scuttled the case and blamed it on” him. (Id. at 472.) Before Dr. Martell’s 28 deposition, respondent apparently did not know about this incident. (Id. at 368-369.)

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1 With respect to the 1981 MMPI results and Dr. Maloney’s related report, Dr. 2 Sanislow concluded: “The elevations noted by Dr. Maloney are indicative of 3 confusion, disorientation, extreme stress and distortions of reality, and are 4 consistent with the psychotic or dissociative thinking that can occur in a bipolar 5 person and noted by Dr. Lewis.” (Id. at 15, ¶ 27.) 6 Dr. Sanislow noted that the 2003 MMPI-2 administered by Dr. Martell 7 revealed an elevation on Scale 4 but was otherwise within normal limits. The 8 results were insufficient alone to rule out bipolar disorder, as the MMPI is less 9 likely to reflect the relevant symptoms if the person is not experiencing a manic or 10 depressed episode at the time of testing or if the subject has been stabilized for a 11 long time prior to testing. Also, when an individual has been institutionalized for 12 an extended period, the structured environment may help contain symptoms so 13 well that the individual would appear asymptomatic. (Id. at 15-16, ¶ 28.) 14 Moreover, Dr. Sanislow testified that the different results on the 2003 MMPI-2 as 15 compared with the 1981 MMPI do not rule out the existence of a psychological 16 disorder at the time of the murders. (Id. at 16, ¶ 30.) The results from petitioner’s 17 1981 MMPI undermine Dr. Martell’s conclusion that petitioner was not bipolar or 18 in a dissociative state at the time of the crimes, particularly because Dr. Martell 19 based his conclusion on the results of the MMPI-2 that he administered in 2003. 20 (Id. at 17, ¶ 31.) “[T]he presence of elevated Scales 6, 8 and 9 on Mr. Hernandez’s 21 1981 MMPI, at a time much closer to the date of the offenses and the stress which 22 preceded the crimes, cannot be ignored or dismissed without comment.” (Id.) 23 Dr. Sanislow concluded that the 2003 MMPI-2 “is not a reliable instrument for 24 determining whether Mr. Hernandez was bipolar or dissociative at the relevant 25 times some 22 years prior in 1981.” (Id. at 16, ¶ 30.) 26 Dr. Sanislow also testified that petitioner could have an elevated score on 27 Scale 4 without suffering from antisocial personality disorder. (Id. at 17, ¶ 32.) 28 The score could reflect petitioner’s incarceration with others convicted of murder

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1 or the abuse he suffered as a child. (Id. at 17, ¶ 31.) Moreover, “an elevation on 2 [Scale 4] alone provides no reliable information about the subject’s overall clinical 3 status or functioning (e.g., whether he or she will act impulsively). Only when the 4 scale is considered as part of the overall profile, and in the context of convergent 5 clinical information, can a clinician reliably draw conclusions regarding the 6 subject’s actual psychological condition.” (Id. at 18, ¶ 32.) 7 f. Neuropsychologist Ruben Gur 8 Dr. Gur is a clinical and research psychologist with a specialty in 9 neuropsychological assessment, and the neurobiological basis and neurobehavioral 10 aspects of schizophrenia. He is a tenured professor at the University of 11 Pennsylvania and serves as director of the neuropsychology department as well as 12 the director of the Brain Behavior Laboratory. (Gur 6/8/04 Decl. at 1, ¶ 1.) 13 Dr. Gur reviewed Dr. Martell’s testing data and testimony, the raw data from tests 14 administered by Dr. Maloney and Joseph Sawaya, the testimony of Drs. Lewis and 15 Sanislow, the report of Dr. Prentiss, petitioner’s school transcripts, petitioner’s 16 statement to the police, petitioner’s penalty phase and deposition testimony, the 17 declarations of various lay witnesses, the trial testimony of Drs. Girsh, Maloney 18 and Rayyes, the pretrial reports of Drs. Coburn and Davis, the California Supreme 19 Court opinion on direct appeal, the autopsy records, the pathologist’s trial 20 testimony and petitioner’s adoption records. (Gur 2/8/05 Decl. at 3, ¶ 8; Gur 21 6/8/04 Decl. at 3, ¶ 7.) Dr. Gur conducted a neuropsychological assessment of 22 petitioner in 2004. (Gur 2/8/05 Decl. at 3, ¶ 8.) 23 Dr. Gur testified that petitioner’s test results were “highly abnormal.” In 24 fact, Dr. Gur hadn’t “seen profiles like that in a long time. When [he] see[s] them, 25 they’ve always been associated with severe brain damage.” (Gur Depo. at 462.) 26 Dr. Gur concluded that petitioner suffers from brain damage that includes the left 27 temporal lobe, the right superior temporal and the dorsal parietal sensorimotor 28 cortex. (Gur 2/8/05 Decl. at 10, ¶ 18.) Petitioner’s brain damage is “of unclear but

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1 most likely congenital etiology, probably reflecting a neurodevelopmental disorder 2 such as schizophrenia or affective illness, complicated by adverse perinatal and 3 postnatal stressors.” (Gur 2/8/05 Decl. at 10, ¶ 18; see also Gur Depo. at 268 (“I 4 did think that either schizophrenia or bipolar illness is probably applicable in his 5 case, although there may be other neural-developmental disorders as well that 6 could have been applicable in his case such as attention deficit, hyperactivity 7 disorder, impulse control.”) 8 Dr. Gur explained that damage to the left temporal lobe causes verbal 9 memory impairment, impeding one’s ability to organize and recall information. 10 (Gur 2/8/05 Decl. at 10-11 ¶ 19.) Damage to the temporal limbic and right parietal 11 regions would cause difficulty interpreting emotional information, controlling and 12 modulating one’s emotional response and could lead to misperceptions or 13 distortions of reality by impairing the ability to distinguish emotions. (Id. at 10-11, 14 ¶¶ 19-20.) Extreme emotion and stress can exacerbate these impairments. (Id. at 15 11, ¶ 20.) Neuropsychological tests available in 1982 and 1983 would have shown 16 these impairments, but counsel did not request a neuropsychological evaluation of 17 petitioner. (Id. at 11-12, ¶¶ 21, 22.) The limited neuropsychological testing that 18 Dr. Maloney gave to petitioner was “not intended to be, and was not an adequate 19 substitute for, a comprehensive neuropsychological evaluation under the then- 20 prevailing professional standards.” (Id. at 12, ¶ 22; see also Gur Depo. at 454 (“I 21 believe any competent clinical neuropsychologist who would go over the test 22 results, even without the use of the behavioral image, would come to very similar 23 conclusions, namely, that there is evidence” of brain damage.) 24 According to Dr. Gur, petitioner’s brain damage has affected his perception 25 of the world and the way he has functioned in relationships. He has an impaired 26 ability to perceive reality accurately. Specifically, petitioner suffers from a 27 profound impairment in his ability to perceive happiness and sadness, instead 28 misperceiving these emotions as anger and fear. This long-held impairment,

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1 experienced by petitioner as early as preschool, is more severe when petitioner is 2 experiencing extreme emotion or stress. (Gur 2/8/05 Decl. at 12, ¶ 23.) 3 Dr. Gur testified that petitioner has attempted to cope with his inability to 4 perceive emotions accurately by relying on other cues to interpret feelings. 5 However, petitioner’s efforts were unsuccessful due to the mental illness exhibited 6 by petitioner’s adoptive parents. His mother suffered from schizophrenia, and his 7 father met the criteria for paranoid delusional disorder. Dr. Gur opined that the 8 “significant cognitive impairments and thought disorder associated with such 9 illnesses necessarily made it all the more difficult for Francis to learn to rely on 10 other cues.” (Id. at 12-13, ¶ 24.) Petitioner’s childhood behavior and the 11 psychological testing conducted by Joseph Sawaya on petitioner at age five support 12 the conclusion that he suffers from damage to the right parietal and left temporal 13 areas of his brain. (Id. at 13-14, ¶ 25.) 14 Dr. Gur concluded that petitioner’s brain damage is likely organic, meaning 15 that it was caused by a head injury, sustained either in utero, later or both. 16 Evidence exists that petitioner’s mother was beaten during her pregnancy, 17 petitioner was delivered with the help of forceps and petitioner was involved in 18 many accidents as a child and adolescent. (Id. at 14, ¶ 27.) 19 Dr. Gur opined that petitioner’s deficits existed at the time of the crimes, and 20 his brain damage impacted petitioner’s conduct during the crimes. Due to his 21 impairments, petitioner could not understand or respond appropriately to his 22 victims’ expressions of resistance and fear. Petitioner’s “misperception of reality 23 significantly interferes with his ability to make the right judgment, particularly in 24 an emotionally charged situation.” (Id. at 15, ¶ 29.) Moreover, petitioner’s brain 25 damage also may explain his inability to recall the details of the crime when first 26 question by the police. Petitioner testified at his deposition that the police spent 27 several hours going over the details of the crime and showing him pictures before 28 they recorded his statement. When petitioner testified at the penalty phase, he

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1 repeatedly answered that he could not recall what happened. (Id. at 15-16, ¶¶ 30- 2 32.) The clinical data supports the conclusion that petitioner actually cannot recall 3 significant parts of the crime, and not that he is being evasive or feigning 4 forgetfulness. (Id. at 16, ¶ 31.) 5 Dr. Gur also testified that petitioner’s brain damage indicates that he was in 6 a dissociative state when he committed part or all of the crimes. The combination 7 of left temporal and right parietal lesions can produce dissociation, or a state in 8 which a person can engage in a complex set of behaviors without intent or 9 premeditation. Petitioner’s statement to police, his inability to recall the details of 10 the crimes and his persistent inability to explain why he committed the crimes, 11 despite his acknowledgment that he is responsible for the crimes, are all consistent 12 with him having been in a dissociative state. (Id. at 17, ¶ 35.) 13 Dr. Gur also created behavioral imaging, or a computerized algorithm 14 designed to identify brain dysfunction by region based on standard 15 neuropsychological batteries, for petitioner. Dr. Gur and several colleagues from 16 various universities have developed a series of neuropsychological tests, as well as 17 an objective method for interpreting the results. Dr. Gur and his colleagues use the 18 test scores, together with a computer program, to create a three-dimensional visual 19 depiction of brain dysfunction and damage. (Gur 6/8/04 Decl. at 6, ¶ 11.) The 20 images that Dr. Gur created for petitioner show dysfunction in various parts of 21 petitioner’s brain, including areas associated with verbal learning deficits, 22 difficulties in abstraction, learning disabilities, attention deficit and hyperactivity, 23 affects on memory consolidation and poor impulse control. (Id. at 7, ¶ 12.) 24 On cross examination, Dr. Gur testified that, while in existence for fifteen 25 years at the time of his deposition, the behavioral imaging he has created has not 26 been accepted generally by neuropsychologists in everyday clinical practice across 27 the country. (Gur Depo. at 217.) However, it was subjected to the peer review 28 process in “highly respectable refereed journals,” and it was “accepted by the

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1 leadership.” (Id.) The standardized neuropsychological tests Dr. Gur uses are in 2 the public domain, not proprietary, are used all over the world and have been 3 administered to thousands of people. (Id. at 228.) Dr. Gur has testified about these 4 objective tests in many states, including Arizona, California, Delaware, Maryland, 5 Pennsylvania, South Carolina, Tennessee and Virginia. Dr. Gur’s tests are used by 6 Cornell Medical School, Dartmouth, Duke University, the Mayo Clinic, 7 Washington University in St. Louis, as well as the Universities of Alabama, 8 California (San Diego), Indiana, Pennsylvania, Pittsburgh, South Carolina and the 9 University of Washington in Seattle. (Gur Depo. at 480-81.) The tests have been 10 translated and are used in various countries, including Germany, Austria, Japan, 11 Korea, Holland, Israel, Portugal and Brazil. (Id. at 481.) 12 B. Mental Health Claims 13 1. Counsel’s failure to investigate and present the defense of 14 diminished capacity (Claims 5(B)(1), 5(B)(2), 5(B)(3)(a), 15 5(B)(3)(b) & 5(B)(5)) 16 Petitioner claims that trial counsel performed deficiently by failing to realize 17 that the defense of diminished capacity was available to petitioner and by failing to 18 investigate and present evidence in support of a diminished capacity defense. 19 Petitioner also alleges that counsel failed to provide petitioner’s experts with 20 information about mental culpability, diminished capacity and related facts. To 21 successfully bring an IAC claim, petitioner must show that counsel performed 22 deficiently and that this deficient performance prejudiced petitioner. Strickland v. 23 Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, 24 petitioner must show that trial counsel’s representation fell below an objective 25 standard of reasonableness as measured by prevailing professional norms. 26 Wiggins v. Smith, 539 U.S. 510, 521 (2003). A showing of prejudice requires 27 petitioner to demonstrate a reasonable probability that “but for counsel’s 28 unprofessional errors, the result of the proceeding would have been different.”

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1 Strickland 466 U.S. at 694. “A reasonable probability is a probability sufficient to 2 undermine confidence in the outcome.” Id. 3 At the time of petitioner’s trial, the doctrine of diminished capacity existed 4 in California.7 People v. Saille, 2 Cal. Rptr. 2d 364, 368 (1991) (“[S]omeone who 5 is unable, because of intoxication or mental illness, to comprehend his duty to 6 govern his actions in accord with the duty imposed by law, cannot act with malice 7 aforethought.”) A defendant’s diminished capacity could result from a physical or 8 mental condition. Saille, 2 Cal. Rptr. 2d at 367 (discussing People v. Wells, 33 9 Cal.2d 330, 351 (1949)). Nevertheless, trial counsel apparently believed that the 10 defense was unavailable at trial, other than for voluntary intoxication. (1 CDD at 11 19-20, 68; 11 CDD at 136.) 12 Counsel was deficient for failing to realize that a diminished capacity 13 defense was available to petitioner at trial. See, e.g., Morris v. California, 966 14 F.2d 448, 454-55 (9th Cir. 1992) (holding that failure to investigate and discover a 15 defense to the crime fell far below any objective standard of reasonableness). In 16 order to obtain relief, however, petitioner must show that counsel’s failure to 17 investigate and present a diminished capacity defense also was deficient and that 18 this deficiency prejudiced petitioner. 19 Petitioner has established deficiency. It is true that Dr. Prentiss, along with 20 Drs. Coburn and Davis, concluded that petitioner had the capacity to commit the 21 22 7 The California legislature enacted California Penal Code Sections 28 and 29 in September 1981. Section 28 excludes evidence of “mental disease, defect or mental disorder” in order “to 23 show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought.” Cal. Penal Code § 28. 24 Such evidence is “admissible solely on the issue of whether or not the accused actually formed a required specific intent . . . .” Id. Section 29 excludes expert witness testimony “as to whether 25 the defendant had or did not have the required mental states.” Cal. Penal Code § 29. In June of 1982, the electorate abolished the diminished capacity defense by initiative. Cal. Penal Code § 26 25(a) (“In a criminal action . . . evidence concerning an accused person’s intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the 27 particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.”) Because these changes to the law took 28 place after petitioner’s crime, the diminished capacity defense was still available to petitioner at his trial, which began in March 1983. Cal. Penal Code § 3.

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1 crimes charged and that he suffered from antisocial personality disorder. 2 Dr. Rayyes provided testimony that supported a diminished capacity defense due 3 to voluntary intoxication, but he also testified that even an impaired alcoholic 4 could form the specific intent to commit all of the charged crimes. Dr. Rabson 5 concluded that the condition of both victims’ bodies was inconsistent with 6 consensual sex. In addition, Dr. Girsh diagnosed petitioner with borderline 7 personality disorder and testified at the penalty phase that petitioner could suffer 8 from antisocial personality disorder. 9 However, Dr. Maloney told trial counsel that petitioner was “OK now but 10 had been psychotic.” (9 CDD at P00738 (Exh. L-5).) Dr. Maloney concluded that 11 “the data . . . suggest [that petitioner suffered from] some potentially serious 12 psychological problems.” (JTD P00829.) Petitioner’s profile was highly 13 pathological and indicated a fair amount of hostility. (JTD at P00829.) Counsel 14 did not put Dr. Maloney on the stand during the guilt phase. At penalty, 15 Dr. Maloney testified that he “had no data to suggest that [petitioner] would not be 16 responsible for his behavior” and that petitioner “should have had the capacity to 17 understand what he was doing.” (14 RT 3473.) In coming to these conclusions, 18 however, Dr. Maloney did not review various materials gathered since trial but 19 that were reasonably available to counsel before trial. These documents include 20 records and background information regarding petitioner’s birth family as well as 21 social history information from petitioner’s adopted family, preschool teacher and 22 others. 23 Moreover, Dr. Girsh told trial counsel before trial that there was some 24 indication of an organic, neurological basis for petitioner’s behavior. (9 CDD at 25 P00427 (Exh. L-7). In addition, various records from petitioner’s childhood 26 showed that petitioner displayed behavior at preschool that might indicate 27 neurological or psychiatric problems, that petitioner was described as troubled and 28 hyperactive as a child, that he was referred for a neurological examination and that

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1 he performed poorly on psychological tests. 2 Despite the many clues that petitioner may have been suffering from a 3 neurological problem since childhood, counsel did not request a neurological 4 examination of petitioner, nor did he pursue a diminished capacity defense based 5 on petitioner’s psychological problems. Counsel repeatedly testified that his 6 failure to realize that the defense was available or to pursue it based on petitioner’s 7 psychological impairments was not tactical or strategic. (1 CDD 22, 33-34,37-39; 8 9 CDD 49-50.) Moreover, trial counsel failed to follow-up with Drs. Coburn and 9 Davis. Neither Dr. Coburn nor Dr. Davis reviewed records related to the 10 Hernandez family’s failed attempt to adopt a second child, which included an 11 evaluation of petitioner by a family counselor at age five. 12 Trial counsel performed deficiently. Trial counsel failed to realize that the 13 defense of diminished capacity due to mental defect or condition was available to 14 petitioner. Trial counsel failed to investigate evidence that would have supported a 15 diminished capacity defense. He failed to arrange for a neurological examination 16 of petitioner, despite many red flags suggesting that petitioner suffered from a 17 psychological deficit or condition from early childhood. Trial counsel also failed 18 to follow-up with various psychological experts, both with respect to pursuing a 19 potential guilt phase defense based on petitioner’s mental condition and also in 20 terms of providing them with pertinent social history information and records. 21 “The relevant question is not whether counsel’s choices were strategic, but 22 whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). 23 Counsel’s failure to realize the defense existed and to investigate it was 24 unreasonable. 25 Although petitioner has established deficiency, he has failed to show 26 prejudice. Petitioner must show that had counsel investigated and presented a 27 diminished capacity defense, the jury likely would have found that petitioner 28 lacked the intent to commit capital murder or rape. This probability must be

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1 sufficient to undermine confidence in the jury’s guilty verdict. Even if trial 2 counsel had presented expert and documentary evidence suggesting that petitioner 3 did not have the capacity to act with malice aforethought or the specific intent to 4 rape, other circumstances would have undermined a diminished capacity defense. 5 Petitioner’s confession recounted many details of the crime. Confronted with the 6 level of detail in petitioner’s confession, the jury reasonably could have rejected a 7 defense that petitioner lacked the capacity to form the requisite intent due to 8 intoxication or mental defect. In addition, the victims suffered very similar 9 injuries, and their deaths took place just days apart. These facts could have 10 convinced the jury that some amount of preparation or deliberation was involved 11 in the crimes, undercutting an argument that diminished capacity prevented 12 petitioner from planning, deliberating or harboring malice aforethought. Finally, 13 the majority of California voters elected to abolish the defense of diminished 14 capacity due to mental disease, defect or mental disorder about eighteen months 15 prior to petitioner’s trial. See Cal. Penal Code § 28. While the change in the law 16 did not affect petitioner’s trial because he committed the crimes before the 17 referendum passed, the existence of the initiative may lend some context to 18 petitioner’s trial. It could be that a jury would be less likely to accept a defense of 19 diminished capacity due to mental disease, defect or disorder, given the change in 20 the law. While petitioner has raised some doubt about whether the jury would 21 have come to a different verdict at the guilt phase, that doubt is not sufficient to 22 undermine confidence in the jury’s guilty verdict. It is not reasonably probable 23 that the jury would have voted differently upon hearing mental health evidence in 24 support of a diminished capacity defense at the guilt phase. 25 Accordingly, the Court DENIES Claims 5(B)(1), 5(B)(2), 5(B)(3)(a), 26 5(B)(3)(b) and 5(B)(5), but will consider counsel’s deficiency in the cumulative 27 error analysis. 28

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1 2. Counsel’s failure to gather and present appropriate 2 evidence of petitioner’s problems with alcohol and drugs 3 (Claims 5(B)(3)(d), 5(B)(4), 5(C)(5), 5(C)(6), 5(C)(8)) 4 In Claims 5(B)(4) and 5(C)(6), petitioner contends that trial counsel failed 5 at both the guilt and penalty phases to arrange for an appropriate test of 6 petitioner’s reaction to the combined effect of alcohol and drugs. In Claims 7 5(B)(3)(d) and 5(C)(5), petitioner alleges that trial counsel failed at both the guilt 8 and penalty phases to properly use significant evidence of petitioner’s drug and 9 alcohol abuse problems. Finally, in Claim 5(C)(8), petitioner asserts that trial 10 counsel failed to call medical expert Dr. Amer Rayyes to testify during the penalty 11 phase. Dr. Rayyes could have offered testimony about the combined effect of 12 drugs and alcohol on petitioner’s neurological and mental functioning. Petitioner 13 further contends that trial counsel failed to consult a toxicologist to develop 14 additional evidence regarding the impact of drugs and alcohol on petitioner’s 15 mental and physical condition on the night of the crimes. 16 Again, to prevail on a claim of IAC, petitioner must show deficiency and 17 prejudice. Strickland, 466 U.S. at 687. 18 Torelli arranged for an electroencephalogram, or EEG, which examines the 19 electrical activity of the brain. The EEG given to petitioner was intended to 20 measure his response to alcohol, and the result was normal. Petitioner contends 21 that the EEG arranged by Torelli was improperly performed because the 22 examination concluded before the alcohol took effect and because it did not 23 measure petitioner’s response to drugs. Petitioner argues that trial counsel should 24 have arranged for a second EEG to be administered but that counsel failed to do so 25 because he became ill with cancer. In petitioner’s view, a properly administered 26 EEG would have shown evidence of neurological impairment, which would have 27 been useful at both the guilt and penalty phases. 28 Petitioner cannot show deficiency. Petitioner alleges that the EEG was

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1 improperly administered to him, but he has not pointed to facts in support of this 2 claim. Moreover, petitioner has failed to cite record facts that should have put 3 counsel on notice that the EEG was administered incorrectly. The record, together 4 with the evidentiary hearing evidence, fail to support petitioner’s conclusory and 5 speculative claim of deficiency. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 6 1995) (holding that “conclusory allegations which are not supported by a 7 statement of specific facts do not warrant habeas relief”) (internal quotation marks 8 and citation omitted); cf. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (“[T]he 9 petition is expected to state facts that point to a real possibility of constitutional 10 error.”) (internal quotation marks and citation omitted). 11 Petitioner also cannot show prejudice. Petitioner’s allegation that a second 12 EEG—with a longer gap in time between the administration of alcohol and the 13 examination—would have revealed neurological or other brain damage is pure 14 conjecture. Petitioner’s “claim of prejudice amounts to mere speculation.” Cooks 15 v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981). 16 Relatedly, petitioner asserts that trial counsel failed at both the guilt and 17 penalty phases to present significant evidence of petitioner’s drug and alcohol 18 abuse. In particular, petitioner contends that trial counsel failed to present 19 evidence that alcohol and drugs exacerbated petitioner’s neurological 20 abnormalities, including at the time of the crimes, either through the testimony of 21 Dr. Rayyes or another expert. Petitioner also argues that counsel failed to consult 22 a toxicologist to develop additional evidence about the impact of drugs and alcohol 23 on petitioner’s mental and physical condition. (Pet. at 36, 40.) 24 Counsel presented the theory petitioner suggests. In his opening statement 25 at guilt, trial counsel stated that “Francis Hernandez is essentially a Dr. Jekyl[l] 26 and Mr. Hyde when it comes to the use and abuse of alcohol and drugs” and that 27 “when he utilizes [drugs or alcohol], the fact of the matter is he would essentially 28 go crazy, particularly with reference to the use of alcohol.” (12 RT 2999.)

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1 Counsel outlined that the defense would rely in large part on petitioner’s 2 inebriation at the time of the crimes and Dr. Rayyes’s opinion that petitioner 3 suffered from alcoholism. (12 RT 3000, 3002.) Dr. Rayyes did in fact testify that 4 petitioner suffered from alcoholism and that he was impaired to such a degree on 5 the night of the crimes that he could not form the specific intent to commit murder. 6 (12 RT 3061-70.) Counsel argued at the close of the guilt phase that petitioner 7 lacked the specific intent to commit the murders. (12 RT 3167-74.) Counsel also 8 argued at the penalty phase that alcoholism prevented petitioner from 9 remembering the details of the crime. (14 RT 3659.) 10 Petitioner argues that counsel did not tie petitioner’s problems with 11 substance abuse to petitioner’s mental condition, particularly by showing that 12 alcohol and drugs exacerbated petitioner’s neurological deficiencies. Petitioner 13 also faults counsel for not consulting a toxicologist to explain the physiological 14 impact of alcohol and drugs on petitioner. Petitioner fails to demonstrate deficient 15 performance. Trial counsel relied on an EEG ordered by prior counsel and 16 administered by a professional, without any objective indication that the test was 17 administered improperly. Trial counsel also consulted with an expert on 18 alcoholism, and that expert testified that petitioner suffered from alcoholism and 19 explained the effects that alcohol would have had on petitioner’s conduct. 20 Counsel’s performance was not deficient. “Strickland does not guarantee perfect 21 representation, only a ‘reasonably competent attorney.’” Harrington v. Richter, 22 131 S.Ct. 770, 791 (2011) (quoting Strickland, 477 U.S. at 687); see also U.S. v. 23 Burroughs, 613 F.3d 233, 246-47 (D.C. Cir. 2010) (“The Sixth Amendment . . . 24 does not pledge perfection.”) (quoting United States v. Hurt, 527 F.3d 1347, 1357 25 (D.C. Cir. 2008).) Petitioner suggests, without demonstrating, that counsel could 26 have used an additional expert or put Dr. Rayyes on at the penalty phase to 27 connect petitioner’s substance abuse problems to his neurological deficits. While 28 more specific or nuanced expert testimony about alcohol and drugs could have

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1 been desirable, it is not constitutionally required. “The Sixth Amendment 2 guarantees reasonable competence, not perfect advocacy judged with the benefit of 3 hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003); cf. Richter, 131 S.Ct. at 4 791 (“Just as there is no expectation that competent counsel will be a flawless 5 strategist or tactician, an attorney may not be faulted for a reasonable 6 miscalculation or lack of foresight for failing to prepare for what appear to be 7 remote possibilities.”) Petitioner’s claims of deficiency and prejudice fail. 8 Accordingly, the Court DENIES Claims 5(B)(3)(d), 5(B)(4), 5(C)(5), 9 5(C)(6) and 5(C)(8). 10 3. Counsel’s failure to investigate petitioner’s biological 11 family (Claims 5(B)(6) & 5(C)(10)) 12 In Claims 5(B)(6) & 5(C)(10), petitioner argues that trial counsel failed to 13 investigate the identity and psychological background of petitioner’s biological 14 parents, even though counsel knew petitioner was adopted. Petitioner alleges that 15 if trial counsel had conducted an investigation, he would have discovered: (1) that 16 petitioner’s biological parents had a long history of serious psychiatric 17 impairments, (2) that the psychiatric problems petitioner’s biological parents 18 suffered from had a genetic component and, therefore, resulted in petitioner having 19 a predisposition to severe adaptation and psychological problems, (3) that 20 petitioner’s biological father has been psychiatrically institutionalized and 21 evaluated as a schizophrenic; (4) that petitioner’s biological mother also had been 22 institutionalized; (5) that some of petitioner’s biological maternal siblings suffered 23 from serious psychiatric and emotional difficulties requiring at least one of them to 24 be hospitalized for mental health disorders; and (6) that petitioner’s biological 25 mother abused alcohol while pregnant with petitioner, was a victim of abuse 26 during her pregnancy with petitioner and that forceps were used in petitioner’s 27 delivery. Petitioner contends that the presentation of this evidence would have 28 supported a theory that his severe psychological disorders prevented him from

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1 forming the specific intent necessary to support a first degree murder conviction or 2 would have provided significant mitigating evidence. 3 Petitioner must demonstrate deficiency and prejudice to obtain relief on a 4 claim of IAC. Strickland, 466 U.S. at 687. 5 Counsel performed deficiently by failing to investigate petitioner’s birth 6 family. Trial counsel knew that petitioner was adopted and, believing that mental 7 illness had a genetic component, counsel intended to investigate petitioner’s birth 8 family. (10 CDD 52.) Torelli’s file, which he handed over to trial counsel, 9 included the name of petitioner’s birth mother. (9 CDD 52, 10 CDD 50-51, 11 10 CDD 86.) Trial counsel sought a court order authorizing him to access all records 11 regarding the Hernandez family’s attempt to adopt a second child. (1 CT 279-84.) 12 The trial court granted petitioner’s request. In fact, the trial court authorized 13 petitioner to access the adoption records regarding the failed adoption, including 14 all adoption records related to the Hernandez family for an eight-year period. (1 15 CT 285-86) (authorizing access to adoption records for the Hernandez family from 16 1962, the year of petitioner’s birth and adoption, through and including 1970). 17 Moreover, the judge who granted petitioner access to adoption records concerning 18 the Hernandez family testified in these proceedings that petitioner’s capital 19 prosecution would have been good cause to open the adoption records and that she 20 would have authorized access to information identifying petitioner’s birth parents. 21 (Pokras Decl. at 1, ¶2.) Trial counsel never attempted to obtain petitioner’s 22 adoption records. He testified that he had no tactical reason for this decision. (9 23 CDD 52, 10 CDD 50-51, 11 CDD 86.) No reasonable basis supports counsel’s 24 failure to acquire petitioner’s adoption records. Trial counsel performed 25 deficiently. Silva v. Woodford, 279 F.3d 825, 842 (9th Cir. 2002) (“[A]n 26 attorney’s failure to investigate, during either the guilt phase or the sentencing 27 phase of a capital trial, can amount to constitutionally deficient performance.”) 28 Moreover, trial counsel failed to conduct any investigation into petitioner’s

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1 birth family, despite all experts agreeing that such evidence would have been 2 germane to petitioner’s defense at trial. A letter from the Los Angeles Department 3 of Children’s Services to counsel on direct appeal shows the following: 4 petitioner’s birth mother was an unmarried 14-year-old; the birth father was an 18- 5 year-old unemployed man who was incarcerated for robbery after being sentenced 6 to a five-year term in 1961; the relationship continued in defiance of the wishes 7 expressed by the birth mother’s family; the birth mother deliberately disobeyed her 8 parents; the birth parents frequented “drinking parties” and had a violent 9 relationship, “as the birth father beat [the birth mother] on numerous occasions and 10 appeared to enjoy the brutal treatment”; and the birth father told the birth mother 11 to take quinine tablets to terminate the pregnancy. (4/27/05 Joint Stipulation 12 Exh. C.) The records also show that forceps were used in petitioner’s birth. (Id.) 13 In investigating petitioner’s birth family, appellate counsel learned that petitioner’s 14 birth mother and members of her family suffer from depression and other mental 15 disorders and that petitioner’s birth father suffers from substance abuse and 16 schizophrenia. Trial counsel’s failure to investigate petitioner’s birth family was 17 deficient. See Caro v. Calderon, 165 F.3d 1223, 1226 (9th Cir. 1998) (noting that 18 a complete mental evaluation must contain information about a petitioner’s 19 personal background); see also Lewis 8/15/03 Decl. at 4, ¶ 8 (“It is impossible to 20 understand Francis Hernandez’s psychiatric condition . . . without a clear 21 understanding of the interactions among his genetic vulnerabilities to severe 22 mental illness which he inherited from his biological mother and father, the effects 23 of in utero exposure to alcohol and drugs, repeated head injuries beginning in early 24 childhood, and an upbringing in a psychotic, physically and sexually abusive, and 25 severely neglectful adoptive family.”) “Thus, [the Ninth Circuit has] found 26 counsel ineffective where he neither conducted a reasonable investigation nor 27 made a showing of strategic reasons for failing to do so.” Sanders v. Ratelle, 21 28 F.3d 1446, 1456 (9th Cir. 1994).

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1 a. Guilt phase prejudice 2 Petitioner has not shown that the failure to investigate his birth family 3 caused him unconstitutional prejudice at the guilt phase. 4 Petitioner argues that the evidence related to his birth family would have 5 enabled him to assert a successful diminished capacity defense. Specifically, 6 petitioner contends that with information about his birth family, he could have 7 shown that he was in a dissociative state during the crimes. (Ptr’s Corrected Brief 8 on Prejudice at 106.) Evidence that petitioner inherited a vulnerability to mental 9 illness also would have supported the argument that petitioner did not and could 10 not premeditate or deliberate the killings with the requisite specific intents. (Id. at 11 107.) As discussed with respect to guilt phase claims concerning counsel’s failure 12 to pursue a diminished capacity defense, this defense likely would have failed. 13 Even bolstered in part by evidence of mental illness in petitioner’s birth family, as 14 well as the poor circumstances of petitioner’s in utero development and birth, a 15 diminished capacity defense due to petitioner’s mental condition likely would have 16 gained little traction at trial. Petitioner’s detailed confession would have undercut 17 evidence that petitioner dissociated during both crimes. Moreover, the crimes 18 were incredibly similar and took place close in time. A reasonable jury could have 19 concluded that petitioner did in fact deliberate and premeditate the crimes. Also as 20 discussed supra, California voters had passed a referendum that eliminated the 21 defense of diminished capacity due to mental disease, defect or mental disorder a 22 year and a half before petitioner’s trial. See Cal. Penal Code § 28. Though the 23 defense technically applied to petitioner’s case, the general culture at the time may 24 have been hostile to accepting this sort of defense at the guilt phase. The 25 additional evidence about petitioner’s biological family does not support a 26 conclusion that the jury would have voted differently at the guilt phase. 27 Accordingly, the Court DENIES Claim 5(B)(6) but will consider counsel’s 28 deficient performance in the cumulative error analysis.

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1 b. Penalty phase prejudice 2 The prejudice analysis requires the Court to “evaluate the totality of the 3 available mitigation evidence—both that adduced at trial, and the evidence 4 adduced at the habeas proceeding—in reweighing it against the evidence in 5 aggravation.” Williams (Terry) v. Taylor, 529 U.S. 362, 398 (2000). 6 The prosecution’s penalty phase case in aggravation relied solely on the 7 circumstances of the crime. Petitioner presented the brief testimony of several 8 family members, a friend, petitioner’s ex-girlfriend and two clinical psychologists 9 in mitigation. Petitioner also took the stand. The penalty phase lacked a coherent 10 narrative, but some themes included that petitioner abused alcohol; that his mother 11 had suffered several mental breakdowns during his childhood; that petitioner had 12 some emotional problems; that petitioner would probably not be dangerous in 13 prison and that petitioner’s life should be saved due to familial love, his potential 14 for religious salvation or both. 15 Dr. Girsh testified that petitioner likely suffered from borderline personality 16 disorder and, on cross-examination, that petitioner may have suffered from 17 antisocial personality disorder. (14 RT 3584, 3599.) Dr. Maloney testified that 18 petitioner suffered from “emotional disturbances” from an early age, but that 19 Dr. Maloney had no data to suggest that petitioner was psychotic, disturbed or 20 unable to understand what he was doing at the time of the crimes. (14 RT 3473- 21 74, 3475.) Neither Dr. Girsh nor Dr. Maloney knew the circumstances of 22 petitioner’s in utero development or his inherited predisposition to mental illness. 23 The brief testimony from petitioner’s family members did not evoke much 24 mercy. Petitioner’s adoptive mother provided largely scattered testimony about 25 her mental illness, with no testimony about how her incapacitation affected 26 petitioner. Petitioner’s adoptive father testified that petitioner was upset about his 27 mother’s breakdowns but that he tried to be helpful, that petitioner was harassed a 28 lot by the police due to his race, that petitioner was able to take care of himself

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1 starting around age seven or eight and that petitioner got angry when he did not get 2 his way. Petitioner’s uncle testified that petitioner had too much responsibility 3 heaped on him, that he did not have a backyard with grass growing up and that had 4 a bad experience at Montessori preschool. Petitioner’s paternal aunt testified that 5 she saw petitioner only two or three times a year since his adoption, but that she 6 would commit to writing petitioner every month and visiting him every other 7 month if he were sentenced to life without parole. A friend testified that petitioner 8 convinced her to give up drinking and smoking because she had Diabetes. 9 Petitioner’s ex-girlfriend testified that they had normal sex and only one violent 10 episode, when petitioner slapped her after she hit him with a pipe. 11 “It is imperative that all relevant mitigating information be unearthed for 12 consideration at the capital sentencing phase.” Caro v. Calderon, 165 F.3d 1223, 13 1227. Moreover, “[t]he Constitution prohibits imposition of the death penalty 14 without adequate consideration of factors which might evoke mercy.” Hendricks 15 v. Calderon, 70 F.3d 1032, 1044 (9th Cir. 1995) (internal quotation marks and 16 citation omitted). Petitioner’s adoption and birth records would have shown that 17 petitioner was born to a fourteen-year-old girl in a physically abusive relationship 18 with an incarcerated eighteen-year-old. Petitioner was exposed to violence, drugs 19 and alcohol in utero. Petitioner was delivered with forceps, which are known to 20 cause neurological damage. (See Gur 2/8/05 Decl. at 14, ¶ 27.) Limited additional 21 investigation into petitioner’s birth family would have shown that petitioner’s birth 22 mother suffered from depression and that his father suffered from serious mental 23 illness. Petitioner’s mental health experts did not know about the circumstances of 24 petitioner’s birth family or in utero development, and the jury did not hear any 25 such evidence. Had petitioner’s experts considered and testified about petitioner’s 26 inherited vulnerability to mental illness, his exposure to toxins in utero and his 27 forceps delivery, a substantially different case in mitigation would have been 28 presented. The question is whether it is reasonably probable that the jury would

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1 have reached a verdict of life without parole. 2 The Ninth Circuit has held “that overwhelming evidence of guilt does not 3 ameliorate the failure to present mitigating evidence at the penalty phase.” Caro, 4 165 F.3d at 1277. In fact, “the determination of whether to impose a death 5 sentence is not an ordinary legal determination which turns on the establishment of 6 hard facts. The statutory factors [in California] give the jury broad latitude to 7 consider amorphous human factors, to weigh the worth of one’s life against his 8 culpability.” Id. (quotation marks and citations omitted). Petitioner’s brain 9 damage was rooted in part in his biological background: being born to fourteen- 10 year-old girl who abuses alcohol during pregnancy and a forceps delivery. (Gur 11 Depo. at 461.) Counsel’s failure to investigate and present evidence concerning 12 petitioner’s biological roots certainly caused him prejudice. Evidence about 13 petitioner’s biological background, prenatal circumstances and birth certainly 14 would have made a marked improvement to the weak mitigation case presented. 15 Weighed against the aggravating circumstances of the crime, and considering the 16 damaging effect of petitioner’s penalty phase testimony, however, petitioner has 17 not shown prejudice sufficient to undermine confidence in the jury’s verdict. 18 Accordingly, the Court DENIES Claim 5(C)(10) but will consider this claim 19 in the cumulative error analysis. 20 4. Counsel’s failure to investigate and present evidence of 21 petitioner’s dysfunctional adoptive family (Claims 22 5(B)(3)(c) & 5(C)(3)) 23 In Claim 5(C)(3), petitioner claims that trial counsel failed at the guilt and 24 penalty phases to properly use evidence regarding the unstable and dysfunctional 25 nature of petitioner’s family background. 26 To prevail on a claim of IAC, petitioner must show deficiency and 27 prejudice. Strickland, 466 U.S. at 687. 28 Trial counsel knew that petitioner had been abused. (1 CDD 13.) Counsel

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1 did not attempt to obtain petitioner’s childhood medical records, to interview the 2 family’s doctor or to investigate allegations of abuse. Moreover, counsel did not 3 attempt to obtain the medical or psychiatric records for petitioner’s adoptive 4 mother, Naomi, who was diagnosed with schizophrenia when petitioner was six. 5 Counsel did not contact Naomi’s treating psychiatrists. Counsel did not interview 6 family members about Naomi’s behavior before, during and after her breakdowns. 7 Counsel did not attempt to locate or interview the person hired to help in the 8 Hernandez home after Naomi’s first breakdown. Trial counsel testified that he did 9 not have a tactical reason for failing to conduct this investigation. (1 CDD 13, 31- 10 32, 55-56.) Counsel never learned that petitioner’s mother used to sit on him to 11 calm him down, that she and petitioner would tie each other up or to a chair as a 12 form of play and that she forcibly administered enemas to petitioner as discipline, 13 making him hold the fluid inside for ten to fifteen minutes. (7/16/03 Kuhl Decl. at 14 6-7, ¶ 24; 7, ¶¶ 26, 29.) 15 At trial, Naomi testified that she had several breakdowns, that she was in 16 and out of mental hospitals and that she was depressed. No one testified about 17 Naomi’s behavior at the time or about how it affected petitioner. As part of the 18 evidentiary hearing, Naomi testified. She suffered hallucinations and was 19 hospitalized for several times for many months. (7/16/03 Decl. at 9, ¶ 36.) During 20 her time in the hospital, she “didn’t know who was taking care of Francis” and 21 “just wasn’t able to think about that.” (Id. at 9, ¶ 37.) She remembers Francis 22 coming to visit and that he “didn’t look like he was being taken care of very well. 23 He looked disheveled.” (Id.) When she was released, she took Mellaril, a fact the 24 jury did hear. However, no one explained the medication’s effects at trial. Naomi 25 felt “so lethargic” that it was like she “was in slow motion all the time.” Her 26 “breakdowns also affected Francis badly. I did so many odd things that it must 27 have confused Francis when he was a little boy. My medication also made me 28 unable to be a mother to Francis. I was just too slow and depressed to do the

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1 things a mother should do for her son. I feel very sad about that. My mental 2 illness made me so depressed and miserable that I think our home was a bad place 3 for a little boy.” (Id. at 17-18, ¶ 73.) 4 Counsel also did not investigate and present evidence that when Naomi 5 suffered her second breakdown and was hospitalized, petitioner’s adoptive father 6 got a job working in Palmdale. Because his father commuted from Long Beach, 7 petitioner was often on his own starting at age eight. (Id. at 11-12, ¶ 47.) 8 “Counsel has a duty to make reasonable investigations or to make a 9 reasonable decision that makes particular investigations unnecessary.” Strickland, 10 466 U.S. at 691. The scope of counsel’s investigation was inadequate and 11 unreasonable, given the various leads evident in the information counsel did know. 12 Wiggins, 539 U.S. at 525 (“[A]ny reasonably competent attorney would have 13 realized that pursuing these leads was necessary to making an informed choice 14 among possible defenses, particularly given the apparent absence of any 15 aggravating factors in petitioner’s background.”) “[T]he investigation should 16 include inquiries into social background and evidence of family abuse.” 17 Summerlin v. Schriro, 427 F.3d 623, 630 (9th Cir. 2005) (en banc). Moreover, the 18 record reflects that “counsel uncovered no evidence in [his] investigation to 19 suggest that a mitigation case, in its own right, would have been 20 counterproductive, or that further investigation would have been fruitless . . . .” 21 Wiggins, 539 U.S. at 525. 22 “[T]he duty to investigate does not force defense lawyers to scour the globe 23 on the off chance something will turn up; reasonably diligent counsel may draw a 24 line when they have good reason to think further investigation will be a waste.” 25 Rompilla v. Beard, 545 U.S. 374, 383 (2005) (quoting Wiggins, 539 U.S. at 525). 26 In this instance, however, effective representation would not have required counsel 27 to do anything as dramatic as scour the globe in the hope that he would find 28 something helpful. Instead, the record shows that counsel’s failure to investigate

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1 and present evidence about petitioner’s unstable and dysfunctional upbringing was 2 objectively unreasonable, given what counsel knew at the time. 3 In addition, “[c]ounsel have an obligation to conduct an investigation which 4 will allow a determination of what sort of experts to consult. Once that 5 determination has been made, counsel must present those experts with information 6 relevant to the conclusion of the expert.” Caro v. Calderon, 165 F.3d 1223, 1226- 7 27 (9th Cir. 1998). Counsel did not realize the importance of having an expert 8 explain how petitioner would have been impacted by his adoptive mother’s 9 schizophrenia. Moreover, counsel failed to provide the clinical experts who 10 testified at the penalty phase with a full picture of the family’s difficulties, as 11 counsel inadequately investigated petitioner’s home life. Counsel’s failure to 12 conduct an adequate investigation was deficient. 13 a. Guilt phase prejudice 14 As with the other guilt phase claims discussed, petitioner has not shown that 15 counsel’s failure to investigate and present the dysfunctional nature of his adopted 16 family caused him unconstitutional prejudice at the guilt phase. 17 Again, petitioner argues that his adoptive mother’s psychotic behavior and 18 the physical abuse that both parents inflicted on him interfered with petitioner’s 19 ability to premeditate, deliberate and harbor the specific intent to kill. (Ptr’s Brief 20 on Deficiency at 20-21.) As discussed, a diminished capacity defense due to 21 petitioner’s mental condition—whether bolstered by his adoptive mother’s 22 psychosis, the abuse petitioner suffered at his adoptive parents’ hands or 23 both—was not likely to succeed at the guilt phase. The detail contained in 24 petitioner’s confession and the nearly identical nature of the crimes could cause a 25 reasonable jury to reject a claim that petitioner could not deliberate or premeditate 26 or that he dissociated during the crimes. Also as discussed, about eighteen months 27 before trial, an initiative had passed in California that abolished the defense of 28 diminished capacity due to mental disease, defect or mental disorder. See Cal.

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1 Penal Code § 28. This context may have undercut the potential efficacy of a 2 diminished capacity defense at the guilt phase. 3 Accordingly, the Court DENIES Claim 5(B)(3)(c) but will consider 4 counsel’s deficiencies in the cumulative error analysis. 5 b. Penalty phase prejudice 6 Again, the Court must weigh the evidence in mitigation, including the 7 evidence adduced at trial together with the evidence presented at the evidentiary 8 hearing, against the evidence in aggravation. Williams (Terry), 529 U.S. at 398. 9 As discussed, the aggravating evidence in this case is limited to the circumstances 10 of the crime. 11 The jury heard petitioner’s adoptive parents, Naomi and Frank, testify about 12 Naomi’s nervous breakdowns. Their trial testimony makes clear that Naomi was 13 severely depressed and in and out of mental hospitals from when petitioner was 14 age six until he was about fifteen, when Naomi left Frank. However, some of 15 Frank’s testimony downplayed the seriousness of Naomi’s illness. (See, e.g., 13 16 RT 3371 (testifying that when Naomi had her second breakdown when petitioner 17 was eight that “Francis was older and he seemed to be able to take care of himself 18 a little better in that situation, and I think that my wife showed some 19 improvement” despite subsequent nervous breakdowns requiring lengthy 20 hospitalizations). No one testified about the effect that Naomi’s very serious 21 mental illness had on petitioner. Even the clinical psychologists who testified had 22 little to offer. Dr. Girsh testified only that petitioner’s upbringing was 23 “amorphous,” “haphazard and unstructured.” (14 RT 3589.) When asked how 24 petitioner’s home life affected petitioner, Dr. Maloney responded: “Well, the 25 mother left the scene not—somewhere during Francis’[s] childhood. So she was 26 not there at all for guidance, and previous to that, was fairly incapable of handling 27 him. The father tended to excuse any problem Francis had. The net effect of all 28 this was [petitioner] never got treated for anything.” (14 RT 3478-79.) Counsel

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1 did not investigate or present any evidence about how being raised by a psychotic, 2 schizophrenic mother and a paranoid father affected petitioner. 3 Trial counsel’s failure to investigate and present the dysfunctional nature of 4 petitioner’s adoptive family had dire consequences at the penalty phase. Counsel 5 presented some testimony that petitioner was raised by a mentally ill mother, but 6 “[t]he jury did not . . . have the benefit of expert testimony to explain the 7 ramifications of these experiences on [petitioner’s] behavior. Expert evidence is 8 necessary on such issues when lay people are unable to make a reasoned judgment 9 alone.” Caro v. Calderon, 165 F.3d at 1227. The evidence presented about 10 petitioner’s unfortunate home life was limited and without context. 11 Dr. Clausen, who specializes in children and adolescents, offered 12 evidentiary hearing testimony about the impact that petitioner’s schizophrenic 13 mother would have had on him. Children raised by a schizophrenic parent tend to 14 suffer from various difficulties, including cognitive, behavioral, emotional and 15 social. (Clausen Decl. at 93-94, ¶ 235.) Naomi’s schizophrenia prevented 16 petitioner from forming a heathy attachment to his primary caretaker as an infant, 17 resulting in a failure to develop basic trust. (Id. at 94-96, ¶¶ 236-40.) Naomi and 18 Frank’s poor parenting also prevented petitioner from developing a sense of 19 autonomy and initiative, the appropriate developmental task for a child ages two to 20 six. Consequently, petitioner lacked a healthy self-concept, as well as basic skills 21 in social comprehension and interpersonal communication. Petitioner had no 22 grasp of the expectations of him or the consequences for failing to meet those 23 expectations. (Id. at 96-103, ¶¶ 241-49, 251.) In his early school years, petitioner 24 developed anxiety and depression, and he avoided going home. (Id. at 109, ¶ 264.) 25 In fifth grade, petitioner began coping by using drugs and alcohol regularly, and 26 his substance abuse habits grew worse with time. (Id. at 109, ¶ 266.) Petitioner 27 had no boundaries or structure and began acting out during his teen years. (Id. at 28 110, ¶ 268; 112, ¶ 273; 113 ¶ 274.) Petitioner’s mother abandoned the family

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1 without saying goodbye when petitioner was fifteen. (Id. at 113, ¶ 275.) 2 Petitioner turned more often to drugs, and the physical condition of his home 3 deteriorated further. (Id. at 113-14, ¶¶ 276, 277.) 4 Dr. Lewis opined that Naomi’s inadequate mothering affected petitioner in 5 significant ways. As early as preschool, petitioner manifested psychotic behavior, 6 such as attacking his peers without provocation, misperceiving reality, misreading 7 social cues, bringing dangerous items to school, engaging in dangerous behavior 8 and being unable to transition from one activity to another. (Lewis 8/15/03 Decl. 9 at 25-27, ¶¶ 63, 67-68.) A psychological evaluation of petitioner at age five 10 showed that he was “frantic” and “very disturbed.” (Id. at 29, ¶ 73.) The horrid 11 physical condition of petitioner’s home added to the problem. Dr. Lewis 12 concluded that “[n]o child raised in such an environment could be expected to 13 develop normally. He or she would have no models for normal social interaction 14 and no experiences of the kind of ongoing nurturing and cognitive stimulation that 15 every human being requires for normal adaptation.” (Id. at 30, ¶ 76.) 16 Dr. Lewis also testified that a connection existed between the administration 17 of enemas to petitioner as a child and the sodomy aspect of the crimes. (Id. at 19, 18 ¶ 46.) Specifically, Dr. Lewis testified that “[c]hildren who have been repeatedly 19 stimulated sexually and/or teased sexually by an adult, especially a mother, are at a 20 very high risk of acting out sexually and aggressively toward women other than 21 their abusers.” (Id.) In fact, “[r]epeatedly holding a child down and inserting 22 objects into that child’s rectum is a form of sodomy . . . . The acts are experienced 23 by the child as repeated anal sexual assaults. (Lewis 5/8/04 Decl. at 11, ¶ 30.) 24 Although the Supreme Court has held that a nexus between a petitioner’s crime 25 and his or her mental condition is not required, an expert’s opinion that petitioner 26 sodomized his victims because of the abuse he suffered as a child would have been 27 powerful mitigating evidence. See, e.g., Tennard v. Dretke, 542 U.S. 274, 287 28 (2004).

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1 Finally, Dr. Gur testified that petitioner’s biological background, coupled 2 with his adoptive parents’ problems, was “a prescription for disaster. It’s a 3 prescription for someone who will really never develop normally and will not have 4 much of a chance to develop the mental and intellectual and personal capacity to 5 cope with life’s stresses.” (Gur Depo. at 447.) 6 “[D]efense counsel’s penalty phase performance was constitutionally 7 deficient where counsel ‘failed to adequately investigate, develop, and present 8 mitigating evidence to the jury even though the issue before the jury was whether 9 [the defendant] would live or die.” Ainsworth v. Woodford, 268 F.3d 868, 874 10 (9th Cir. 2001); see also Caro, 165 F.3d at 1226-27 (remanding for an evidentiary 11 hearing where counsel failed to investigate and present “precisely the type” of 12 mitigating evidence “most likely to affect a jury’s evaluation of the punishment” 13 petitioner should have received). Dr. Lewis testified that “one cannot 14 overemphasize the effects on Francis, as a psychiatrically vulnerable child to begin 15 with, of being raised by a chronically psychotic, sexually abusive mother.” (Lewis 16 8/15/03 Decl. at 19, ¶ 46.) Mitigation evidence about how petitioner’s 17 dysfunctional family circumstances affected him would have provided compelling 18 evidence at the penalty phase. “[E]vidence about the defendant’s background and 19 character is relevant because of the belief, long held by this society, that 20 defendants who commit criminal acts that are attributable to a disadvantaged 21 background . . . may be less culpable than defendants who have no such excuse.” 22 Penry v. Lynaugh, 492 U.S. 302, 319 (1989). 23 The excluded evidence about petitioner’s home life, including testimony 24 about the abuse petitioner suffered and the relationship between that abuse and the 25 crime, would have provided powerful and compelling mitigating evidence. When 26 weighed against petitioner’s damaging penalty phase testimony, however, 27 petitioner has not demonstrated a reasonable probability of a different penalty 28 phase verdict. (See Discussion of Claim 5(D)(27) infra.)

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1 Accordingly, the Court DENIES Claim 5(C)(3) but will consider counsel’s 2 deficiencies in the cumulative error analysis. 3 5. Counsel’s failure to present evidence of petitioner’s mental 4 condition (Claims 5(C)(1), 5(C)(2), 5(C)(4) & 5(C)(9)) 5 In Claims 5(C)(1), petitioner argues that counsel failed to present evidence 6 of petitioner’s mental condition that would have been compelling mitigating 7 evidence, including that petitioner suffered from clinically significant 8 manifestations of schizophrenia, hypomania, manic depression, hyperactivity, 9 psychotic deviations and impulse disorders. In Claim 5(C)(2), petitioner contends 10 that trial counsel failed to introduce psychiatric reports describing petitioner’s 11 clinical profile as “highly pathological” and “schizo-manic.” In Claim 5(C)(4), 12 petitioner asserts that trial counsel failed to introduce documentary evidence that 13 would have corroborated these diagnoses. In Claim 5(C)(9), petitioner argues that 14 trial counsel limited the testimony of petitioner’s clinical and forensic psychologist 15 Dr. Faye Girsh at the penalty phase. Counsel also failed to call witnesses who 16 could have offered first-hand accounts of petitioner’s lack of dangerousness in 17 custody. 18 A successful claim of IAC requires a showing of both deficiency and 19 prejudice. Strickland, 466 U.S. at 687. 20 a. Deficiency 21 In advance of trial, Dr. Maloney examined petitioner. Dr. Maloney reported 22 that the “data do suggest some potentially serious psychological problems” and 23 that petitioner had a “highly pathological profile.” (JTD at P00829.) Dr. Maloney 24 found that petitioner had significant elevations on scales measuring hypomania, 25 schizophrenia, psychopathic deviate and paranoia. (Id.) He explained that people 26 with similar profiles have episodes in which they come across as demanding, 27 confused, hostile, hyperactive, panicky and circumstantial, and that they may also 28 be restless, evasive and high strung. (Id.) Moreover, people with similar profiles

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1 exhibit intense overreaction to normal rejection. (Id.) Dr. Maloney opined that the 2 most likely diagnosis is schizo-manic episode, which involves some breakdown in 3 the thinking processes coupled with a manic-like state. (Id. at P00830.) The most 4 technical diagnosis would be schizophrenia, but petitioner did not show any overt 5 signs of schizophrenia. Petitioner did seem to have a variety of psychological 6 problems, however. (Id.) Dr. Maloney concluded:

7 The present data suggest that we have an individual who functions in the normal range of general intelligence with no 8 suggestion of any specific cognitive-intellectual or perceptual deficit. He also does not manifest any of the primary signs of a major 9 condition such as psychosis. Present data do, however, indicate that he has significant psychological problems and comes from a very 10 unstable background with multiple noted difficulties relating to his 11 parents as well as problems between his parents. 12 (Id. at P00830.) Dr. Maloney testified at penalty that petitioner’s “emotional 13 disturbances” were evident starting in childhood and went untreated, that 14 petitioner had the mental capacity to commit the crimes and that he would do well 15 if he had “extreme limits” placed on him. Counsel did not ask Dr. Maloney to 16 explain the many psychological problems discussed in his report or to testify about 17 petitioner’s familial problems. Dr. Maloney’s testimony, including cross- 18 examination, comprised just eighteen pages of transcripts. (14 RT 3458-84.) 19 As part of the evidentiary hearing, counsel offered the following testimony: 20 Dr. Maloney determined that Francis suffered from potentially 21 serious psychological problems, that he exhibited symptoms of hypomania, schizophrenia and paranoia, suggestive of a state in 22 which there is some breakdown in the thinking processes combined with an elevated or manic-like state. Data also indicated that Francis 23 suffered from feelings of being closed in or trapped and a tendency to become mad or irritated by fairly mild provocation. Dr. Maloney also 24 concluded that Francis came from a very unstable background with multiple difficulties relating to his parents as well as between his 25 parents. In my examination of Dr. Maloney, I brought out his opinion that Francis knew what he was doing at the time of the crimes, was 26 not psychotic and was legally responsible when he committed the crimes, but failed to elicit his additional opinions regarding the 27 symptoms of mental problems he noted in his report, and the degree of problems within the family. I had no tactical reason for failing to 28 elicit this testimony from Dr. Maloney or for not giving him an

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1 opportunity to explain the reasons for his opinion. 2 (1CDD 25-26.) 3 Dr. Girsh testified that petitioner was intoxicated at the time of the crimes 4 and that his behavior was out of control and atypical. She diagnosed petitioner 5 with borderline personality disorder but admitted on cross-examination that 6 antisocial personality disorder could apply. Petitioner’s history of substance abuse 7 and his many accidents fit with the kind of self-destructive behavior typical of 8 borderline personality. She briefly touched on petitioner’s home life, describing it 9 as haphazard, unstructured and amorphous. She testified that nothing indicated 10 that petitioner would be difficult in prison. (14 RT 3577-3603.) 11 As to the testimony of Dr. Girsh, counsel testified as follows: 12 I recall that Dr. Girs[]h was upset with me after her testimony. I had 13 prepared her to testify extensively about Francis’[s] adoptive mother’s inability to bond with him and the significance of that fact, 14 which I thought was important for the jury to understand. Faye complained that I cut her off and did not give her an opportunity to 15 present the information she was prepared to give. I did not have a tactical reason for curtailing my examination of Dr. Girs[]h or for 16 failing to give her an opportunity to explain the bases for her 17 opinions. 18 (1 CDD 25.) 19 In advance of trial, counsel gathered various documents and had 20 Dr. Maloney and Dr. Girsh review them. These records included files from the 21 Montessori school petitioner attended, documents concerning the Hernandez 22 family’s attempt to adopt a second child and records from the St. Thomas More 23 Clinic where petitioner and his family received counseling while the application to 24 adopt a second child was pending. Trial counsel had his paralegal prepare these 25 documents as exhibits for trial. (1 CDD 24.) In his opening statement, counsel 26 referenced these records twice and said that “[t]he records are somewhat extensive 27 in that the—there are a number of records from a number of different sources that 28 indicate how the defendant got to where the defendant is.” (13 RT 3326.) He also

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1 told the jury that the experts had examined the records. During his examination of 2 both experts, counsel established that both Dr. Maloney and Dr. Girsh reviewed all 3 of the records. (14 RT 347, 3581.) Counsel did not introduce these documents 4 into evidence, and he failed to ask both Dr. Maloney and Dr. Girsh to discuss the 5 contents of the records or to explain their significance. Counsel explained: 6 I know that I did not have a tactical reason for not introducing the 7 records or their substance into evidence. I thought they were more helpful to the defense than harmful and for that reason gave them to 8 the experts to review. Once the records were reviewed by the experts, the prosecutor was entitled to a copy and to cross-examine about their 9 contents if he chose to do so. That prospect did not bother me. 10 11 (1 CDD 24-25.) 12 The Court “‘must indulge [the] strong presumption’ that counsel ‘made all 13 significant decisions in the exercise of reasonable professional judgment.’” Cullen 14 v. Pinholster, 131 S.Ct. 1388, 1407 (2011) (quoting Strickland, 466 U.S. at 689- 15 90). However, “[i]t is imperative that all relevant mitigating information be 16 unearthed for consideration at the capital sentencing phase.” Caro, 165 F.3d at 17 1227. Moreover, counsel had a “duty to investigate and present mitigating 18 evidence of mental impairment.” Bean v. Calderon, 163 F.3d 1073, 1080 (9th Cir. 19 1998). The Court must consider whether “‘under the circumstances, the 20 challenged action[s] might be considered sound trial strategy.’” Pinholster, 131 21 S.Ct. at 1407 (2011) (quoting Strickland, 466 U.S. at 689). 22 This is not a case where “a defense attorney . . . reasonably decide[d] that 23 another strategy [was] in order.” Pinholster, 131 S.Ct. at 1407 (quoting 24 Strickland, 466 U.S. at 691). Nor is it a case where counsel chose a different 25 strategy “that any reasonably competent counsel would be compelled to select . . . 26 over the one actually used.” Crittendon v. Ayers, 624 F.3d 943, 969-70 (9th Cir. 27 2010). Counsel knew that Dr. Maloney could offer testimony about petitioner’s 28 many psychological problems, which Dr. Maloney outlined in his report.

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1 Dr. Girsh could offer testimony about Naomi’s inability to bond with petitioner. 2 Both experts could have testified about petitioner’s dysfunctional and unstable 3 home life and how that environment affected petitioner. Moreover, the preschool, 4 adoption and counseling records would have offered various contemporaneous 5 sources of information about petitioner’s early emotional problems and the very 6 unfortunate environment in which petitioner was raised. The documents would 7 have buttressed and augmented the expert testimony. Counsel’s failure to elicit 8 appropriate mitigating testimony from his experts and to present the documents he 9 had obtained and prepared for trial was deficient. 10 The record belies respondent’s assertion that counsel made a strategic 11 decision to avoid putting this evidence, particularly the documents, before the jury 12 for fear that it would open the door to evidence that petitioner had always been a 13 troubled child. Part of counsel’s approach was to show that petitioner’s emotional 14 problems began in childhood and that he came from a troubled home. The 15 information contained in the preschool, adoption and counseling records would 16 have shown just that. Moreover, counsel elicited testimony from Dr. Maloney that 17 petitioner suffered from emotional difficulties from an early age. Testimony from 18 Dr. Girsh and Dr. Maloney would have explained the source and effect of those 19 problems, as well as how those problems evolved for petitioner. The records 20 would have provided additional, corroborating information. Trial counsel 21 intended to explore these issues with Dr. Girsh, particularly the effect of Naomi’s 22 inability to bond with and care for petitioner. Counsel prepared Dr. Girsh 23 extensively for the penalty phase. In the end, Dr. Girsh’s testimony consumed just 24 twenty-six pages of transcripts, and counsel asked her no questions about Naomi’s 25 illness. “In this case, it is undisputed that [petitioner] had a right—indeed, a 26 constitutionally protected right—to provide the jury with the mitigating evidence 27 that his trial counsel . . . failed to offer.” Williams (Terry), 529 U.S. at 393. 28 Moreover, counsel had both experts testify that petitioner had the capacity to

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1 commit the crimes at the penalty phase when that issue was not the primary one 2 before the jury. The jury had already found petitioner guilty of murder, rape and 3 sodomy. Counsel focused the experts’ testimony on petitioner’s mental state at the 4 time of the crimes but failed to ask the experts about how petitioner’s home life, 5 familial stresses or psychological problems would have mitigated his culpability. 6 This approach made little, if any, sense. Counsel’s performance was deficient. 7 b. Prejudice 8 Petitioner must demonstrate prejudice flowing from counsel’s errors. 9 “[T]he question is whether there is a reasonable probability that, absent the errors, 10 the sentencer . . . would have concluded that the balance of aggravating and 11 mitigating circumstances did not warrant death.” Pinholster, 131 S.Ct. at 1408 12 (quoting Strickland, 466 U.S. at 695). The Court must “reweigh the evidence in 13 aggravation against the totality of available mitigating evidence.” Pinholster, 131 14 S.Ct at 1408 (quoting Wiggins, 539 U.S. at 534). 15 Trial counsel’s deficiencies certainly impacted the penalty phase. Trial 16 counsel’s failure to question Dr. Maloney about petitioner’s highly pathological 17 clinical profile, his “schizo-manic” condition and his many other psychological 18 problems was certainly prejudicial. The jury heard only that petitioner had 19 emotional problems and that he suffered from either borderline personality 20 disorder or antisocial personality disorder. Counsel failed to present other 21 evidence, in his possession, that would have explained other potential diagnoses, 22 the source of petitioner’s psychological problems and how petitioner’s difficulties 23 affected petitioner’s development and explained his conduct. Trial counsel elicited 24 just enough testimony from Drs. Girsh and Maloney so that the jurors knew 25 petitioner had some problems, but he did nothing to explain the extent or meaning 26 of those problems or to give them context. Counsel failed to put before the jury 27 testimony that petitioner suffered from psychological problems that would have 28 made him less culpable for the crimes. See, e.g., Mickey v. Ayres, 606 F.3d 1223,

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1 1239 (9th Cir. 2010) (“In the penalty phase, mental health evidence would explain 2 why, though he had capacity, he was less culpable.”) 3 Moreover, Dr. Girsh could have testified about how Naomi’s schizophrenia 4 affected petitioner. Dr. Clausen testified at the evidentiary hearing that Naomi’s 5 schizophrenia would have made it impossible for petitioner to form a healthy 6 attachment to his mother, resulting in his inability to develop basic trust. (Clausen 7 Decl. at 93-96,¶¶ 235-40.) Naomi’s severe mental illness also would have 8 prevented petitioner from developing a sense of autonomy, initiative and self- 9 identity. (Id. at 96-103, ¶¶ 241-49, 251.) While the jury heard testimony that 10 Naomi was schizophrenic, that label did not explain to them the realities of how 11 her illness would have impacted petitioner’s childhood. The jury was deprived of 12 readily available expert testimony that would have allowed the jurors to make 13 sense of the evidence presented. Caro v. Calderon, 165 F.3d at 1227. 14 Petitioner’s emotional struggles were well documented, starting with 15 preschool and continuing during the Hernandez family’s attempt to adopt a second 16 child. Counsel sought records that captured petitioner’s emotional tumult as a 17 preschooler and young child, gave them to his experts for review and prepared 18 them as exhibits for trial. Nevertheless, counsel failed to question the experts 19 about these issues and failed to seek to admit the documents into evidence. The 20 records would have allowed the experts to explain the impact of Naomi’s 21 schizophrenia on petitioner. Counsel also could have used the records to give 22 contemporaneous, illustrative examples of Naomi’s deficient mothering and the 23 consequent behavioral and emotional difficulties petitioner displayed. Expert 24 testimony using the documents would have given context to petitioner’s life. 25 Nevertheless, while counsel’s failures to present evidence he had in his 26 possession certainly prejudiced petitioner, it is not reasonably probable that 27 appropriate expert testimony, admitted together with the omitted records, would 28 have caused the jury to come to a different verdict. While significant, the

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1 prejudicial effect of counsel’s deficiencies does not rise to the level of prejudice 2 found in the many cases granting relief. See, e.g., Rompilla, 545 U.S. at 390-93 3 (granting relief where counsel failed to investigate and present evidence of 4 petitioner’s abusive and neglectful childhood and petitioner’s organic brain 5 damage); Williams (Terry), 529 U.S. at 395-99 (finding ineffectiveness where 6 counsel failed to investigate and present graphic evidence of petitioner’s 7 nightmarish childhood, including severe beatings and foster care while petitioner’s 8 parents served prison terms for criminal neglect); Stankewitz v. Woodford, 365 9 F.3d 706, 723 (9th Cir. 2004) (granting evidentiary hearing on claim of IAC where 10 counsel failed to investigate and present “an excess of privation and abuses” 11 experienced by petitioner as a child, including severe beatings, foster care and 12 organic brain damage to the point of borderline mental retardation); Ainsworth, 13 268 F.3d at 874-78 (granting petition where counsel failed to investigate, develop 14 and present evidence of petitioner’s troubled background and emotional 15 instability); Wallace v. Stewart, 184 F.3d 1112, 1115-16 (9th Cir. 1999) (granting 16 petition where counsel conducted no factual investigation into petitioner’s very 17 dysfunctional background); Seidel v. Merkle, 146 F.3d 750, 756 (9th Cir. 1998) 18 (granting petition upon counsel’s failure to investigate and present a mental illness 19 defense at penalty); compare Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 20 1987) (finding counsel’s decision not to present mitigating evidence reasonable 21 and, assuming deficiency, no prejudice). While petitioner has not demonstrated 22 prejudice sufficient to undermine confidence in the penalty verdict, the Court will 23 consider counsel’s deficiencies in the cumulative error analysis. 24 Lastly, petitioner alleges as part of Claim 5(C)(9) that trial counsel failed to 25 call a youth authority counselor to testify that petitioner had not been dangerous 26 when previously incarcerated. Both Dr. Girsh and Dr. Maloney testified that 27 petitioner likely would do well while incarcerated. Evidence from an additional 28 person would have been cumulative and may have opened the door to negative

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1 evidence about petitioner’s juvenile violations. Counsel was not deficient, nor did 2 his alleged deficiency cause petitioner prejudice. 3 Accordingly, the Court DENIES Claims 5(C)(1), 5(C)(2), 5(C)(4) and 4 5(C)(9) but will consider counsel’s deficiencies in the cumulative error analysis. 5 6. Counsel’s failure to investigate and present evidence of 6 petitioner’s neurological impairment and to obtain a 7 complete social and medical history of petitioner (Claims 8 5(C)(7) & 5(D)(32)) 9 In Claim 5(C)(7), petitioner contends that trial counsel failed to investigate 10 and develop evidence of petitioner’s neurological and mental impairment, 11 including by failing to use petitioner’s expert witnesses effectively on the issue of 12 petitioner’s mental state at the time of the offenses. In Claim 5(D)(32), petitioner 13 asserts that trial counsel inadequately prepared for petitioner’s defense. Counsel’s 14 alleged shortcomings include: (1) failure to retain a social historian; (2) failure to 15 obtain a complete medical history or neurological examination of petitioner; 16 (3) failure to consult with experts about the impact of (a), physical, sexual and 17 emotional abuse and neglect, (b) drug and alcohol abuse (c) petitioner’s father’s 18 views about racism and (d) being an adopted child of mixed-race heritage; and 19 (4) failure to provide all relevant information to experts. 20 a. Deficiency 21 As discussed, some evidence in the record may have suggested to counsel 22 that a neurological examination of petitioner was unnecessary. Every expert 23 consulted found that petitioner had the capacity to commit rape and murder. 24 Dr. Girsh diagnosed petitioner with antisocial personality disorder but also 25 testified that petitioner might meet the criteria for antisocial personality disorder. 26 At the same time, Dr. Girsh also told counsel before trial that there was 27 some indication of an organic, neurological basis for petitioner’s behavior and that 28 petitioner suffered from dyslexia. (9 CDD at P00427 (Exh. L-7). Dr. Maloney

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1 told counsel that petitioner had been psychotic, that petitioner suffered from 2 potentially serious psychological problems and that he had a highly pathological 3 profile. (9 CDD at P00738 (Exh. L-5); JTD P00829.) Ultimately, Dr. Maloney 4 testified at penalty that nothing suggested that petitioner lacked the capacity to 5 commit the crimes. (14 RT 3473.) 6 Ample data did exist, however, that was reasonably available to counsel and 7 that may have influenced both counsel’s approach to trial and the experts’ 8 evaluations of petitioner. Counsel failed to retain a social historian or to otherwise 9 investigate petitioner’s background, and he also failed to obtain petitioner’s 10 complete medical history. Due to counsel’s failure to conduct basic investigation, 11 none of the experts who evaluated petitioner before trial reviewed records 12 regarding petitioner’s birth family, or social history information from petitioner’s 13 adopted family, preschool teacher and others. Dr. Maloney and Dr. Girsh knew 14 that petitioner had been referred for a neurological examination at age five, that he 15 had performed poorly on psychological tests and that he engaged in behavior 16 suggesting neurological or psychiatric problems during his preschool years. 17 However, none of the experts knew the following key information: that petitioner 18 inherited a genetic vulnerability to mental illness; that he was born to a 14-year-old 19 mother who abused drugs and alcohol during her pregnancy and who was in a 20 violent relationship; that petitioner’s birth father was unemployed, incarcerated 21 and suffered from serious mental illness; that petitioner was delivered with the 22 help of forceps, which are known to cause brain injury; that petitioner suffered 23 many head injuries as a child; that petitioner’s preschool teacher was very 24 concerned about petitioner and his home life; that petitioner was described as a 25 troubled and hyperactive child; that petitioner had endured the forcible 26 administration of enemas and other abuse at the hands of his adoptive parents; or 27 that petitioner was largely neglected by both his parents. In addition, various 28 indicators suggested that petitioner suffered from neuropsychiatric impairments.

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1 (Gur 6/8/04 Decl. at 4, ¶ 9.) Petitioner’s upbringing included child abuse and 2 neglect, both psychological and physical, which can lead to brain damage or 3 dissociative disorders. (Id. at 5, ¶ 9.) Petitioner also had poor impulse control and 4 poor scholastic performance despite normal IQ scores. (Id.) 5 “Counsel has a duty to make reasonable investigations or to make a 6 reasonable decision that makes particular investigations unnecessary.” Strickland, 7 466 U.S. at 691. “In assessing counsel’s investigation, [the Court must] conduct 8 an objective review of [his] performance, measured for reasonableness under 9 prevailing professional norms, which includes a context-dependent consideration 10 of the challenged conduct as seen from counsel’s perspective at the time.” 11 Wiggins v. Smith, 539 U.S. at 523. 12 Here, “[c]ounsel’s failure to investigate [petitioner’s] mental condition 13 cannot be construed as a trial tactic.” Evans v. Lewis, 855 F.2d 632 (9th Cir. 14 1988). At the time of petitioner’s trial, which took place in 1983, competent 15 counsel had a duty to investigate a defendant’s background. See, e.g., Penry, 492 16 U.S. at 319 (holding, in reviewing a case tried in March of 1980, that “evidence 17 about the defendant’s background and character is relevant because of the belief, 18 long held by this society, that defendants who commit criminal acts that are 19 attributable to a disadvantaged background, or to emotional or mental problems, 20 may be less culpable than defendants who have no such excuse”), overruled on 21 other grounds in Atkins v. Virginia, 536 U.S. 304 at 321 (2002); Bean, 163 F.3d at 22 1080 (“[W]e have previously recognized an attorney’s duty to investigate and 23 present mitigating evidence of mental impairment in the context of a 1979 capital 24 sentencing hearing.”) (citing Evans v. Lewis, 855 F.2d 631, 636-37 (9th Cir. 25 1988).); Cf. Bean, 163 F.3d at 1080 (“[T]he ineffectiveness at issue in this case did 26 not arise from failure to employ novel or neoteric tactics. Rather, it resulted from 27 inadequacies in rudimentary trial preparation and presentation: providing experts 28 with requested information, performing recommended testing, conducting

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1 adequate investigation, and preparing witnesses for trial testimony. These were 2 not alien concepts in 1981, but were an integral thread in the fabric of 3 constitutionally effective representation.”) 4 Counsel’s failure to investigate petitioner’s background and his medical 5 history were not sound trial strategy. See, e.g., Williams (Tery), 529 U.S. at 395- 6 99 (holding that counsel’s failure to investigate and present evidence of 7 defendant’s mental defect and social history constitutes deficient performance); 8 Caro, 280 F.3d at 1254 (“[C]ounsel’s failure to investigate and provide 9 appropriate experts with the information necessary to evaluate [petitioner’s] 10 neurological system for mitigation constituted deficient performance within the 11 meaning of Strickland.”); see also Frierson v. Woodford, 463 F.3d 982, 989 (9th 12 Cir. 2006) (“The imperative to cast a wide net for all relevant mitigating evidence 13 is heightened at a capital sentencing hearing because ‘the Constitution prohibits 14 imposition of the death penalty without adequate consideration of factors which 15 might evoke mercy.’”) (quoting Caro, 165 F.3d at 1227). 16 Moreover, counsel relied in part on a clinical psychologist retained by prior 17 counsel. While trial counsel did retain an additional clinical psychologist, he 18 failed to conduct enough investigation to make an informed decision about what 19 sorts of other experts to consult or about what information to give the experts he 20 did retain. Counsel has an obligation to conduct an investigation that will allow 21 counsel to figure out what sort of experts to consult, and then counsel must present 22 those experts with relevant information. Caro, 165 F.3d at 1226-27. Counsel’s 23 inadequate investigation resulted in counsel failing to consult a neurologist, 24 neuropsychologist or neuropsychiatrist, or to arrange for a neurological 25 examination of petitioner, despite information in counsel’s file suggesting the 26 utility of such an approach. Counsel had no tactical reason for not requesting a 27 neurological examination. (1 CDD 34; see also 1 CDD 34-35 (“Evidence of 28 neurological impairment is the type of evidence I wanted because it would have

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1 helped to explain and mitigate Francis’[s] state of mind at the time of the 2 killings.”)) Counsel owed a duty to locate experts who could explain medical or 3 neurological issues to the jury. For example, 4 Although the defendant in Caro was examined by four experts 5 prior to trial, including a medical doctor, a psychologist, and a psychiatrist, none of whom indicated that the defendant suffered from 6 mental impairment severe enough to constitute diminished capacity, [the Ninth Circuit] concluded that defense counsel was ineffective for 7 failing to consult an appropriate expert with expertise in neurology or toxicology. [Petitioner] had been exposed to high levels of toxic 8 chemicals and pesticides as a child, and because none of the experts were neurologists or toxicologists, none was able to conduct the 9 neurological testing needed to evaluate the effects that the pesticides 10 and chemicals had on [petitioner’s] brain. 11 Frierson, 463 F.3d at 992 (internal quotation marks omitted). Likewise, petitioner 12 was exposed to alcohol, drugs and violence in utero; was delivered with the help of 13 forceps; suffered many accidents as a child, many of them involving head trauma; 14 was abused by his parents; and began abusing alcohol and drugs in elementary 15 school. Also, readily available information that counsel could have obtained 16 through an adequate investigation would have raised additional questions about 17 whether petitioner suffered from neurological problems. None of the experts was 18 capable of conducting the neurological testing necessary to evaluate the effects of 19 these circumstances on petitioner’s brain. Counsel performed deficiently. See 20 Kenely v. Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991) (“Failing to interview 21 witnesses or discover mitigating evidence relates to trial preparation and not trial 22 strategy.”); cf Bean v. Calderon, 163 F.3d at 1079 (Counsel’s “presentation of 23 the[] mental health experts’ testimony did not arise from the requisite informed 24 judgment.”) (internal quotation marks omitted). Counsel also failed to elicit 25 testimony at trial regarding the impact of Naomi’s schizophrenia on petitioner. 26 (See, supra, Discussion of Claims 5(B)(3)(c) & 5(C)(3). Moreover, although 27 counsel testified that he knew petitioner had been abused by his parents, counsel 28 apparently did not explore this issue with his experts or elicit testimony regarding

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1 the abuse at the penalty phase. 2 b. Guilt phase prejudice 3 Petitioner argues that had counsel investigated petitioner’s mental and 4 neurological impairments and conducted a social history, then counsel could have 5 presented a guilt phase defense that petitioner was unable to form the requisite 6 intents. Petitioner has failed to show guilt phase prejudice. 7 Petitioner suffers from brain damage that is likely organic, meaning that it 8 was caused by a head injury, either in utero, later or both. (Gur 2/8/05 Decl. at 14, 9 ¶ 27.) Petitioner’s mother abused substances and was in a violent relationship 10 during her pregnancy, petitioner was delivered with the help of forceps and 11 petitioner was involved in many incidents of head trauma as a child, adolescent 12 and teen. (Id.) Petitioner’s congenital brain damage probably was complicated by 13 the home life in which he was raised. (Id. at 10, ¶ 18.) The brain damage affects 14 various regions of petitioner’s brain and causes petitioner to struggle with verbal 15 memory impairment and interpreting emotional information, both of which are 16 exacerbated by extreme emotion or stress. (Id. at 10-11, ¶ 18-20.) 17 Neuropsychological tests available in 1982 and 1983 would have uncovered 18 these impairments, but no one conducted a neuropsychological evaluation of 19 petitioner at the time of trial. (Id. at 11-12, ¶¶ 21- 22.) The limited testing given 20 to petitioner by Dr. Maloney was not equivalent to “a comprehensive 21 neuropsychological evaluation under the then-prevailing professional standards.” 22 (Id. at 12, ¶ 22.) According to Dr. Gur, petitioner’s brain damage existed at the 23 time of the crimes and prevented petitioner from understanding or responding 24 appropriately to his victims’ expressions of resistance and fear. His inability to 25 perceive emotion accurately makes it difficult for petitioner to judge things 26 correctly, especially in an emotionally volatile situation. (Id. at 15, ¶ 29.) 27 Moreover, Dr. Gur concluded that petitioner’s brain damage caused petitioner to 28 be in a dissociative state when he committed the crimes, preventing him from

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1 forming the intent to commit murder and rape. Petitioner’s dissociation would 2 have helped explain petitioner’s detailed confession, his inability to recall the 3 details of the crimes during his testimony and his persistent inability to explain 4 why he committed the crimes. (Id. at 17, ¶ 35.) Specifically, evidence of 5 dissociation would have allowed counsel to argue that petitioner did not actually 6 remember the details of the crime, but, instead, that the police fed him much of the 7 information following his arrest. Petitioner subsequently confessed in great detail. 8 Despite his confession, petitioner could not in fact remember many things about 9 the crime because he was in a dissociative state. Accordingly, counsel could argue 10 that petitioner was testifying truthfully at the penalty phase when he stated that he 11 could not recall many things about the crimes. 12 Dr. Lewis also testified that petitioner’s capacity to form the specific intent 13 to rape and kill was substantially impaired on the night of the crimes due to “a 14 constellation of neuropsychiatric vulnerabilities . . . and extreme intra-family 15 stressors . . . which engendered his extreme[,] uncontrollable[,] violent acts. The 16 knowledge of these biopsychosocial vulnerabilities and the appreciation of their 17 role in [the] offenses are vital to understanding his compromised mental 18 functioning on the nights of the murder[s].” (Lewis 8/13/03 Decl. at 37, ¶ 86.) 19 This evidence certainly could have helped at trial. Evidence that petitioner 20 could not in fact form the specific intent to murder or rape would have provided a 21 more solid defense than one relying only on petitioner’s intoxication alone. While 22 petitioner has put forth evidence that could have caused at least one juror to vote 23 differently, petitioner has not demonstrated by a reasonable probability that this 24 new evidence would have been successful at the guilt phase. Even if petitioner 25 used experts to explain why the confession was detailed but petitioner later could 26 not recall much at trial, a reasonable jury likely would have rejected a diminished 27 capacity defense. The very similar factual circumstances of the crimes, taking 28 place just a week apart, could support a conclusion that petitioner was able to

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1 premeditate, deliberate or plan, all of which undercut a diminished capacity 2 defense. Finally, within a year and a half of trial, a voter referendum changed the 3 law to eliminate the dense of diminished capacity due to mental disease, defect or 4 mental disorder. See Cal. Penal Code § 28. That context may have lessened the 5 likelihood of success of a diminished capacity defense at the guilt phase. 6 Accordingly, the Court DENIES Claims 5(C)(7) and 5(D)(32) to the extent 7 they raise guilt phase claims but will consider counsel’s deficiencies in the 8 cumulative error analysis. 9 c. Penalty phase prejudice 10 In evaluating prejudice at the penalty phase, the Court must weigh the 11 evidence in aggravation against the evidence in mitigation, including the evidence 12 counsel could have presented but did not. Petitioner must show a reasonable 13 probability of a different verdict. Williams (Terry), 529 U.S. at 398. 14 “More than any other singular factor, mental defects have been respected as 15 a reason for leniency in our criminal justice system. Caro, 280 F.3d at 1258. 16 While counsel presented some evidence of petitioner’s emotional problems, that 17 testimony did not come close to painting an accurate picture of petitioner’s 18 neurological deficits. Dr. Gur testified that petitioner’s brain damage has greatly 19 impacted the way petitioner both perceives the world and functions in 20 relationships. Petitioner harbors a skewed picture of reality. He suffers from a 21 profound impairment in his ability to perceive emotions accurately, often 22 mistaking happiness and sadness for anger and fear. Petitioner has suffered from 23 this problem as early as preschool, and it is heightened when he is experiencing 24 extreme emotion or stress. Petitioner attempts to cope with his inability to 25 perceive emotions accurately by using other cues, but this coping mechanism is 26 quite limited due to the mental illness of petitioner’s adoptive parents. (Gur 2/8/05 27 Decl. at 12, ¶¶ 23-24.) 28 Moreover, petitioner’s brain damage also may explain his inability to recall

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1 the details of the crime when questioned by the police. Petitioner testified in his 2 deposition that the police spent several hours discussing the crime and showing 3 him pictures before recording his detailed statement. However, petitioner’s 4 penalty phase testimony was replete with assertions that petitioner could not 5 remember what happened. (Id. at 15-16, ¶¶ 30-32.) The clinical data suggest that 6 petitioner actually cannot recall significant parts of the crime, not that he is being 7 evasive or feigning forgetfulness. (Id. at 16, ¶ 31.) Dr. Clausen also opined that 8 petitioner dissociated as a coping mechanism and that he dissociated during the 9 crimes. (Clausen Decl. at 188-124, ¶¶ 284-89, 291-92, 294-96; see also Lewis 10 8/15/03 Decl. at 33-34, ¶ 82 (opining that the circumstances of Ryan’s murder 11 suggest that petitioner was in a dissociative state).) 12 Counsel’s failure to investigate and present petitioner’s deeply troubled 13 home life was also quite damaging. As part of the evidentiary hearing, several of 14 petitioner’s experts have created social histories. Dr. Clausen testified that 15 petitioner has experienced recurring trauma, from his conception through the 16 crime. This trauma included having a neglectful primary caretaker afflicted with 17 schizophrenia and a paranoid, oft-absent father. She discussed, at length, the 18 impact of petitioner’s schizophrenic mother on petitioner. Dr. Lewis diagnosed 19 petitioner with bipolar mood disorder. (Lewis 8/15/03 Decl. at 36, ¶ 84.) 20 Counsel’s failure to investigate petitioner’s background and medical history 21 and to have a neurological exam conducted resulted in a haphazard, incoherent 22 mitigation case. Counsel failed to put on evidence that would have served 23 counsel’s stated goal in his penalty phase opening argument: to “indicate how the 24 defendant go to be where the defendant is” and “the type of individual that the 25 defendant was at the time of the commission of the offenses and potentially the 26 type of individual he is today.” (13 RT 34326.) 27 Counsel could have presented evidence, however, that would have 28 explained how petitioner became who he was at the time of the crimes. Dr. Gur

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1 explained the effect of petitioner’s brain damage this way: 2 3 I would think that he started off with a bad brain because of his biological background. Growing up as a fetus in a 14-year-old girl 4 who abuses alcohol during pregnancy, I mean, we already know that children born to 14 year olds and 15 year olds or even 16 year olds 5 have significant deficits as a group. So some brain damage comes just right from there. 6 Mother consuming alcohol, the more we know about the effects 7 of alcohol during pregnancy, the more we find that they are much more devastating than we ever thought . . . . Then you have the 8 forceps delivery, and then you have evidence of child neglect, abuse, physical punishments, inept parenting by the adoptive parents. 9 You then have a series of head injuries from motorcycle 10 crashes and other forms of head injuries. You add to that early substance abuse, which often happens with those kids. They know 11 there is something screwed up about their brains, so a lot of times they medicate themselves. Street drugs make them feel better in the best 12 case or give them a rational explanation for their abnormal thought processes in the worst case. And they, themselves, as I mentioned, they go 13 straight to the frontal lobe and retard the development of the frontal lobe. 14 You put all of that together, and the mystery becomes how he managed to reach 18 without committing serious crimes before that? 15 16 (Gur Depo. at 461.) Dr. Gur also touched on the impact of petitioner’s home life: 17 “At best, I understand, his mother was ineffective and withdrawn and eventually 18 left the home. And his father was prone to outbursts of anger and rage and was 19 abusive psychologically and physically. So you put that factor in with someone 20 who has the vulnerability that Francis had growing up, and it’s a prescription for 21 disaster. It’s a prescription for someone who will really never develop normally 22 and will not have much of a chance to develop the mental and intellectual and 23 personal capacity to cope with life’s stresses.” (Gur Depo. at 447; see also Lewis 24 8/15/03 Decl. at 31, ¶ 77 (testifying that “[i]t is hard to imagine how a more 25 genetically resilient child could have weathered the family environment and 26 adapted appropriately to society, much less a child with Francis’s inherent 27 vulnerabilities to mental illness.”); 2 Lewis Depo. at 382 (testifying that a 28 vulnerable child raised in a psychotic environment with incredible stress creates an

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1 aberrant human being who cannot function as others do).) 2 In addition, counsel completely missed an opportunity to tell a narrative that 3 could have evoked mercy. As Dr. Clausen testified: 4 5 The story of Francis Hernandez is a harrowing tale of genetic and environmental risk, extensive child abuse and profound child 6 neglect, chronic traumatization by a severely mentally ill primary caretaker in the context of a markedly impaired co-parent unable 7 and/or unwilling to provide minimal protection, and a baffling series of missed opportunities for intervention and tertiary prevention by family 8 members and mental health, education, and juvenile justice professionals. As was feared by and foreshadowed with the comments of his closest family 9 members, Francis lived a childhood that was literally a recipe for disaster and tragedy. His genetic and adoptive families, together with the 10 community in which he lived, produced an adolescent entirely unequipped to understand his social world, negotiate interpersonal relationships, 11 appropriately manage strong emotions, and seek help for himself. He was rejected in utero, abandoned at birth, neglected during infancy, abused 12 throughout childhood, and ignored during adolescence. It is impossible to place oneself in the shoes of Francis Hernandez at the time of the capital 13 crimes for which he has been convicted simply because the rest of us cannot possibly imagine the daily hell in which he spent his life. 14 15 (Clausen Decl. at 127, ¶ 305; see also Clausen Depo at 119 (“I see more the 16 psychotic mothering that he received growing up as the most central factor in 17 developing who he was as an individual, and resulting in who he was and what 18 sorts of coping strategies he had, and the resources he didn’t have; that the 19 physical and sexual abuse and the role that his father played and the role that his 20 genetic history played were all important and significant, but the most central 21 feature about what was going on was the psychotic mother.”).) 22 Counsel’s failure to conduct an adequate investigation into petitioner’s 23 background, his medical history and his neurological impairments had serious 24 consequences at the penalty phase. Counsel’s failures deprived petitioner of the 25 effective assistance of counsel. See, e.g., Rompilla, 545 U.S. at 390-93 (granting 26 petition where counsel failed to uncover evidence that petitioner suffered from 27 organic brain damage, that petitioner often had no a caretaker as a teenager and 28 that the house was filthy); Williams (Terry), 529 U.S. at 395-99 (finding counsel

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1 ineffective upon failing to investigate and present evidence of petitioner’s 2 nightmarish childhood); Ainsworth, 268 F.3d at 874-78 (granting relief where 3 counsel failed to investigate and present evidence of petitioner’s troubled 4 background and emotional instability); Wallace v. Stewart, 184 F.3d 1112, 1115- 5 16 (9th Cir. 1999) (granting petition where counsel conducted no factual 6 investigation into petitioner’s dysfunctional background). Petitioner has 7 demonstrated prejudice sufficient to undermine confidence in the penalty verdict, 8 by showing a likelihood of a different verdict at the penalty phase. 9 Accordingly, the Court GRANTS Claims 5(C)(7) and 5(D)(32) as to the 10 penalty phase and will also consider counsel’s deficiencies in the cumulative error 11 analysis. 12 7. Counsel’s failure to challenge petitioner’s competence to 13 confess, testify and stand trial (Claim 5(D)(26)) 14 In Claim 5(D)(26), petitioner contends that trial counsel failed to investigate 15 the gravity of petitioner’s mental, emotional and psychological impairment before, 16 during and after the crime, as well as during his confinement in county jail. As a 17 result, trial counsel failed to challenge petitioner’s competence to give a statement 18 to the police, to testify and to stand trial. 19 “It has long been accepted that a person whose mental condition is such that 20 he lacks the capacity to understand the nature and object of the proceedings against 21 him, to consult with counsel, and to assist in preparing his defense may not be 22 subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975). The test for 23 competence to stand trial is whether the defendant “has sufficient present ability to 24 consult with his lawyer with a reasonable degree of rational understanding—and 25 whether he has a rational as well as factual understanding of the proceedings 26 against him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam) 27 (internal quotation marks omitted). “[C]ompetence to stand trial does not consist 28 merely of passively observing the proceedings. Rather, it requires the mental

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1 acuity to see, hear and digest the evidence, and the ability to communicate with 2 counsel in helping prepare an effective defense.” Odle v. Woodford, 238 F.3d 3 1084, 1089 (9th Cir. 2001). “Although no particular facts signal incompetence, 4 suggestive evidence includes a defendant’s demeanor before the trial court, 5 previous irrational behavior, and available medical evaluations.” Moran v. 6 Godinez, 57 F.3d 690, 695 (9th Cir. 1994). 7 “[A]lthough retrospective competency hearings are disfavored, they are 8 permissible whenever a court can conduct a meaningful hearing to evaluate 9 retrospectively the competency of the defendant.” Id. at 696 (internal citations 10 omitted). “[M]edical reports contemporaneous to the time of the initial hearing 11 greatly increase the chance for an accurate retrospective evaluation of a 12 defendant’s competence.” Id.; see also Deere v. Woodford, 339 F.3d 1084, 13 1086–87 (9th Cir. 2003) (pointing to a doctor’s examination of petitioner within 14 several days of guilty plea as particularly probative of his mental status at trial). 15 Petitioner has submitted a great deal of evidence concerning his mental state 16 as part of the evidentiary hearing. This evidence includes testimony that petitioner 17 suffers from bipolar mood disorder and organic brain damage. (Lewis 8/15/03 18 Decl. at 34-36, ¶ 84; Gur 2/8/05 Decl. at 10, ¶ 18.) Brain damage impairs 19 petitioner’s ability to organize and recall information, causes petitioner to 20 misperceive emotions and makes it difficult for petitioner to modulate his 21 emotional response appropriately. (Gur 2/8/05 Decl. at 10-11, ¶¶ 18-20.) This 22 evidence does not suggest, however, that petitioner lacked the capacity to 23 understand that he was being tried for capital murder and faced the death penalty. 24 While many of petitioner’s experts have testified that he lacked the capacity to 25 form the requisite intents at the time of the crime, none has testified that he was 26 incompetent to stand trial. (Lewis 8/15/03 Decl. at 37, ¶ 87; 6/8/04 Decl. at 15-17, 27 ¶¶ 30-32, 35.) Moreover, none of the experts who evaluated petitioner at the time 28 of trial found him incompetent. Petitioner has not met his burden of establishing

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1 by a preponderance of the evidence that he was incompetent to stand trial. 2 Accordingly, the Court DENIES Claim 5(D)(26). 3 8. Counsel’s decision to put petitioner on the stand at the 4 penalty phase (Claim 5(D)(27)) 5 In Claim 5(D)(27), petitioner contends that trial counsel made a misguided, 6 inappropriate and ill-considered decision to put petitioner on the stand during the 7 penalty phase. Petitioner also argues that his mental condition caused him to 8 appear unsympathetic and cold, which alienated the jury. Furthermore, trial 9 counsel exacerbated the prejudice to petitioner by failing to investigate and present 10 mental health evidence that would have explained petitioner’s affect. 11 Counsel moved for separate juries for the guilt and penalty phases because 12 he wanted petitioner to testify at the guilt phase. Counsel thought that petitioner 13 would need to testify at the guilt phase to establish the amount of alcohol he 14 consumed before the crimes. However, counsel did not want petitioner to testify at 15 the penalty phase due to his appearance, his ability to testify and the content of his 16 testimony. (10 CDD 40-41.) The trial court denied the motion. 17 Inexplicably, counsel put petitioner on the stand at the penalty phase. 18 Counsel wanted petitioner to testify about his background and home life, but 19 counsel asked only about the facts of the crime. (1 CT 289; 10 CDD 40-43; 13 RT 20 3398-3415.) On cross examination, the prosecutor questioned petitioner 21 extensively about the facts of the crime. (13 RT 3416-65; 14 RT 3486-3551.) 22 Petitioner testified countless times that he could not remember many of the 23 gruesome details of the crimes to which he had confessed, making him seem cold, 24 callous and uncaring. (See generally, 13 RT 3416-65; 14 RT 3486-3551.) He also 25 testified that neither victim was crying or upset during the crimes. (13 RT 3432- 26 33; 14 RT 3534-3.) Petitioner’s testimony, including lengthy cross examination, 27 consumed much more time than any other penalty phase witness. 28 Counsel performed incompetently. First, counsel put petitioner on the stand

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1 at the penalty phase, despite his earlier decision that petitioner would not make a 2 good penalty phase witness. This is not a case where counsel “could not have 3 predicted just how damaging placing [petitioner] on the stand would be.” Allen v. 4 Woodford, 395 F.3d 979, 1000 (9th Cir. 2005). No rational, reasoned basis 5 supported this decision. Moreover, counsel questioned petitioner only about the 6 facts and circumstances of the crime, rather than about petitioner’s personal 7 background. See Harris v. Wood, 64 F.3d 1432, 1437 (9th Cir. 1995) (finding 8 deficient counsel’s failure to question defendant in accordance with counsel’s 9 purpose in calling defendant to testify). Even worse, petitioner’s testimony that he 10 could not remember many details of the crime made petitioner seem unremorseful 11 and cruel. Petitioner’s testimony that the victims were not crying or upset during 12 the crime were statements that “a reasonable jury could have easily chosen to 13 disbelieve” as “self-serving uncorroborated testimony.” United States v. 14 Nicholson, 677 F.2d 706, 709 (9th Cir. 1982); see also United States v. Cisneros, 15 448 F.2d 298 (9th Cir. 1971) (“A trier of fact is not compelled to accept and 16 believe the self-serving stories of vitally interested defendants. Their evidence 17 may not only be disbelieved, but from the totality of the circumstances, including 18 the manner in which they testify, a contrary conclusion may be properly drawn.”) 19 Counsel’s performance fell below an objective standard of reasonableness. 20 Petitioner’s penalty phase testimony, which focused exclusively on the 21 circumstances of the crime, caused petitioner unmitigated prejudice. Petitioner’s 22 testimony consumed the bulk of the evidence presented at the penalty phase. As 23 counsel predicted before trial, petitioner’s ability to testify and the content of his 24 testimony did nothing to mitigate the crime. Petitioner appeared callous and 25 dishonest, and the prosecutor argued those points. (14 RT 3636-64 (“[H]e was not 26 telling the truth. Either—when he says[,] [‘]I don’t remember,[’] he is either such 27 a callous individual that he really doesn’t remember—what would a normal person 28 remember concerning what happened in this case? A normal person would

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1 probably think about it constantly, have nightmares about it, and relive it every 2 moment of the day. Is that the type of individual we have . . . or a person who 3 isn’t and won’t admit what he did and who lies about it when he say[s], ‘I don’t 4 remember. After all it was 20, 25 months ago[.]”)) 5 Moreover, petitioner’s testimony did not make him seem less culpable. In 6 fact, his repeated assertions that he could not recall the facts of the crime and his 7 testimony that the victims did not cry or seem upset made him seem markedly 8 more culpable than less. Counsel also failed to take other steps that would have 9 ameliorated the harm caused by petitioner’s testimony, and those errors 10 exacerbated the situation. For example, counsel could have had Dr. Maloney 11 testify about petitioner’s psychological problems, and that testimony might have 12 explained petitioner’s odd affect while testifying. (JTD at P00829-30; see also 13 Discussion of Claim 5(C)(1), 5(C)(2), supra.) Moreover, if counsel had requested 14 a neurological examination of petitioner, an expert could have testified about 15 petitioner’s inability to accurately perceive emotions and to modulate his 16 emotional response appropriately. (Gur 2/8/05 Decl. at 10-11, ¶¶ 18-20; see also 17 Discussion of Claim 5(C)(7), supra.) Such testimony would have helped to 18 explain petitioner’s testimony that the victims were not upset or that he did not 19 know they were upset. Finally, if counsel had conducted an adequate investigation 20 into petitioner’s background, he could have put other witnesses on the stand to 21 discuss petitioner’s background. Many lay witnesses were able and willing to 22 discuss petitioner’s life, other than those who offered thin pleas for mercy at the 23 penalty phase. (See, e.g., declarations of Barbara Graziano (maternal aunt), Joy 24 Turner (preschool teacher), Judy Williams (ex-girlfriend’s mother), Morris 25 Silverstein (childhood friend); see also Discussion of Claims 5(B)(3)(C) and 26 5(C)(3), supra.) An adequate investigation also would have revealed evidence that 27 petitioner had a history of dissociation. Expert testimony that he was in a 28 dissociative state at the time of the crimes would have explained petitioner’s

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1 inability to recall the details of the crimes at the penalty phase. (Clausen Decl. at 2 118-24, ¶¶ 284-89, 291-92, 294-96; Lewis 8/15/03 Decl. at 27-28, ¶¶ 68-70 & 36- 3 37, ¶ 85-87; Gur 6/8/04 Decl. at 17, ¶ 35; see also Discussion of Claims 5(C)(7), 4 5(D)(32), supra.) 5 Counsel’s decision to put petitioner on the stand, without any psychological 6 evidence to explain petitioner’s demeanor, was utterly devastating. 7 Accordingly, the Court GRANTS Claim 5(D)(27). 8 C. Other IAC Claims 9 1. Counsel’s failure to challenge the State’s theory that Kathy 10 Ryan was kidnapped (Claim 5(D)(2)) 11 In Claim 5(D)(2), petitioner alleges that trial counsel failed to challenge the 12 State’s contention that Kathy Ryan was kidnapped from her home on the evening 13 of her murder, as evidence tending to show that Ryan willingly met petitioner on 14 the night of the murder would have supported petitioner’s claim that Ryan 15 consented to having sex with him. 16 Again, petitioner must show that counsel performed deficiently and that this 17 deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 18 Petitioner cannot show deficiency or prejudice. Kathy Ryan’s stepmother, 19 Barbara Ryan, offered the following testimony at trial: At about 5:30 the morning 20 Kathy’s body was discovered, Barbara awoke to find the living room lights on and 21 the front sliding glass doors and screens open. She went to Kathy’s bedroom and 22 found that Kathy’s lights were on, Kathy’s bed was still made and Kathy’s 23 bedroom window was open with no screen in it. A few hours later, Barbara 24 discovered Kathy’s pool cue and jacket on the living room floor near the open 25 sliding glass door. On her way to her car, Barbara found Kathy’s purse outside by 26 the pool with the contents spilled out on the ground. (8 RT 1831-35.) 27 Given this evidence, petitioner can show neither deficiency nor prejudice. 28 Counsel could have concluded that it would have been futile, and potentially

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1 damaging to counsel’s credibility, to attempt to argue that Kathy Ryan left 2 willingly with petitioner. See Rupe v. Wood, 93 F.3d 1434, 1440 (9th Cir. 1996) 3 (holding that failure to take futile action can not be ineffective). Moreover, even if 4 counsel did attempt to challenge the kidnapping allegation, it would be quite 5 attenuated for counsel to argue successfully that because Kathy Ryan may have 6 met petitioner willingly on the night of the murder, she also consented to having 7 sex with him. The physical evidence strongly suggested that Kathy Ryan was 8 raped prior to hear death and that she likely was penetrated forcefully by an object. 9 (9 RT 2002, 2017-20, 2029-30.) Petitioner cannot prevail on Claim 5(D)(2). 10 Accordingly, the Court DENIES Claim 5(D)(2). 11 2. Counsel’s failure to put on evidence about petitioner’s level 12 of inebriation on the nights of both crimes (Claim 5(D)(3)) 13 In claim 5(D)(3), petitioner argues that trial counsel failed to elicit 14 corroborating evidence from eye witnesses that petitioner consumed large 15 quantities of alcohol and drugs on the nights of both crimes. 16 As with the other claims of IAC, petitioner must show that counsel 17 performed deficiently and that counsel’s inadequate representation prejudiced 18 petitioner. Wiggins, 539 U.S. at 521. 19 Trial counsel put Christopher Esparza on the stand. Esparza spent the 20 afternoon preceding Kathy Ryan’s murder with petitioner. (12 RT 3023-26.) 21 Esparza testified that while he and petitioner were together, they stopped at a 22 liquor store and purchased two six-packs of beer. (12 RT 3024.) Esparza saw 23 petitioner drink at least four beers during their last hour together. (12 RT 3025- 24 26.) In addition, trial counsel presented the testimony of Dr. Amer Rayyes, who 25 testified that petitioner is an alcoholic and that every time petitioner drank, he 26 would drink until he was intoxicated. (12 RT 3058.) Petitioner’s confession 27 stated that he was drunk on the night of Edna Bristol’s murder. (Confession 28 Transcript at 3.)

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1 Petitioner cannot prevail by alleging that counsel failed to put on cumulative 2 evidence. Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (holding that 3 “it was not unreasonable for counsel not to pursue such testimony when it was 4 largely cumulative of the testimony” already offered). Moreover, petitioner cannot 5 show prejudice. The jury heard evidence that petitioner had been drinking heavily 6 preceding both murders and heard expert testimony about the effect alcohol had on 7 him. Petitioner has shown neither deficiency nor prejudice. 8 Accordingly, the Court DENIES Claim 5(D)(3). 9 3. Counsel’s failure to investigate the audio-taped confession 10 for tampering (Claim 5(D)(4)) 11 In Claim 5(D)(4), petitioner contends that trial counsel failed to conduct an 12 adequate investigation of the audio-taped confession for any possible tampering 13 with the tape. Trial counsel also failed to have petitioner listen to the tape and 14 provide his comments on it, or to question petitioner about the circumstances 15 surrounding the confession. 16 Again, petitioner must show that counsel performed deficiently and that 17 counsel’s deficiency prejudiced petitioner. Wiggins, 539 U.S. at 521. 18 Petitioner has not put forth any allegations or evidence to show what 19 counsel would have learned if he had conducted an independent examination of 20 the audio-taped confession for possible tampering. He also has not provided any 21 evidence of what petitioner would have told counsel if petitioner had listened to 22 and commented on the confession. Petitioner’s “claim of [deficiency and] 23 prejudice amounts to mere speculation.” Cooks v. Spalding, 660 F.2d 738, 740 24 (9th Cir. 1981); see also James v. Borg, 24 F.3d at 26. 25 Accordingly, the Court DENIES Claim 5(D)(4). 26 27 28

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1 4. Counsel’s failure to challenge probable cause to arrest 2 petitioner and search his van (Claim 5(D)(5)) 3 In Claim 5(D)(5), petitioner alleges that trial counsel failed to rebut the 4 prosecution’s contention that the arresting officers had sufficient probable cause to 5 arrest petitioner and to search his van. 6 As stated, petitioner must show that counsel’s performance fell below the 7 standard of care and that this deficiency prejudiced petitioner. Wiggins, 539 U.S. 8 at 521. “Where defense counsel’s failure to litigate a Fourth Amendment claim 9 competently is the principal allegation of ineffectiveness, the defendant must also 10 prove that his Fourth Amendment claim is meritorious and that there is a 11 reasonable probability that the verdict would have been different absent the 12 excludable evidence in order to demonstrate actual prejudice.” Kimmelman v. 13 Morrison, 477 U.S. 365, 375 (1986). 14 Petitioner argues that “[a] significant aspect of probable cause to search [his] 15 van was the alleged observation of a carpet that was similar to fibers found in one 16 of the victim’s pubic hairs.” (Petr’s 8/23/07 Brief at 21). Petitioner also contends 17 that “[t]he police claimed to have seen a ‘rust-brown’ carpet on the floor of Mr. 18 Hernandez’s van.” (Id.) In support of these contentions, petitioner points to the 19 prosecutor’s opening argument, which noted that the coroner found burnt orange 20 and rust-colored carpet fibers, the same as the carpet found in petitioner’s van, on 21 victim Edna Bristol. (8 RT 1750.) He also cites the statements of police officer 22 Ronald Nelson. Officer Nelson testified that carpet was pulled over the backseat 23 of petitioner’s van, but that he could still see part of the carpet, which appeared to 24 be “red” or “rust-colored” and that he saw “several rubber bands, green and brown, 25 on the shifting column of the vehicle.” (1 RT 68A-69A.) 26 Petitioner alleges that the arresting officer could not have observed the 27 carpet in the back of petitioner’s van and that counsel performed deficiently in 28 both failing to discover that impossibility and arguing that there was no probable

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1 cause to search the van. For example, police officer Mac Lyman testified at trial 2 that “[y]ou could only see the driver’s compartment of the van. There was a 3 blanket covering the rear portion of the van.” (11 RT 2858, 2861.) Another 4 witness, Robert Beeler, testified that he thought the windows on petitioner’s van 5 had been painted. (9 RT 2196.) 6 At the motion to suppress the confession, however, the prosecution offered 7 the testimony of Long Beach police officer Paul Chastain, who located and looked 8 inside petitioner’s van before it was searched. (1 RT 213A-214A.) Officer 9 Chastain testified that he saw orange carpet inside the van. (1 RT 214A.) While 10 he testified that he could not see anything in the rear of the van (1 RT 221A- 11 222A), he did see orange-colored carpet “between the seats,” and “on the driver’s 12 side,” “on the floor.” (1 RT 225A.) Given this testimony, it is difficult for 13 petitioner to establish that counsel performed deficiently by failing to argue that 14 the police could not see the color of the carpet from outside the van. 15 Even if counsel performed deficiently, petitioner cannot show prejudice. As 16 stated in Strickland, “a court need not determine whether counsel’s performance 17 was deficient before examining the prejudice suffered by the defendant as a result 18 of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim 19 on the ground of lack of sufficient prejudice, which we expect will often be so, 20 that course should be followed.” Strickland, 466 U.S. at 697. Petitioner “must 21 establish that had” counsel challenged the visibility of the carpet fibers from 22 outside the van, then “there was a reasonable probability that the evidence would 23 have been suppressed” and petitioner would have enjoyed a more favorable 24 verdict. Lowry v. Lewis, 21 F.3d 344, 346-47 (9th Cir. 1994) (citing Morrison, 25 477 U.S. at 375). First, the conflicting testimony about the visibility of the carpet 26 from outside the van might have caused counsel to raise different arguments at the 27 suppression hearing, but those arguments would not necessarily have negated a 28 finding of probable cause. Cf. Gerstein v. Pugh, 420 U.S. 103, 121 (1974) (“[A

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1 probable cause determination] does not require the fine resolution of conflicting 2 evidence that a reasonable-doubt or even a preponderance standard demands, and 3 credibility determinations are seldom crucial in deciding whether the evidence 4 supports a reasonable belief in guilt.”) In addition, there likely was probable cause 5 to search petitioner’s van even without the orange-colored carpet fibers. The 6 police found “[t]wenty-three small turquoise rubber bands . . . on the ground near 7 [Edna Bristol’s] body.” Hernandez, 47 Cal. 3d at 328. Before arresting petitioner 8 and searching his van, the police looked inside the van from the outside and saw 9 “several greenish-turquoise rubberbands on the driver shifting column.” (11 RT 10 2859; see also 1 RT 69A (“[T]here was [sic] also several rubber bands, green and 11 brown, on the shifting column of the vehicle.”).) The rubberbands, on their own, 12 probably supported a finding of probable cause to search petitioner’s van, given 13 the other facts and circumstances suggesting that the same perpetrator committed 14 the two murders, placing petitioner with Kathy Ryn on the night of her murder and 15 connecting petitioner to Edna Bristol about a month before Bristol’s murder.8 See, 16 17 8 Officer William Collette testified that the police noted many similarities between the two murders and suspected that the same perpetrator committed both crimes: (1) both victims were 18 found in the early morning hours; (2) both victims were on grassy parkways; (3) both victims were found adjacent to schools; (4) both victims were on a non-residential side of a street, across 19 from residential areas; (5) both victims were found in the vicinity of El Dorado Park, a park 20 frequented by petitioner, Kathy Ryan and their other friends; (6) both victims appeared to have been murdered at a location separate from where they were found and both appeared to have 21 been transported to the location where they were found by a vehicle or some other means; (7) there were cigarette butts at both crime scenes; (8) both victims were nude; (9) both victims 22 were lying on their backs; (10) both victims were young Caucasians, appearing to be sixteen to twenty years of age; (11) both victims had similar physical characteristics, “that being that they 23 had shoulder-length, long strawberry-blond hair, they were both well developed in the bust and they both appeared to be about five foot four, 125 pounds”; (12) both victims appeared to have 24 been strangled or suffocated; (13) both victims had puncture wounds to the nipples of the breasts; (14) both victims had trauma to the mouth and facial regions; (15) the public hair on 25 both victims had been burned; (16) both victims had bloody discharges from the vagina and 26 rectum, indicating each may have been raped or sodomized; and (16) tape residue was found on the ankles and wrists of Edna Bristol, while black electrical tape was found near Kathy Ryan’s 27 body (1 RT 284A-285A; see also 1 RT 292A.) In addition, the murders took place five days apart. People v. Hernandez, 47 Cal. 3d 315, 328 (1988). Some evidence also connected 28 petitioner to both victims. Diva Sarzyinski told an investigating officer that she was with petitioner and victim Kathy Ryan on the night leading up to Ryan’s murder. (1 RT 70A-71A.)

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1 e.g., United States v. Diaz, 491 F.3d 1074, 1078 (9th Cir. 2007) (“[P]robable cause 2 means a fair probability that contraband or evidence of a crime will be found in a 3 particular place, based on the totality of the circumstances.”) (internal quotation 4 marks and citations omitted); see also Maryland v. Pringle, 540 U.S. 366, 370-71 5 (2003) (“The probable-cause standard is a practical, nontechnical conception that 6 deals with the factual and practical considerations of everyday life on which 7 reasonable and prudent men, not legal technicians, act . . . . The probable-cause 8 standard is incapable of precise definition or quantification into percentages 9 because it deals with probabilities and depends on the totality of the 10 circumstances.”) (internal quotation marks and citations and omitted); Texas v. 11 Brown, 460 U.S. 730, 742 (1983) (“[P]robable cause is a flexible, common-sense 12 standard . . . . A practical, nontechnical probability that incriminating evidence is 13 involved is all that is required.”) (internal quotation marks and citation omitted). 14 Petitioner has failed to show a reasonable probability that the evidence recovered 15 from the van would have been suppressed, and, consequently, that petitioner 16 would have been acquitted on any charges, had trial counsel challenged whether 17 the police could see the color of the carpet fibers from outside petitioner’s van. 18 Accordingly, the Court DENIES Claim 5(D)(5). 19 5. Counsel’s failure to investigate and present evidence of 20 potential Miranda violations (Claim 5(D)(6)) 21 It is difficult to understand exactly what petitioner alleges in Claim 5(D)(6). 22 Petitioner seems to contend that trial counsel failed to investigate and present 23 available evidence to support petitioner’s assertion that the police delayed advising 24 petitioner of his rights and that the police refused to honor petitioner’s request for 25 an attorney. This evidence allegedly consists of police reports concerning 26 27 Sarzyinski also told the same investigating officer that she saw victim Edna Bristol with 28 petitioner at El Dorado Park about a month prior to Bristol’s murder. (Id. at 71A-72A, 87A- 88A.)

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1 petitioner’s interrogation in a separate pair of murders in San Luis Obispo County. 2 The police reports purportedly state that petitioner was not explicitly advised of his 3 rights and that the police ignored petitioner’s request for counsel during 4 petitioner’s interrogation for the murders in San Luis Obispo County. (The parties 5 have filed a joint stipulation that petitioner was never charged with those crimes.) 6 Petitioner alleges that the reports show that the Long Beach police and the San 7 Luis Obispo County police, in separate interrogations, similarly mistreated 8 petitioner by delaying the advisement of his rights and by not honoring his request 9 for counsel promptly. Petitioner contends that this acknowledgment “is highly 10 probative of whether Mr. Hernandez was denied his right to counsel at the time he 11 was interrogated by the Long Beach police.” (Petr’s 8/24/08 Brief at 24.) 12 Petitioner suggests that if counsel had discovered and presented this evidence 13 during the suppression motion, petitioner’s confession would have been 14 suppressed and he would have been acquitted. 15 As stated, petitioner must show that counsel performed deficiently and that 16 this deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 17 This claim fails. Petitioner has not cited to the alleged police reports in the 18 petition or his merits briefing, and a thorough search of the records and briefs did 19 not uncover any such reports. Because the alleged police reports are unavailable 20 for the Court’s inspection, the Court cannot evaluate the alleged factual 21 underpinnings of this claim. Even if such reports exist, it is difficult to imagine 22 that they contain an admission that the police violated petitioner’s rights. (See, 23 e.g., 2 RT 343A-346A, 348A-349A, 2 RT 493A-95A (detailing testimony by 24 police officers that they read petitioner his rights about ten minutes after they 25 apprehended him and that petitioner did not request an attorney). Moreover, even 26 if the Long Beach police officers advised their San Luis Obispo County 27 counterparts that petitioner “behaved similarly” when he was arrested for the Long 28 Beach murders, that fact by itself does not suggest that the Long Beach police

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1 violated petitioner’s rights when they interrogated him about the murders of Kathy 2 Ryn and Edna Bristol. It is just as likely that petitioner acted similarly in the two 3 interrogations because he was being questioned about a double murder that could 4 lead to capital charges, as it is to presume that his behavior was related to the 5 police failing to Mirandize him and or to provide counsel. Petitioner’s claim of 6 deficiency is unsupported by the record and fails as both conclusory and 7 speculative. Jones, 66 F.3d at 204-05 (“It is well-settled that ‘conclusory 8 allegations which are not supported by a statement of specific facts do not warrant 9 habeas relief.’”) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)); cf. 10 Allison, 431 U.S. at 75 n.7 (holding that the petition must allege facts that 11 demonstrate the possibility of constitutional error). 12 Similarly, petitioner cannot show prejudice. Even assuming that counsel 13 performed deficiently, petitioner would have to show that (1) absent counsel’s 14 failure to discover the police reports, which were purportedly withheld, and 15 (2) excepting counsel’s consequent failure to offer the police reports in support of 16 the motion to suppress, the trial court would have suppressed the confession, and 17 petitioner would have been acquitted. That possibility is too attenuated and 18 speculative to support a finding of prejudice, particularly when the trial court held 19 an extensive hearing on the legality of petitioner’s confession. Cooks, 660 F.2d at 20 740 (holding that petitioner’s claim of prejudice amounted to “mere speculation”). 21 Accordingly, the Court DENIES Claim 5(D)(6). 22 6. Counsel’s failure to argue to that petitioner’s arraignment 23 was unreasonably delayed in support of the motion to 24 suppress (Claim 5(D)(8)) 25 In Claim 5(D)(8), petitioner alleges that trial counsel failed to move to 26 suppress petitioner’s February 6, 1981 confession on the grounds that his 27 arraignment had been unreasonably delayed. 28 The Court laid out the relevant facts in its summary judgment order:

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1 Petitioner was arrested at his residence at approximately 2:10 2 p.m. on February 4, 1981. He was advised of his Miranda rights. The advisement and petitioner’s waiver were recorded on audiotape. 3 (1 RT 307A.) The police interviewed petitioner until 8:21 p.m. that evening. During the interview, petitioner made many incriminating 4 statements. He then agreed to provide blood, saliva and hair samples. Petitioner was taken to a hospital for that purpose. In the early 5 morning hours of February 6, 1981, he was again interviewed by police. Before the interview, petitioner was reminded of his 6 constitutional rights and asked if he remembered those rights. (1 RT 313A.) He agreed to provide a dental impression and was taken to the 7 hospital for that purpose. 8 (Summary Judgment Order at 24.) 9 “[T]he Fourth Amendment requires a prompt judicial determination of 10 probable cause as a prerequisite to an extended pretrial detention following a 11 warrantless arrest.” County of Riverside v. McLaughlin, 500 U.S. 44, 47 (1991) 12 (citing Gerstein v. Pugh, 420 U.S. 103, 124 (1974)). Specifically, “a jurisdiction 13 that provides judicial determinations of probable cause within 48 hours of arrest 14 will, as a general matter, comply with the promptness requirement.” McLaughlin, 15 400 U.S. at 56; but see McLaughlin, 400 U.S. at 56-57 (explaining that the 48-hour 16 rule will generally provide immunity from systematic challenges, but that it will 17 not bar a claim where the individual can prove that despite providing a probable 18 cause determination within 48 hours, that determination was still delayed 19 unreasonably). 20 Petitioner argues that he was not arraigned within 48 hours of his arrest, as 21 required by McLaughlin and California Penal Code Section 825. In fact, petitioner 22 contends that he was not arraigned until March 4, 1981, a full month after his 23 arrest. (Petr’s 8/23/08 Brief at 26.) Petitioner therefore alleges that trial counsel 24 was ineffective for failing to argue that the unreasonable delay in his arraignment 25 was only for the purpose of investigation and that, therefore, petitioner’s February 26 6, 1981 confession should have been suppressed because it was the fruit of the 27 poisonous tree. (Petr’s 8/23/08 Brief at 27.) 28 Petitioner must demonstrate that counsel performed deficiently and that this

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1 deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 2 Petitioner cannot prevail on this claim. Petitioner cannot demonstrate that 3 counsel was deficient for failing to argue that the February 6, 1981 confession 4 should have been suppressed based on an unreasonable delay in arraignment. The 5 facts show that petitioner was arrested at about 2:10 p.m. on February 4, 1981. He 6 began to give the police a tape-recorded confession that same day at 7:38 p.m. 7 Petitioner then offered another confession in the early morning hours of February 8 6, 1981. Both of these confessions fall within the 48-hour rule, as the time for a 9 probable cause determination would not have expired until 2:10 p.m. on February 10 6, 1981. In other words, neither confession was made “past the time that the delay 11 was unreasonable.” Cf. Anderson v. Calderon, 232 F.3d 1053, 1071 (9th Cir. 12 2000). Therefore, counsel was not deficient for failing to argue at the suppression 13 hearing that the February 6, 1981 confession should have been suppressed because 14 there was an unreasonable delay in petitioner’s arraignment. 15 Accordingly, the Court DENIES Claim 5(D)(8). 16 7. Counsel’s failure to challenge State’s theory that petitioner 17 used a baseball bat to assault victims (Claim 5(D)(10)) 18 In Claim 5(D)(10), petitioner argues that trial counsel failed to challenge the 19 State’s contention that petitioner sexually assaulted the victims with a baseball bat. 20 At trial, the State presented the testimony of Joan Dr. Shipley, a pathologist 21 who worked for the Los Angeles County medical examiner. (9 RT 1968-89.) 22 When asked whether the condition of the victims’ bodies was consistent with or 23 excluded penetration by a penis, Dr. Shipley testified that the damage to the anus 24 and vagina of both victims indicated “a very severe degree of trauma, and the 25 wounds in both girls [were] extremely similar and extremely rare.” (9 RT 2030.) 26 She also described the injuries as “very extensive,” and stated that “in ten years’ 27 experience, it’s almost been unique to find it in these two cases, and it certainly 28 suggests a very large object and repetitive injuries.” (Id.) When asked,

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1 Dr. Shipley opined that the wounds could be consistent with a baseball bat. (Id.) 2 The prosecution also called Barbara Johnson, a forensic serologist for the 3 Los Angeles County Sheriff’s Department. (10 RT 2323-33.) Johnson testified 4 that she found human blood on the baseball bat retrieved from petitioner’s van. 5 (Id. at 2394.) The blood “was on the side of the bat and about the middle portion 6 of the bat.” (Id. at 2491.) She checked the rest of the bat for blood but did not 7 find any. (Id. at 2492.) She also examined a “white crusty stain at the end of the 8 bat” for semen but did not detect any. (Id.) Finally, Johnson testified that the 9 blood on the baseball bat was likely petitioner’s blood. (Id. at 2496.) 10 Again, petitioner must show that counsel performed deficiently and that this 11 deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 12 Petitioner’s claim cannot prevail. Even if trial counsel’s failure to challenge 13 the prosecutor’s intimation that petitioner used a baseball bat to assault both 14 victims was deficient, petitioner cannot show prejudice. Any lay person could 15 have concluded based on the evidence presented that the baseball bat was not used 16 to assault the victims. If petitioner used the baseball bat to assault the victims, one 17 would expect the bat to contain more than a small amount of blood, and that blood 18 would not be only in the center of the bat but would extend from either end of the 19 bat. Moreover, the blood found in the center of the baseball bat was petitioner’s 20 blood rather than the blood of one of the victim’s. A small amount of the 21 petitioner’s blood in the center of the baseball bat is not consistent with the bat 22 being used to sodomize or otherwise assault the victims. 23 Accordingly, the Court DENIES Claim 5(D)(10). 24 8. Counsel’s failure to obtain all discovery (Claim 5(D)(11)) 25 In Claim 5(D)(11), petitioner contends that trial counsel failed to move to 26 discover or obtain a complete record of all the material in the possession of the 27 State, particularly all of the notes and reports made by the police and the coroner, 28 among others. Trial counsel also failed to obtain clinical notes and records of the

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1 scientific tests performed by the State, as well as the conditions in which the 2 physical evidence was maintained prior to testing. 3 As with other IAC claims, petitioner must show that counsel performed 4 deficiently and that this deficient performance prejudiced petitioner. Wiggins, 539 5 U.S. at 521. 6 Petitioner cannot prevail on this claim because he cannot show prejudice. 7 The physical evidence helped to establish petitioner’s identity as the assailant, 8 which was not an issue at trial. Petitioner confessed to the murders, and that 9 confession was admitted. Petitioner’s defense at trial was not mistaken identity 10 but that he accidentally killed the victims, that he suffered from diminished 11 capacity or both. To demonstrate prejudice, petitioner would have to show that the 12 physical evidence was kept in conditions that compromised its integrity and that 13 the degraded quality of the evidence resulted in prejudice to petitioner. Petitioner 14 does not make such a claim, nor does he attempt to prove anything of the sort. 15 Trial counsel’s alleged errors with respect to the physical evidence would not have 16 made a difference in the outcome at trial. 17 Petitioner does not point to evidence to show what counsel would have 18 discovered had he obtained all of the materials in the State’s possession at the time 19 of trial. Perhaps petitioner means to suggest that trial counsel would have cross 20 examined the witnesses more effectively had he possessed a more complete record, 21 but such an interpretation is born in conjecture and speculation. James v. Borg, 24 22 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a 23 statement of specific facts do not warrant habeas relief.”) 24 Accordingly, the Court DENIES Claim 5(D)(11). 25 9. Counsel’s failure to have physical evidence tested 26 independently (Claim 5(D)(12)) 27 In Claim 5(D)(12), petitioner alleges that trial counsel failed to obtain an 28 independent evaluation of the State’s testing of the physical evidence, including

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1 hair samples, saliva, blood, bite marks, vaginal swabs, and then unreasonably 2 failed to move to exclude that evidence. Petitioner contends that this error both 3 allowed the jury to rely upon false and materially misleading information and 4 prevented trial counsel from moving to exclude petitioner’s confession on grounds 5 that it was unreliable and the product of impermissible interrogation tactics by the 6 police. 7 Petitioner must demonstrate both that counsel performed deficiently and that 8 this deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 9 Petitioner cannot prevail on this claim. As with Claim 5(D)(11), the 10 physical evidence corroborated petitioner’s identity, but that was not an issue at 11 trial because petitioner confessed. Petitioner has not shown how trial counsel’s 12 failure to conduct an independent evaluation of the physical evidence caused the 13 jury to rely upon false and materially misleading information or how this alleged 14 occurrence prejudiced him. This speculative allegation cannot support relief. 15 Jones, 66 F.3d at 204-05; cf. Allison, 431 U.S. at 75 n.7. Moreover, petitioner’s 16 claim that trial counsel’s failure to conduct an independent evaluation of the 17 evidence prevented trial counsel from moving to exclude petitioner’s confession 18 on grounds that it was unreliable and the product of impermissible interrogation 19 tactics by the police fails. Trial counsel did move to suppress the evidence on 20 these grounds. (Partial Summary Judgment Order (Oct. 2, 1997) at 29-30 21 (granting summary judgment to respondent on portion of Claim 5(D)(14) 22 concerning trial counsel’s failure to object to petitioner’s confession as unreliable 23 due to coercive police tactics).) 24 Accordingly, the Court DENIES Claim 5(D)(12). 25 10. Counsel’s failure to investigate the reliability of petitioner’s 26 statement (Claim 5(D)(15)) 27 In Claim 5(D)(15), petitioner argues that trial counsel failed to make an 28 inquiry into the reliability of petitioner’s statement to the police that he placed one

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1 of his victims on the cowling of the van, given the absence of corroborating 2 evidence in the pathologist’s reports. Petitioner alleges that this error allowed the 3 jury to be subject to false impression testimony. 4 To prevail on this claim, petitioner must show that counsel performed 5 deficiently and that this deficient performance prejudiced petitioner. Wiggins, 539 6 U.S. at 521. 7 It is unclear what petitioner is alleging that counsel should have done to 8 inquire into the reliability of petitioner’s statement. Petitioner’s claim also 9 assumes that a tangible injury to Bristol’s body would have resulted and been 10 visible if petitioner in fact placed Bristol’s body on the hot cowling, which may 11 not be the case. Again, conclusory allegations do not support habeas relief. 12 James, 24 F.3d at 26. 13 Accordingly, the Court DENIES Claim 5(D)(15). 14 11. Counsel’s failure to adequately cross examine a State 15 witness (Claim 5(D)(16)) 16 In Claim 5(D)(16), petitioner alleges that trial counsel inadequately cross 17 examined a police officer called to testify for the State because trial counsel 18 elicited testimony that the police officer was a polygrapher. Petitioner has 19 withdrawn this claim. Accordingly, the Court DENIES Claim 5(D)(16). 20 12. Counsel’s failure to call Cliff Williams (Claim 5(D)(17)) 21 In Claim 5(D)(17), petitioner contends that trial counsel failed to secure the 22 presence of a critical defense witness, Cliff Williams, at trial. 23 Officer Williams was a twelve-year veteran of the Long Beach Police 24 Department who retired after being injured in the line of duty. His daughter, 25 Heidi, was engaged to petitioner at the time of the crimes. Trial counsel had 26 interviewed Officer Williams several times before trial. Officer Williams told trial 27 counsel that he liked petitioner and that petitioner had a future if he applied 28 himself. Officer Williams agreed to testify on petitioner’s behalf, and trial counsel

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1 told the jury in his penalty phase opening argument that he intended to call Officer 2 Williams. At some point during trial, Officer Williams expressed his concern that 3 testifying for petitioner would have an adverse impact on Officer Williams’s real 4 estate business, which relied in large part on business from Long Beach police 5 officers. Thus, Officer Williams informed trial counsel that he did not want to 6 testify at trial. Although counsel had subpoenaed Officer Williams to testify three 7 times, once for each trial date, trial counsel did not put Officer Williams on the 8 stand. 9 Again, petitioner must demonstrate that counsel performed deficiently and 10 that this deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 11 Respondent argues that trial counsel made a tactical decision not to call 12 Officer Williams because he had become an unwilling character witness. 13 Petitioner counters, convincingly, that counsel’s failure to call Officer Williams 14 was not tactical, citing numerous times to trial counsel’s eleven-volume deposition 15 transcript. (See, e.g., 9 CDD 27.) Counsel also explained how he tended to use 16 subpoenas: 17 [I]f I am sure that they are going to testify and they are going to 18 testify, good for me. Then what happens is I don’t bother to subpoena them because they are going to show up and they are going to testify 19 anyway and a subpoena might make them mad. That is not the situation with a police officer. 20 A police officer may very well—and this is just my experience 21 and it may not match up with anyone else’s —a police officer sometimes has to have an excuse to testify because if he doesn’t have 22 an excuse his fellow officers are going to get angry with him. 23 So, as a consequence what you do is you give him, no matter how helpful he wants to be and it appears that he is going to be, you 24 put a piece of paper in his hand and say, here, you are subpoenaed and then he has to testify. The other officers understand that and 25 generally that is good enough. That is why they tell the truth. 26 (9 CDD 48-49.) Trial counsel’s failure to call Officer Williams was neither 27 strategic nor reasonable. 28 Trial counsel stated in his opening argument that he intended to call three

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1 non-family character witnesses during the penalty phase: (1) Kimberly Parker, a 2 friend of petitioner’s; (2) Heidi Williams Brown, petitioner’s fiancée at the time of 3 the crime; and (3) Cliff Williams, Heidi’s father. Trial counsel did in fact call 4 Parker and Brown. Parker testified that petitioner convinced her that she should 5 stop drinking alcohol and smoking marijuana because she had Diabetes. (14 RT 6 3608-09.) Brown testified that she had been engaged to petitioner, that they had 7 “normal” sexual relations and that the only time he displayed any type of violence 8 was when she once hit him very hard with a pipe, causing welts, and petitioner 9 slapped her in response. (14 RT 3615-16, 3618.) The evidence from both Parker 10 and Brown consumed less than fourteen pages of transcripts, including cross 11 examination. Counsel then failed to call Office Williams, potentially his most 12 effective and credible character witness, despite telling the jury in his opening 13 statement that he intended to put Officer Williams on the stand and even though 14 Officer Williams had been subpoenaed for trial. Counsel’s failure to put Officer 15 Williams on the stand was deficient. 16 Officer Williams provided the following evidentiary hearing testimony: 17 I knew Francis Hernandez very well when he was a young man. 18 Francis dated my daughter Heidi. Francis was a good kid, and I had a favorable opinion of him. When Francis was arrested for murder, it 19 was truly a shock for all of us. 20 Before Francis’s trial, his attorney met with me because he 21 wanted to know what I thought of Francis. I answered Francis’s attorney’s questions truthfully, and the attorney asked me to testify on 22 Francis’s behalf at his murder trial. I agreed to do so, but I later changed my mind. If I had testified at Francis’s trial, or at any trial, I 23 would certainly have told the truth. 24 (Williams 6/22/03 Decl. at 1, ¶¶ 1-2.) 25 Again, the prejudice inquiry requires the Court to assess all of the mitigating 26 evidence, both that presented at trial and as part of the evidentiary hearing, and 27 then to reweigh that evidence against the State’s case in aggravation. Williams 28 (Terry), 529 U.S. at 398. Putting Officer Williams, an experienced police officer

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1 injured in the line of duty, on the stand to testify as to petitioner’s character likely 2 would have carried more weight with the jury than the very limited character 3 evidence presented. Officer Williams clearly had strong character evidence to 4 offer. His daughter had been engaged to petitioner just before the crime occurred, 5 and Officer Williams had spent a lot of time with petitioner. Despite petitioner’s 6 brutal murders of other young women, Officer Williams would have testified that 7 he knew petitioner well at the time of the crime, that he had a positive opinion of 8 petitioner and that petitioner had a future if he applied himself. The positive, 9 coherent character testimony from Officer Williams would have bolstered the 10 evidence presented, particularly compared to the thin mitigation case presented. 11 Moreover, the absence of Officer Williams’s testimony after trial counsel 12 specifically told the jury he was going to put Officer Williams on the stand likely 13 had a substantial negative impact on the penalty phase evidence actually presented 14 at trial. 15 Nevertheless, petitioner has not established a reasonable probability that the 16 testimony of one police officer who held a positive view of petitioner would have 17 caused the jury to vote for life instead of death. Officer Williams’s testimony 18 could not overcome the brutal circumstances of the crime, coupled with 19 petitioner’s callous and unfeeling penalty phase testimony. 20 Accordingly, the Court DENIES Claim 5(D)(17), but will consider 21 counsel’s deficiency in the cumulative error analysis. 22 13. Counsel’s failure to object to the admission of prejudicial 23 character evidence (Claim 5(D)(19)) 24 In Claim 5(D)(19), petitioner argues that trial counsel failed to object 25 to the introduction of highly prejudicial character evidence that on the night of 26 Edna Bristol’s murder, petitioner went looking for a homosexual to assault, found 27 one and then beat him up and robbed him. Petitioner further contends that trial 28 counsel failed to object to the prosecutor’s argument based on that testimony.

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1 Again, petitioner must demonstrate that counsel performed deficiently and 2 that this deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 3 The portion of the confession to which petitioner objects is the following: 4 I was driving down the street. I had just—uh—I was drunk. I 5 was in a weird mood and thinking about a lot of things and just decided to go out and find—find myself a homosexual to beat up on, 6 and I just found one. I just got through robbing him for his last ten 7 dollars. 8 (Confession Transcript at 3.) 9 Petitioner contends that his assault of the homosexual, an uncharged 10 offense, was admitted as improper character evidence. Cal. Evid. Code §1101(a). 11 Petitioner argues that none of the exceptions, including motive, opportunity, intent, 12 preparation, plan, knowledge, identity, absence of mistake or accident, applies. 13 Cal. Evid. Code § 1101(b). Arguably, the intent and accident exceptions may 14 apply. Petitioner’s intent to rape and intent to kill were disputed material issues at 15 trial. See People v. Robbins, 248 Cal. Rptr. 172, 178 (1988) (citing People v. 16 Kelley, 57 Cal. Rptr. 363, 372 (1967) (“Such evidence is admissible in cases where 17 the proof of defendant’s intent is ambiguous, as when he admits the acts and 18 denies the necessary intent because of mistake or accident.”).) Petitioner said that 19 he had consensual sex with Edna Bristol but also stated that he “guessed maybe 20 [Edna] thought” that he “ha[d] her . . . forcibly.” (Confession Transcript at 5.) He 21 confessed that he covered her nose and mouth with a rag but that he “might have 22 held it there too long” and she stopped moving. (Id. at 6.) He thought she was 23 still alive when he left her body at Marshall Junior High. (Id.) 24 The admissibility of the uncharged conduct “depends on three principal 25 factors: (1) the materiality of the fact sought to be proved or disproved; (2) the 26 tendency of the uncharged crime to prove or disprove the material fact; and (3) the 27 existence of any rule or policy requiring the exclusion of the relevant evidence.” 28 People v. Thompson, 165 Cal. Rptr. 289, 294 (1980).

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1 First, the evidence in question—here, petitioner’s attack on a homosexual— 2 must be material to the intent issues disputed at trial. Robbins, 248 Cal. Rptr. at 3 178. “To be relevant, an uncharged offense must tend logically, naturally and by 4 reasonable inference to prove the issue(s) on which it is offered.” Id. The 5 California Supreme Court has “long recognized that if a person acts similarly in 6 similar situations, he probably harbors the same intent in each instance, and that 7 such prior conduct may be relevant circumstantial evidence of the actor’s most 8 recent intent.” Id. (citation and internal quotation marks omitted). Moreover, 9 “[t]he inference to be drawn is not that the actor is disposed to commit such acts; 10 instead, the inference to be drawn is that, in light of the first event, the actor, at the 11 time of the second event, must have had the intent attributed to him by the 12 prosecution.” Id. Petitioner’s attack on the gay man, just before he picked up 13 Edna Bristol, suggests that petitioner may have been seeking out individuals he 14 perceived as vulnerable in order to take advantage of them. At this level of 15 generality, petitioner’s uncharged conduct does have some relevance to his intent 16 to rape and murder Edna Bristol later that same night. 17 However, the uncharged offense also must have a tendency to prove intent 18 or disprove accident. In short, the uncharged conduct must be “substantially 19 similar” to the charged offense. Robbins, 248 Cal. Rptr. at 179. The charged and 20 uncharged conduct must be fairly similar. See, e.g., People v. Carter, 23 Cal. Rptr. 21 2d 888, 894 (Cal. Ct. App. 1993) (finding killings substantially similar where both 22 victims were homosexual men of about the same age, both met defendant in public 23 places, both went with defendant to more secluded locations where they were 24 robbed and killed, the killings were close together in time, both victims were shot 25 in the head at close range by the same gun, both victim’s cars were ransacked and 26 left in public places, both victims were robbed of their credit cards and defendant 27 used both victim’s credit cards immediately); People v. Delgado, 13 Cal. Rptr. 2d 28 703, 708 (Cal. Ct. App. 1992) (finding prior uncharged conduct “sufficiently

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1 similar” to prove intent where both uncharged and charged conduct involved 2 burglary of a residence through a window, and items taken as repayment for a debt 3 included a VCR in a pillowcase and stolen jewelry). 4 Here, there is insufficient “similarity in time, place and potential motive” to 5 make petitioner’s testimony that he beat up and robbed a gay man admissible to 6 prove whether petitioner intended to rape and murder Edna Bristol later that night. 7 See People v. Curry, 142 Cal. Rptr. 649, 651 (Cal. Ct. App. 1977). The uncharged 8 conduct does not tend to prove intent to rape or kill. On this basis alone, counsel 9 could have successfully challenged the admission of the uncharged conduct as 10 impermissible character evidence. 11 Even if the acts were substantially similar, the Court also should consider 12 any policy or rule that would require exclusion of the evidence. For example, 13 “[e]vidence may be excluded under Evidence Code Section 352 if its probative 14 value is ‘substantially outweighed by the probability that its admission would 15 create substantial danger of undue prejudice, of confusing the issues, or of 16 misleading the jury.” People v. Lindberg, 45 Cal. 4th 1, 22-23 (2008) (citation and 17 internal quotation marks omitted). In addition, “[b]ecause substantial prejudice is 18 inherent in the case of uncharged offenses, such evidence is admissible only if it 19 has substantial probative value.” Id. (citation and internal quotation marks 20 omitted); see also People v. Soper, 45 Cal. 5th 759, 773 (“It is therefore 21 appropriate, when the evidence is of an uncharged offense, to place on the People 22 the burden of establishing that the evidence has substantial probative value that 23 clearly outweighs its inherent prejudicial effect.” (citation and internal quotation 24 marks omitted).) 25 Evidence that petitioner went out looking for a gay man to assault, found 26 one and then proceeded to assault and rob him has little materiality to the intent 27 questions at issue at trial. Specifically, petitioner’s assault and robbery of a gay 28 man has little probative value, if any, to determining whether petitioner intended to

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1 rape and murder Edna Bristol a short time later. The prejudicial effect of this 2 evidence outweighs any probative value it might have. Trial counsel failed to 3 object to the admission of this evidence. His failure to do so was deficient. 4 Petitioner also alleges that trial counsel failed to object when the prosecutor 5 incorporated petitioner’s assault of the gay man into his closing arguments. In the 6 guilt phase, the prosecutor used the incident to try to prove intent to rape, 7 sodomize and murder Edna Bristol. 8 [Y]ou can tell what his intent was, because he admits to the 9 police officers that he was angry that night, he was upset, he wanted to hurt somebody; that, in fact, he picked up a homosexual, beat him 10 up, robbed him of his last five dollars or ten dollars, whatever it was. He then went out looking again, and he saw Edna Bristol over here on 11 Broadway, as opposed to the homosexual on Ocean, picked her up . . . . [H]e is out to hurt people. Now, you don’t think rape is only 12 an act of sex. It’s an act of violence. That’s what occurred here. He is out to hurt people. That’s his intention. Okay . . . . For example: ‘I 13 was driving down the street . . . I was in a weird mood and thinking about a lot of things and just decided to go out and find—find myself 14 a homosexual to beat up on, and I just found one.’—indicating he is 15 angry, he is frustrated and he wants to hurt somebody. 16 (12 RT 3126, 13 RT 3187.) 17 In his penalty phase argument, the prosecutor argued that petitioner was not 18 remorseful but, rather, callous and abnormal. (14 RT 3636-38.) The prosecutor 19 read excerpts from petitioner’s confession that minimized or downplayed the 20 events surrounding Edna Bristol’s murder. The prosecutor then contrasted those 21 statements with other evidence that petitioner actually committed a worse or more 22 violent act. As one example of petitioner’s lack of remorse, the prosecutor argued, 23 “He doesn’t tell you that ‘I went out looking for someone to beat up,’ as he told 24 the police that night he met Edna, that he wanted to take out his frustrations on 25 someone to cause them pain.” (14 RT 3639.) The prosecution integrated 26 inadmissible evidence of petitioner’s attack on a gay man into its closing argument 27 at both the guilt and penalty phases. Trial counsel performed below the standard 28 of care both by failing to object to the admission of evidence about petitioner’s

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1 attack on the gay man and by failing to object to the prosecutor’s argument relying 2 on that evidence. 3 Petitioner also must show prejudice. Wiggins, 539 U.S. at 521. Petitioner 4 must show a reasonable probability that but for counsel’s failure to object to the 5 evidence or the prosecutor’s argument about it, petitioner would have been 6 acquitted or that he would have received a life sentence. Strickland 466 U.S. at 7 694. Petitioner cannot show that had trial counsel successfully excluded the 8 inadmissible conduct evidence that the jury would have acquitted. Ample 9 evidence, including portions of petitioner’s confession, viewed together with the 10 condition of the victim’s bodies, suggested that petitioner intended to rape, 11 sodomize and kill Edna Bristol. Similarly, while the prosecutor relied in part on 12 prior conduct evidence to argue that petitioner had no remorse and deserved the 13 death penalty, the prosecutor also relied on many other pieces of evidence, 14 including petitioner’s confession, the condition of the victims’ bodies and 15 petitioner’s penalty phase testimony. Counsel’s failure to object to and exclude 16 this erroneously admitted evidence is not sufficient on its own to warrant guilt or 17 penalty phase relief. 18 Accordingly, the Court DENIES Claim 5(D)(19) but will consider counsel’s 19 deficiency in the cumulative error analysis. 20 14. Trial counsel’s failure to investigate the victims (Claims 21 5(D)(20), 5(D)(21) & 5(D)(34)) 22 In Claim 5(D)(20), petitioner challenges trial counsel’s failure to conduct 23 any investigation into the medical condition of Edna Bristol, including her level of 24 intoxication and her prior heart condition. In Claim 5(D)(34), petitioner contends 25 that trial counsel failed to investigate the condition of both victims and that had he 26 done so, he would have discovered an alternate explanation for Bristol’s death that 27 corroborated petitioner’s statement to police that he did not intend to kill her and 28 his belief that she was alive when he left her. In Claim 5(D)(21), petitioner argues

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1 that trial counsel failed to conduct any investigation into Bristol’s arrest and 2 juvenile records. Petitioner alleges that both Bristol’s level of intoxication and her 3 prior criminal records would have supported petitioner’s defense that he believed 4 Bristol consented to sexual intercourse. 5 As stated, petitioner must show that counsel performed deficiently and that 6 this deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 7 Petitioner cannot prevail on these claims. First, petitioner’s allegations of 8 deficiency are conclusory. Petitioner fails to point to facts in the record indicating 9 what Bristol’s level of intoxication was at the time of the crime, that she suffered 10 from a heart condition that or that she had an arrest or juvenile record. Petitioner 11 also fails to tie the alleged facts that counsel failed to investigate to a prejudicial 12 claim of deficiency. As pled, the Court can only speculate as to how the facts, 13 whatever they may be, show that counsel conducted an inadequate investigation. 14 Petitioner has only put forth conclusory allegations of deficiency. James, 24 F.3d 15 at 26; see also Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970) (holding 16 that “conclusory statements are no substitute for proper allegations of fact” and 17 that [a]llegations of fact, rather than conclusions, are required”). Without clear 18 allegations of deficiency, the Court cannot evaluate the potential prejudice to 19 petitioner. Cooks, 660 F.2d at 740. Moreover, the condition of Bristol’s body 20 suggests that she was strangled and that she did not consent to sexual intercourse. 21 At the very least, the condition of her body may have reasonably informed 22 counsel’s decision not to pursue an alternate theory of death or a defense of 23 voluntary intercourse, undercutting petitioner’s claim of deficiency. Alternatively, 24 the condition of Bristol’s body likely would have caused the jury to reject a claim 25 of consensual sex, substantially weakening any potential prejudice. 26 Accordingly, the Court DENIES Claims 5(D)(20), 5(D)(21) and 5(D)(34). 27 28

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1 15. Counsel’s failure to exercise peremptories on jurors who 2 were victims of crime (Claim 5(D)(23)) 3 In Claim 5(D)(23), petitioner challenges trial counsel’s failure to remove 4 several jurors who had previously been the victims of crime, despite having 5 peremptory challenges remaining. 6 Again, petitioner must demonstrate that counsel performed deficiently and 7 that this deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. In 8 order to evaluate deficiency and prejudice, the Court must consider whether any of 9 the jurors was biased. Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2003) 10 (“Establishing Strickland prejudice in the context of juror selection requires a 11 showing that, as a result of trial counsel’s failure to exercise peremptory 12 challenges, the jury panel contained at least one juror who was biased.”). 13 The Sixth Amendment guarantees the accused “a fair trial by a panel of 14 impartial, indifferent jurors.” United States v. Eubanks, 591 F.2d 513, 516 15 (quoting Irvin v. Dowd, 366 U.S. 717 (1961)). “The principle way in which this 16 right to trial by ‘indifferent’ jurors is secured is through the system of challenges 17 exercised during voir dire.” United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 18 1977). In determining whether a juror suffered from implied or presumed bias, the 19 Court must consider whether there existed the “potential for substantial emotional 20 involvement, adversely affecting impartiality.” Allsup, 566 F.2d at 71, 72 (holding 21 that jurors who work for the same bank that was robbed in the crime underlying 22 the trial were biased). To put it another way, the Court must evaluate whether 23 “this is one of ‘those extreme situations where the relationship between a 24 prospective juror and some aspect of the litigation is such that it is highly unlikely 25 that the average person could remain impartial in his deliberations under the 26 circumstances.’” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1991) (quoting 27 Person v. Miller, 854 F.2d 656,664 (94th Cir. 1988)). Notably, the Ninth Circuit 28 has “been willing to presume bias where a juror or his close relatives have been

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1 personally involved in a situation involving a similar fact pattern.” See Tinsley, 2 895 F.3d at 528. 3 A review of the voir dire transcript with respect to six of the nine jurors 4 shows that counsel did not perform deficiently. While each of these six jurors, or 5 one of their close relatives, was a crime victim, the crimes were unrelated to 6 petitioner’s charges at trial. Accordingly, trial counsel had reason to believe that 7 the jurors would be impartial. (7 RT 1524-34 (Juror Caudel was robbed at the 8 wine wholesaler where he worked 12 years before trial); 7 RT 1604-1612 (Juror 9 Maltin was robbed at gunpoint at the grocery store where he worked more than 10 two years before trial); 7 RT 1348-1355 (Juror Prosser had a tape deck stolen out 11 of her car “a long time ago”); 7 RT 1417-25 (Juror Lamont’s grandparents’ home 12 was burglarized twice in three months about seven years prior to trial); 8 RT 1706- 13 14 (Juror McClister’s home was burglarized eight years prior to trial); 8 RT 1698- 14 04 (Juror Howard was robbed of a transistor radio as a young teenager).) Based on 15 the crimes involved and the voir dire responses, it appears that none of these six 16 jurors was biased. As to these jurors, petitioner’s claim fails. 17 The remaining three jurors present a closer question. On voir dire, Juror 18 Manchester offered that her home had been burglarized seven years prior to trial. 19 (7 RT 1466.) Her husband caught the perpetrator, and her husband also served as 20 a witness at the subsequent trial. (7 RT 1470.) In addition, when asked if there 21 were any reason she did not want to serve on this case, Juror Manchester talked 22 about how her son’s godmother was raped two months before. (7 RT 1471.) She 23 described her son’s godmother as someone to whom she was “very close” and that 24 she had “deep feelings” about the rape. (7 RT 1471, 1473.) She said that she 25 “would try the best [she] could” to be fair and impartial but that she felt doing so 26 “would be difficult.” (7 RT 1473, 1472; see also 7 RT 1474, 1475 (“I cannot just 27 come out and say I would not be fair, because I feel basically I am a fair person. I 28 would do the best I could to keep the cases separate . . . . I cannot guarantee it.”).)

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1 Juror Manchester said that she could separate the facts associated with the two 2 crimes but that her “personal involvement” was the sticking point. (7 RT 1473; 3 see also 17 RT 1473 (“The facts I could separate, but the feelings would be 4 difficult for me.”).) While she stated that her friend asked her to attend the trial of 5 her accused rapist, Juror Manchester also stated that she would not feel guilty if 6 she voted to acquit petitioner. (17 RT 1476.) 7 Juror Howes testified that when she was 23-years-old, a known sex offender 8 threw a boulder through her window after “trying to break in for about two 9 months.” (7 RT 1566.) He attempted to talk his way into her house while she 10 waited for the police to arrive. (7 RT 1581.) Juror Howes was a retired nurse at 11 the time of trial, so this incident took place decades before trial. In addition, 12 Juror Howes talked about the rape and murder of her son’s boss’s 12-year-old 13 daughter, an incident that took place three of four years prior to trial. (7 RT 1574.) 14 She described the relationship between her son and his boss as a friendship. (7 RT 15 1574, 1575.) She stated that she saw her son’s boss and his wife several times a 16 year, both when she had lunch with her son and at family parties. (7 RT 1575.) 17 Juror Howes stated that she thought she had put the girl’s rape and murder “out of 18 [her] mind,” but that she was afraid that she would not be able to be a fair and 19 impartial juror because the cases were “very similar.” (7 RT 1576.) She said it 20 was “all coming back now” and that it was “going to progress,” and that she was 21 afraid and unsure of how she might react. (7 RT 1577.) She also said that she felt 22 very angry at and hostile toward the person who raped and murdered the 12-year- 23 old girl. (7 RT 1577.) When asked, she sated that she would be uncomfortable 24 having herself as a juror, given the circumstances. (7 RT 1579.) On the other 25 hand, Juror Howes also stated that she could try to decide the case based only on 26 the facts presented but that she was “just a little concerned about it.” (7 RT 1577, 27 1580.) She also stated that her feelings about the 12-year-old girl being murdered 28 were “[t]he same” as the reaction she would have to seeing on television that a 23-

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1 year-old stranger had been raped and murdered and that she did not blame 2 petitioner for what happened to the daughter of her son’s boss. (7 RT 1585, 1586.) 3 Juror Howes said that she thought she could listen to the evidence and decide the 4 case accordingly. (7 RT 1588.) 5 When asked if there was any reason she could not serve, Juror Wagner 6 stated that “[w]e have had one experience with my son and his friend a year ago, 7 but you or someone might think it would prejudice me, but I think I can be very 8 fair in spite of it having happened.” (6 RT 1242.) She then described how about a 9 year before trial, her son and his then-girlfriend (now fiancée) were approached by 10 two men at the beach. (6 RT 1242.) The men asked for matches, which her son 11 provided. (6 RT 1242.) The men then pulled a gun and attempted to rape Juror 12 Wagner’s future daughter-in-law. (6 RT 1242.) Juror Wagner stated several times 13 that she could set aside that incident and still be fair and impartial (6 RT 1243.) 14 The Ninth Circuit’s analysis in Fields v. Brown forecloses petitioner’s 15 claim. In that case, a juror named Floyd Hilliard disclosed during voir dire that his 16 wife had been kidnapped, beaten, assaulted and robbed. Hilliard meant the word 17 “assaulted” to mean that his wife had been raped, but he testified at an evidentiary 18 hearing that people were not as open about sexual assault at the time of his jury 19 service as they were at the time of the evidentiary hearing. Had he been asked for 20 more detail about the crime, he would have explained that she had been raped. An 21 en banc panel denied petitioner’s claim that implied or presumed bias could be 22 attributed to Hilliard, even though the petitioner had been tried for robbery, rape 23 and murder. Fields v. Brown, 503 F.3d 775, 773 (9th Cir. 2007) (en banc). The 24 Court held that while it had recognized that “bias may be implied where close 25 relatives of a juror ‘have been personally involved in a situation involving a 26 similar fact pattern,’” the Circuit had “never done so when the juror was honest on 27 voir dire” and “declined to do so” in Fields. Fields, 503 F.3d at 773 (citing 28 Tinsley, 895 F.2d at 528; Eubanks, 591 F.2d at 517; Dyer 151 F.3d 970, 982 (9th

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1 Cir. 1998 (en banc)). The Court explained that the juror’s “honest disclosure on 2 voir dire about what happened to his wife was more than sufficient for follow-up 3 that would have fleshed out whether the relationship between his wife’s experience 4 and some of the crimes charged was such that it is highly unlikely that the average 5 person could remain impartial in his deliberations.” Fields, 503 F.3d at 773 6 (internal quotation marks and citation omitted). The Court provided the following 7 helpful passage: 8 [W]e see no basis for implying bias as a matter of law solely because 9 Hilliard was the spouse of a rape victim. As a practical matter, many prospective jurors have close family members or friends who have 10 suffered similar encounters. It is the role of voir dire to ferret out such relationships, and to develop the extent to which the juror’s 11 ability to be impartial in the particular case is actually, or presumptively, affected. For those revelations that occur during voir 12 dire, the remedy is a cause challenge . . . . Being the spouse of a rape victim is not, in and of itself, such an ‘extreme’ or ‘extraordinary’ 13 situation that it should automatically disqualify one from serving on a jury in a case that involves rape. It cannot be said that the average 14 person in Hilliard’s position would be highly unlikely to remain impartial whether he acknowledged it or not. Rather, the effect of the spouse’s 15 experience on the juror’s impartiality depends on purely personal considerations that can vary from cases to case, including, for 16 example, the similarity of the spouse’s experience to the facts of the case, the nature of the experience, its contemporaneous and 17 continuing impact, the couple’s relationship, how the individual handles it, and so forth. Given Hilliard’s honest response on voir dire 18 that revealed a potentially disqualifying relationship, but not an extreme or extraordinary one . . . we see no basis for inferring bias 19 now as a matter of law. 20 Fields, 503 F.3d at 774-75. As in Fields, Jurors Manchester, Howes and Wagner 21 each admitted on voir dire that someone with whom they had a personal 22 relationship had been the victim of rape or attempted rape. They each brought up 23 the issue on their own, and both trial counsel and the prosecutor had the 24 opportunity to question the jurors about the incidents. Moreover, the rape or 25 attempted rape victims were not close relatives of the jurors. The closest 26 relationship was that of Juror Wagner to her son’s fiancée. While Juror 27 Manchester described her friendship with her son’s godmother as close, they were 28 not relatives. Juror Howes had concerns about the rape of her son’s boss’s

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1 daughter. Even if her son and his boss were very close friends, Juror Howes was 2 not a very close friend of the victim’s parents. Given the spontaneous honesty of 3 the jurors, counsel had the opportunity to elicit questions on voir dire that would 4 demonstrate actual or implied bias. Like Fields, the fact that a person in each of 5 the juror’s lives had been the victim of rape or attempted rape is not enough, by 6 itself, to support a finding of implied bias. Petitioner has not shown that any of the 7 jurors has an extreme or extraordinary disqualifying relationship. See Fields, 503 8 F.3d at 775. Because petitioner has failed to establish that Jurors Manchester, 9 Howes or Wagner were biased, petitioner cannot prevail on this claim. “The 10 impartiality of the jury was not undermined by [Jurors Manchester, Howes and 11 Wagner] being seated as . . . juror[s]. Replacement of one unbiased juror with 12 another unbiased juror should not alter the outcome.” Fields, 503 F.3d at 776. 13 Accordingly, the Court DENIES Claim 5(D)(23). 14 16. Counsel’s failure to conduct adequate discovery (Claim 15 5(D)(33)) 16 In Claim 5(D)(33), petitioner claims that counsel failed to conduct adequate 17 discovery, resulting in counsel failing to locate or identify exculpatory evidence. 18 Petitioner must demonstrate that counsel performed deficiently and that this 19 deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 20 Petitioner cannot prevail on this vague and conclusory claim. He fails to 21 allege how counsel’s discovery was inadequate and presumes that whatever 22 discovery counsel should have conducted would have led to the allegedly 23 exculpatory evidence. Moreover, petitioner fails to specify what kind of 24 exculpatory evidence counsel failed to locate. He states only that it “includ[ed] 25 statements made to the state’s polygrapher by witnesses and other information 26 relevant to their credibility. (Pet. at 52.) Petitioner does not provide the source or 27 content of these statements. “Conclusory allegations which are not supported by a 28 statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d

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1 20, 26 (9th Cir. 1994). 2 Accordingly, the Court DENIES Claim 5(D)(33). 3 17. Counsel’s failure to investigate the people with the victims 4 before their deaths (Claim 5(D)(35)) 5 In Claim 5(D)(35), petitioner contends that trial counsel failed to locate the 6 individuals who were with the victims before their deaths, arguing that those 7 people could have caused the injuries to the victims, or that they could have been 8 the source of the bodily fluids found in, on or near the victims. In addition, 9 petitioner argues that trial counsel failed to seek independent testing of the 10 physical evidence used to establish the elements of the charged offenses. 11 Petitioner must demonstrate that counsel performed deficiently and that this 12 deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 13 Petitioner likely cannot show deficiency or prejudice. In the case of Kathy 14 Ryan, the evidence presented at trial documented that Ryan and petitioner were 15 with a group of friends who played pool and drank beer at Big John’s Pizza Parlor. 16 The evidence also showed that Ryan and petitioner left the restaurant at the same 17 time and got in a car with some other friends. The group dropped petitioner off at 18 a liquor store where he had parked his van and then dropped off Ryan at her home. 19 According to petitioner’s confession, petitioner then picked up Ryan at her home. 20 She was found dead hours later. Some of the people with Ryan before her death 21 testified at trial about the events leading up to her death. No evidence was 22 presented at trial about Bristol’s whereabouts before petitioner picked her up while 23 she was hitchhiking. 24 The jury heard evidence about who was with Ryan before she died. 25 However, petitioner has not pointed to any record evidence to show that one of 26 those individuals, or perhaps another person, was the source of the bodily fluids 27 found in, on or near Ryan, or that any other person killed her. Nor has petitioner 28 pointed to evidence to show that anyone besides petitioner was with Bristol before

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1 she died. Petitioner has failed to point to evidence that would support a theory that 2 someone else injured the victims, killed them or both. 3 Moreover, petitioner argues that trial counsel should have had the physical 4 evidence tested independently. Again, however, petitioner fails to allege what 5 such independent testing would have uncovered. 6 Petitioner’s unsubstantiated allegations are vague, conclusory and 7 speculative. Despite the suggestion otherwise in petitioner’s brief, he must point 8 to specific allegations and the resulting prejudice to prevail on this claim. He has 9 failed to do so. See, e.g., Jones 66 F.3d at 204-05 (holding that relief is 10 unwarranted on the basis of conclusory allegations and without specific allegations 11 of fact); cf. Allison, 431 U.S. 63, 75 n.7 (1977) (“[T]he petition is expected to state 12 facts that point to a real possibility of constitutional error.”) (citation and internal 13 quotation marks omitted); see also Borg, 24 F.3d at 26; Boehme v. Maxwell, 423 14 F.2d 1056, 1058 (9th Cir. 1970) (holding that “conclusory statements are no 15 substitute for proper allegations of fact” and that [a]llegations of fact, rather than 16 conclusions, are required”); see also Cooks, 660 F.2d at 740 (denying relief 17 because petitioner’s claim of prejudice was speculative). 18 Accordingly, the Court DENIES Claim 5(D)(35). 19 18. Counsel’s failure to inform the court that his funding 20 request included sensitive information (Claim 5(D)(37)) 21 In Claim 5(D)(37), petitioner alleges that counsel failed to inform the trial 22 court that his ex parte requests for funding violated California Penal Code Section 23 987.9. This error resulted in the prosecution being able to obtain information 24 about petitioner’s strategy and potential witnesses, including petitioner’s 25 statements to an expert witness. In addition, petitioner argues that trial counsel 26 failed to take any action to correct the violation of petitioner’s Fifth and Sixth 27 Amendment rights, and also failed to request a hearing to ascertain the magnitude 28 of the violations or to seek an appropriate remedy.

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1 Petitioner must demonstrate that counsel performed deficiently and that this 2 deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 3 Petitioner cannot prevail on this claim, as he can show neither deficiency 4 nor prejudice. Petitioner failed to provide record citations to the funding 5 application or applications in question. The Clerk’s Transcripts include a 6 document entitled “Reimbursement Cost Estimate Affidavit for Investigations, 7 Experts and Others (987.9 PC).” (1 CT 174, 175.) Petitioner claims that 8 Dr. Davis’s pre-trial report was attached to the application, but it is not attached to 9 the version contained in the Court’s copy of the Clerk’s Transcript. In fact, the 10 application has very minimal information. The request is dated July 10, 1981, but 11 signed July 22, 1981. It includes a request for overtime as well as out-of-county 12 travel. In addition, it requests funding for a psychiatrist, a psychologist and a 13 neurosurgeon. The funding is requested for the investigation and preparation of 14 psychological defenses and for the penalty phase. (1 CT 174.) Petitioner cannot 15 show deficiency for a host of reasons. First, it is not at all clear that this document 16 is the one about which petitioner complains. If another document is relevant, 17 petitioner has failed to point to that document in the record. Second, it is not clear 18 on the face of the document that it was filed at all, let alone under seal. Petitioner 19 bears the burden of establishing that counsel performed deficiently and has failed 20 to do so here. Strickland, 466 U.S. at 688 (“When a convicted defendant 21 complains of the ineffectiveness of counsel’s assistance, the defendant must show 22 that counsel’s representation fell below an objective standard of reasonableness.”). 23 Even if the Court were to presume a finding a deficiency, petitioner cannot 24 show prejudice. Petitioner has shown neither the information the prosecution 25 gained access to through the funding application, nor the way in which the State 26 used that information to its advantage. 27 Accordingly, the Court DENIES Claim 5(D)(37). 28

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1 19. Counsel’s failure to prepare for trial due to alcoholism 2 (Claim 5(D)(38)) 3 In Claim 5(D)(38), petitioner argues that trial counsel failed to prepare for 4 trial because he was suffering from alcoholism in the months before trial. 5 Petitioner adds that counsel’s alcoholism impaired his ability to objectively 6 evaluate the force of Dr. Rayyes’ testimony and the need for further investigation. 7 Petitioner must demonstrate that counsel performed deficiently and that this 8 deficient performance prejudiced petitioner. Wiggins, 539 U.S. at 521. 9 This claim fails. The fact that trial counsel was suffering from alcoholism at 10 the time of trial is not relevant to the objective inquiry of whether counsel’s 11 performance was reasonable. Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995). 12 The Court need not “inquire into the source of [trial counsel’s] alleged 13 shortcomings.” Id. The Court granted summary judgment to respondent on Claim 14 5(A), which similarly asserted that trial counsel’s affliction with esophageal cancer 15 at the time of trial deprived petitioner of his right to constitutionally adequate 16 counsel. Petitioner contended that counsel underwent surgery in the months 17 preceding trial, which left him unable to read, write or fully concentrate and that 18 the chemotherapy treatments he received throughout trial caused trial counsel to 19 suffer nausea, retching, vomiting, gastrointestinal disorders, hair loss and fatigue 20 so severe that he had to sleep during the noon recess. (Summary Judgment Order 21 at 17.) The Court concluded that “[p]etitioner’s claim of IAC will stand or fall 22 based on whether counsel provided deficient performance and whether petitioner 23 suffered prejudice from the alleged deficiencies . . . [, but] petitioner cannot obtain 24 relief merely because his attorney was ill during the trial.” (Summary Judgment 25 Order at 19.) The same is true with respect to Claim 5(D)(38). The fact that trial 26 counsel suffered from alcoholism at the time of trial cannot support relief on its 27 own. 28 Petitioner also complains, however, that counsel’s alcoholism impacted

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1 counsel’s “ability to objectively evaluate the force of Dr. Rayyes’ testimony and 2 the need for further investigation.” (Pet. at 54.) It is difficult to determine what 3 petitioner contends here. The most charitable reading of the claim is as follows: 4 Dr. Rayyes was a gastroenterologist who specialized in treating alcoholics and 5 who had treated trial counsel and his wife, both recovering alcoholics. Perhaps 6 petitioner means to contend that because Dr. Rayyes had been intimately involved 7 in trial counsel’s life, trial counsel overvalued Dr. Rayyes and relied on 8 Dr. Rayyes’s testimony to petitioner’s detriment when trial counsel really should 9 have conducted further investigation and hired an alternate or more qualified 10 expert. 11 Dr. Rayyes testified at trial that he was a gastroenterologist who specialized 12 in the diagnosis and treatment of alcoholism and other drug addictions. (12 RT 13 3055.) He also testified that he had authored five or six articles “in the general 14 area of alcoholism with a particular view of the medical complications and 15 behavior complications.” (12 RT 3056.) Dr. Rayyes offered testimony that 16 petitioner was an alcoholic. (12 RT 3058.) Dr. Rayyess based this opinion on his 17 in-person evaluation of petitioner. He also testified that, considering the amount 18 of alcohol and marijuana petitioner consumed on the night of both crimes, 19 petitioner would be severely impaired and, accordingly, unable to form the specific 20 intent to kill. (12 RT 3069, 3070.) 21 While there may be questions about whether a gastroenterologist is the most 22 qualified person to testify about alcoholism and its effects, including whether an 23 alcoholic who has been drinking can form the specific intent to kill, the 24 prosecution did not challenge Dr. Rayyes’s credibility or qualifications to evaluate 25 petitioner and to offer the opinions he gave at trial. Taken at face value, it does not 26 appear that trial counsel miscalculated the potential force of Dr. Rayyes’s 27 testimony or that he should have conducted further investigation into another 28 expert. Dr. Rayyes offered testimony that petitioner was an alcoholic, that he

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1 would have been severely impaired at the time of both crimes and that, 2 accordingly, he could not form the specific intent to commit the crimes. Counsel’s 3 decision to put Dr. Rayyes on the stand rather than another expert does not seem 4 so objectively unreasonable that it would warrant a finding of deficiency. In other 5 words, counsel’s decision to use Dr. Rayyes as an expert on alcoholism did not fall 6 below an objective standard of care. Strickland, 466 U.S. at 688. 7 Accordingly, the Court DENIES Claim 5(D)(38). 8 20. Additional claims of IAC (Claim 5(D)(39)) 9 In Claim 5(D)(39), petitioner contends that trial counsel committed 10 additional acts or omissions that resulted in prejudice to petitioner. 11 First, petitioner alleges that trial counsel failed to put Laura Kostiuk, a 12 friend of victim Kathy Ryan’s, on the stand. Kostiuk told counsel that Ryan had 13 sexual relations with petitioner in the past. Counsel testified that Kostiuk “would 14 have been a great witness because the issue was whether or not Francis had 15 voluntary or involuntary sexual intercourse with Kathy. Same thing was also true 16 of the other decedent, but Kathy was the big one. It was one that I could do a lot 17 with and didn’t.” (10 CDD 38.) Trial counsel subpoenaed Kostiuk for the original 18 trial date but did not subpoena her for the actual trial. 19 Counsel was not deficient. Even if counsel put Kostiuk on the stand, the 20 jury could have concluded that petitioner raped Ryan based on the condition of her 21 body. Moreover, a finding of consensual sex with Ryan would not have negated 22 the rape as to Bristol. Counsel was not deficient, and petitioner suffered no 23 prejudice. See Rupe, 93 F.3d at 1445; see also. Roe v. Flores-Ortega, 528 U.S. 24 470, 485 (2000) (holding that “the failure to take futile action can never be 25 deficient performance); cf Miller v. Keeney, 882 F.2d 1428, 1434-35 (9th Cir. 26 1989) (noting that a petitioner who challenges a futile objection fails both 27 Strickland prongs). 28 Petitioner also asserts that trial counsel failed to present evidence he knew

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1 about the circumstances of petitioner’s life just before the crimes. An investigator 2 submitted a report to counsel that stated: “These interviews provide some insight 3 as to why Hernandez might have been prompted to begin killing when he did. An 4 unstable personality coupled with rejection of his parental figures, the Williams, 5 and the final rejection of Heidi Williams, his future wife, just overloaded the 6 thought process.” (10 CDD P00331 (Ex. 28).) Counsel should have been aware, 7 therefore, that petitioner was under incredible stress at the time of the crime. Trial 8 counsel conducted no further investigation into petitioner’s situation, and he 9 apparently did not inform his experts about the circumstance of petitioner’s life. 10 As Dr. Clausen summarized in the social history she prepared for petitioner, 11 from April 1980 until his arrest for the underlying crimes in 1981, petitioner: 12 was an eighteen-year-old, unemployed, parolee who was homeless, 13 isolated from his family, drug addicted and living in a van. Other than an uncertain relationship with a girlfriend and the continued 14 association with a homeless, drug abusing friend, Francis had little social support or contact. He no longer shared a home with either of 15 his parents. He was not in school. He was not incarcerated. He was not in any of the various forms of treatment that teachers, social 16 workers, and mental health professionals had been urging for him since he was a toddler . . . . Francis was a young man with insufficient 17 social and psychological resources attempting to grapple with unmanageable stressors. 18 19 (Clausen Decl. at 86, ¶ 217.) Counsel did not make an informed decision to forgo 20 putting on this sort of evidence, as he mistakenly believed that petitioner was still 21 in a relationship with Heidi at the time of the crimes. (10 CDD 44-46.) Counsel’s 22 failure to investigate and present the circumstances of petitioner’s life, and to 23 inform his experts about those circumstances, was deficient. Expert testimony 24 about the stress petitioner was experiencing at the time of the crimes and how 25 those stresses may have affected his conduct would certainly have been helpful to 26 the jury. In addition to possibly evoking sympathy, it also would offer an 27 explanation for the murders: Petitioner, who already suffered from emotional 28 instability, felt unable to cope with the intense abandonment he felt and was

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1 stressed to his breaking point. This kind of testimony may have caused the jury to 2 come to a different verdict. See, e.g., Caro, 280 F.3d at 1258 (finding prejudicial 3 the exclusion of expert testimony that would have reduced petitioner’s moral 4 culpability). While a prejudicial omission, the excluded testimony is not sufficient 5 on its own to undermine confidence in the penalty phase verdict, given the brutal 6 circumstances of the crime and petitioner’s penalty phase testimony. 7 Accordingly, the Court DENIES Claim 5(D)(39) but will consider counsel’s 8 deficiency in the cumulative error analysis. 9 21. Cumulative error (Claim 5(D)(40)) 10 In Claim 5(D)(40), petitioner alleges cumulative error from counsel’s many 11 instances of deficient performance. 12 a. Guilt phase 13 The Court has found many deficiencies in counsel’s performance at the 14 guilt phase. Counsel failed to realize that a diminished capacity defense due to 15 petitioner’s mental condition was available, and he failed to investigate and 16 present that defense. Counsel also failed to investigate petitioner’s biological 17 family, and such an investigation would have alerted petitioner’s experts to the 18 circumstances of petitioner’s prenatal development and birth, as well as the 19 prevalence of mental illness in petitioner’s biological family. Information about 20 petitioner’s biological family could have changed the outcome of petitioner’s 21 psychological evaluations, lending additional support to a diminished capacity 22 defense. Moreover, counsel failed to investigate and present evidence about the 23 dysfunctional home in which petitioner was raised, which also would have helped 24 explain petitioner’s psychological problems and, consequently, supported a 25 diminished capacity defense at guilt. Along the same lines, counsel failed to 26 investigate or present evidence about petitioner’s neurological deficits and mental 27 impairments. Evidence that petitioner suffered brain damage also would have 28 buttressed a claim of diminished capacity at the guilt phase. Counsel did not retain

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1 a social historian or otherwise gather the information necessary to create a social 2 history for petitioner. Furthermore, trial counsel failed to present the jury with 3 evidence about the stressful circumstances at play in petitioner’s life right before 4 the crimes took place. Finally, counsel failed to object to the admission of 5 evidence that petitioner wanted to find a homosexual to beat up and rob on the 6 night of Edna Bristol’s murder, and he further failed to object to the prosecutor’s 7 argument about that act. 8 Counsel’s performance at the guilt phase resulted in many errors and 9 omissions. While counsel did present evidence in support of a diminished capacity 10 defense based on intoxication, he failed to pursue the best possible defense at guilt: 11 that due to mental deficiency, neurological deficits and inadequate parenting, 12 petitioner lacked the capacity to form the specific intent to rape and kill his 13 victims. Counsel testified that he spent the bulk of his time preparing for the guilt 14 phase, a surprising approach given petitioner’s confession and the circumstantial 15 evidence implicating petitioner. (See 1 CDD 11.) Although counsel chose to 16 focus the majority of his energy on the guilt phase, counsel inexplicably failed to 17 conduct an adequate investigation, to provide his experts with relevant information 18 and to prevent the jury from hearing prejudicial character evidence that made 19 petitioner seem cruel and unfeeling. These mistakes were certainly harmful. 20 Despite these many errors, however, petitioner has not shown the probability of a 21 different outcome at the guilt phase. Petitioner’s confession still would have been 22 admitted, even without counsel’s various deficiencies. Evidence of petitioner’s 23 diminished capacity due to mental condition likely would have been insufficient to 24 overcome the confession. The jury rejected a diminished capacity defense based 25 on intoxication. Moreover, the jurors may have been aware that the electorate had 26 voted to eliminate the defense of diminished capacity due to mental defect 27 eighteen months before trial. The publicity concerning that referendum may have 28 created an environment inhospitable to a diminished capacity defense based on

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1 mental condition. Petitioner’s cumulative IAC claim based on counsel’s guilt 2 phase performance fails. 3 b. Penalty phase 4 Petitioner also alleges cumulative IAC based on counsel’s performance at 5 the penalty phase. Counsel performed deficiently at the penalty phase in the 6 following ways: by failing to investigate and present evidence about petitioner’s 7 biological family; failing to investigate and present evidence about the 8 dysfunctional nature of petitioner’s adopted family; failing to present evidence of 9 petitioner’s mental condition known to counsel at the time of trial; failing to 10 question experts about documents in counsel’s possession, such as adoption, 11 Montessori and counseling records from petitioner’s childhood that trial counsel 12 had prepared as exhibits for trial; failing to investigate and present evidence of 13 petitioner’s neurological and mental impairment; failing to retain a social historian 14 or to otherwise gather the information necessary to putting together petitioner’s 15 social history; putting petitioner on the stand at penalty, but asking him only about 16 the circumstances of the crime and failing to put on expert testimony to explain his 17 cool affect; failing to call Officer Williams to testify as a character witness; failing 18 to object to evidence that petitioner wanted to find and did find a homosexual to 19 beat up and rob on the night of Edna Bristol’s murder and failing to object to the 20 prosecutor’s argument about that event; and failing to present evidence about the 21 stressful and chaotic circumstances in petitioner’s life at the time of the crimes. 22 Counsel testified that these decisions were not strategic. 23 Counsel also testified that petitioner’s trial was his first death penalty trial. 24 He was “out of [his] element and did not know what [he] was supposed to do for 25 the penalty phase.” (1 CDD 11.) Counsel explained that “Judge Mullendore 26 agreed at the beginning of the trial to give me a few days between the guilt verdict 27 and the beginning of the penalty phase to get my case together.” (Id.) Those days 28 were not enough. Counsel’s omissions “clearly demonstrate that trial counsel did

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1 not fulfill [his] obligation to conduct a thorough investigation of [petitioner’s] 2 background. Williams (Terry), 529 U.S. at 396 (quoting 1 ABA Standards for 3 Criminal Justice 4-4.1, cmt, p. 4-55 (2d ed. 1980)). The evidence presented at the 4 penalty phase was incoherent, jumbled and woefully incomplete. The jury did not 5 hear any evidence about petitioner’s unfortunate beginning. The jury did not 6 know that petitioner was conceived by a 14-year-old girl who used drugs and 7 alcohol habitually during her pregnancy. Nor did the jury learn that petitioner’s 8 birth father was an unemployed, incarcerated 18-year-old who beat the mother of 9 his baby while she carried petitioner. The jury did not learn that petitioner’s 10 biological parents and extended families suffered from many serious mental 11 illnesses. The jurors did not know that petitioner was born with forceps, long 12 known to cause neurological damage. Neither the jury nor petitioner’s 13 psychological experts knew any of this information. 14 While counsel put on testimony that petitioner’s adoptive mother, Naomi, 15 suffered from schizophrenia, the jury did not hear any testimony about the effect 16 that Naomi’s severe mentally disability had on petitioner as an infant, child and 17 adolescent. The jury did not hear evidence about the abuse petitioner endured, 18 including his mother sitting on him to calm him down, tying him up as a form of 19 play and administering enemas as a way to cleanse him and keep him calm. The 20 jury did not hear about how petitioner’s father encouraged petitioner to engage in 21 age-inappropriate behavior, such as boxing and turning off a circuit breaker at age 22 five, backing a car out of the driveway at age eight and driving a motorcycle, 23 without a license, at age fifteen. Petitioner was involved in numerous accidents 24 from a young age, many involving head injuries. Petitioner was largely neglected 25 or ignored and was basically on his own from a young age. The jury did not hear 26 this evidence. 27 Counsel had, in his possession, evidence that petitioner suffered from 28 serious psychological problems based on Dr. Maloney’s pre-trial evaluation of

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1 petitioner. Counsel did not elicit this testimony during trial. Counsel prepared 2 various exhibits for trial, including petitioner’s records from the Montessori school 3 he attended as a youngster, the records from the Hernandez family’s attempt to 4 adopt a second child and the records from the St. Thomas More Clinic, where 5 petitioner had a psychological evaluation at age five. These records showed that 6 petitioner exhibited signs of mental illness and neurological damage as young 7 child. The jury did not hear any of this evidence. 8 In addition to the documentary clues that petitioner suffered from mental 9 illness since childhood, Dr. Maloney told counsel that petitioner was psychotic at 10 one time. Dr. Girsh told counsel that there might be a neurological or organic 11 basis for petitioner’s behavior and that petitioner had dyslexia. Counsel knew that 12 petitioner started using alcohol and drugs in elementary school, and that he became 13 a heavy user of mind-altering substances in his teen years. Torelli’s file shows that 14 Torelli planned to consult a psychiatrist and neurosurgeon. (1 CT 174.) 15 Moreover, as discussed, counsel did not know, but should have known, that 16 petitioner was subjected to drugs, alcohol and violence in utero, and that he was 17 delivered with the help of forceps. Counsel did not arrange for a neurological 18 examination of petitioner, which would have shown that petitioner suffers from 19 brain damage. This brain damage impairs petitioner’s ability to perceive emotion 20 accurately and to give an appropriate emotional response. Expert testimony 21 explaining these problems could have mitigated petitioner’s perceived culpability. 22 Counsel did not retain a social historian, nor did he take other steps to gather 23 the information necessary to create a social history for petitioner. Because of 24 counsel’s failures, the jury did not get an accurate sense of petitioner’s life. 25 Trial counsel put petitioner on the stand at the penalty phase. Counsel 26 proceeded to ask petitioner only about the circumstances of the crime, rather than 27 about his background or upbringing. Petitioner testified that he could not 28 remember many details of the crimes, though he had confessed to them. On cross-

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1 examination, the prosecutor impeached petitioner with his confession, noting the 2 many ways in which petitioner’s penalty phase testimony seemed false or self- 3 serving. To make matters worse, counsel’s inadequate investigation did not allow 4 petitioner’s mental health experts to offer testimony that would explain petitioner’s 5 bizarre affect as he testified. Had counsel conducted an adequate investigation, 6 petitioner’s experts would have had information about petitioner’s biological 7 family and his dysfunctional home life, and petitioner would have had a 8 neurological examination. This additional information would have allowed an 9 expert to explain why petitioner may have been unable to perceive his victims’ 10 fear or anger accurately and why he could not react appropriately during the 11 crimes. With adequate investigation and a neurological exam, petitioner also 12 could have offered testimony that petitioner had a history of dissociating, which 13 was a coping mechanism he adopted in childhood. An expert could have testified 14 that petitioner likely dissociated during the crimes. This fact would have 15 explained why his confession appeared so detailed but why he could not remember 16 many things when he testified at the penalty phase. 17 Counsel also failed to call Officer Williams to testify, despite subpoenaing 18 him for trial. Officer Williams, a former police officer injured in the line of duty, 19 would have testified that he knew petitioner well, approved of petitioner’s 20 relationship with Officer Williams’s daughter and thought petitioner had a future if 21 he applied himself. 22 Counsel also failed to object to testimony and related argument regarding 23 petitioner’s statements in his confession that he went out looking for a homosexual 24 to rob and beat up before Edna Bristol’s murder. This testimony tended to show 25 that petitioner was a violent bully, preying on vulnerable people without any 26 empathy for their defenseless position. This impermissible character evidence 27 only served to make petitioner seem like a callous monster. 28 Finally, counsel failed to put on evidence, in his possession, that petitioner

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1 was experiencing an incredible amount of stress in the weeks leading up to his 2 crimes. Petitioner was eighteen, unemployed and on parole from the California 3 Youth Authority. His father had sold the family home to move in with his 4 girlfriend and gave petitioner a van to live in. Petitioner was forced to give up his 5 dog because the dog could not live in his van. Petitioner’s fiancée miscarried and 6 then broke up with petitioner. Shortly afterwards, his fiancée’s parents broke off 7 contact with petitioner. Petitioner was abusing drugs and alcohol regularly. His 8 only consistent social support was a friend who was homeless and drug-addicted. 9 Petitioner did not have regular contact with his parents. He was not enrolled in 10 school. He did not have the structure of a job or incarceration. He was a young 11 adult suffering from brain damage and bipolar disorder with inadequate resources 12 to cope with the incredible stress in his life. 13 The jury did not hear any of this evidence. “Instead, the jurors . . . saw only 14 glimmers of [petitioner’s] history, and received no evidence about its significance 15 vis-a-vis mitigating circumstances. Ainsworth, 268 F.3d at 874 (internal quotation 16 marks omitted). As in Rompilla, the mitigating evidence that could have been 17 presented “bears no relation to the few naked pleas for mercy actually put before 18 the jury.” Rompilla, 545 U.S. at 393. “[T]he undiscovered mitigating evidence, 19 taken as a whole, might well have influenced the jury’s appraisal of [petitioner’s] 20 culpability.” Id. (internal quotation marks omitted). 21 Counsel failed to present a compelling narrative of petitioner’s life. With 22 adequate investigation and preparation, counsel could have told a story of genetic 23 vulnerability, exacerbating environmental factors, child neglect, sexual abuse that 24 bore a strong relationship to the crimes and the many negative effects of being 25 raised by a severely mentally ill mother and an oblivious, unequipped father. 26 Petitioner’s biological mother gave him up so that he could have a chance, but 27 petitioner was adopted into a horrible situation. His adoptive parents failed him. 28 Despite awareness by various institutions that petitioner was a troubled, unwell

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1 child, he remained in the care of his abusive, inadequate parents. Petitioner had 2 little to no chance to develop into a normal, well-adjusted young man. “It goes 3 without saying that the undiscovered mitigating evidence, taken as a whole, might 4 well have influenced the jury’s appraisal of [petitioner’s] culpability, and the 5 likelihood of a different result if the evidence had gone in is sufficient to 6 undermine confidence in the outcome actually reached at sentencing.” Rompilla v. 7 Beard, 545 U.S. at 393 (internal quotation marks omitted); compare Pinholster, 8 131 S.Ct. at 1408-10 (denying petition where prosecution presented extensive 9 aggravating evidence, mother provided detailed testimony about petitioner’s bad 10 childhood at trial and the habeas proceedings revealed little additional evidence 11 that was either mitigating or not cumulative). 12 The cumulative effect of trial counsel’s errors at the penalty phase compel a 13 conclusion that petitioner suffered the ineffective assistance of trial counsel. 14 United States v. Tucker, 716 F.2d 576, 595 (9th Cir. 1983) (“a court may find 15 unfairness—and thus prejudice—from the totality of counsel’s errors and 16 omissions.”). The brutal nature of the crimes does not foreclose a finding of 17 prejudice. See, e.g., Lambright v. Schriro, 490 F.3d 1103, 1121-27 (9th Cir. 18 2007); Summerlin, 427 F.3d at 643; Stankewitz, 365 F.3d at 723, 724-35; 19 Ainsworth, 268 F.3d at 878; see also Douglas v. Woodford, 316 F.3d 1079, 1091 20 (9th Cir. 2003) (“The gruesome nature of the killing did not necessarily mean the 21 death penalty was unavoidable.”). 22 In addition to counsel’s many errors, the Court is aware of the personal 23 circumstances counsel faced at the time of trial. Counsel was appointed to 24 represent petitioner in March of 1982. Petitioner’s trial began a year later. In 25 December of 1982, a little more than three months before trial, counsel was 26 diagnosed with esophageal cancer. Esophageal cancer had a recovery rate of only 27 two percent at the time. Counsel had surgery to have part of his stomach and 28 esophagus removed the same month as his diagnosis. Counsel’s doctors believed

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1 that excessive drinking and smoking had caused counsel’s cancer. Accordingly, 2 counsel’s wife organized an intervention while counsel recovered from surgery in 3 the hospital. During that timeframe, counsel took a lot of pain medication, 4 including Percodan. He sometimes took up to eight a day. He also began a course 5 of weekly chemotherapy. Counsel was unable to work on petitioner’s case from 6 early December until mid-February. His time cards to not include any entries from 7 December 3, 1982 through February 16, 1983. (1 CDD 8-9.) 8 When counsel returned to work in February 1983, he discussed his 9 condition with the trial judge in chambers: 10 He was a friend of mine and I think he called me into 11 chambers, commented that I was not looking too well and asked if I wanted to be relieved. I think this discussion was off the record. I 12 told him I thought I was okay but that I wouldn’t hold it against him if 13 he decided to appoint someone else. I wasn’t feeling very well, but Judge Mullendore was a friend and I felt badly the case had already 14 been delayed because of the Public Defender’s conflict, and I did not want to be the cause of further delay. I also think that I was in denial 15 about the seriousness of my situation and did not want to believe that 16 I was not well enough to try the case. I had no idea at that point how debilitating the chemotherapy treatment would be. 17 18 (1 CDD 9-10.) The trial court appointed a second attorney to assist counsel. His 19 “role was a limited one; he was not appointed to play an active part in the trial but 20 only to assist me by picking up transcripts, taking notes and other odds and ends. 21 During trial, he was like a baby sitter; he would drive me to his house during the 22 noon recess so that I could take a nap. He did not participate in any of the strategic 23 decisions but basically functioned as a ‘gofer.’” (1 CDD 10.) 24 As trial continued, the cumulative effects of the chemotherapy wore on 25 counsel. He recalls: “I was very tired all the time . . . . I could not eat during the 26 day, because I would throw up or be afraid that I would throw up. When I tried to 27 eat at night, I would throw up or get dry heaves. My weight dropped from 180 to 28 135, and my focus and attention were off[.] [M]y hair turned grey and I stopped

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1 washing it because I did not want to lose it.” (1 CDD 11.) He describes his work 2 habits both prior to and during trial: 3 When I was in trial prior to my illness, I would work on the 4 case all the time—at lunch, after dinner and on week-ends, and my 5 life would revolve around the trial. My work habits were much different during Francis’[s] trial. I was tired and barely made it 6 through the day. I would nap at lunchtime and could only work for 7 about an hour at the end of the court day and then I would go home, try to eat and sleep. My life revolved around chemotherapy: I was 8 preoccupied with when I would take it, when I would see the doctors, when I would get my blood tests, and that sort of thing. At that point, 9 my survival was very much in doubt. It was a very difficult time, and 10 the chemotherapy did such a job on me that five years later it caused my wife to refuse chemotherapy to treat her cancer and she died as a 11 result. 12 13 (1 CDD 11-12.) 14 The Court granted summary judgment to respondent based on petitioner’s 15 claim that counsel’s illness, on its own, denied petitioner the effective assistance of 16 counsel. (Summary Judgment Order at 16-19.) It is still the case that counsel’s 17 serious illness during trial preparation, trial and sentencing does not stand alone as 18 a basis for habeas relief. However, counsel’s illness does help explain the many 19 deficiencies at trial: “Having cancer was a death warrant and I had a lot of things 20 that I had planned to do that I simply forgot to do, didn’t do, a lot of things 21 changed in one hell of a hurry.” (10 CDD 37-38.) Moreover, many court’s have 22 recognized that an attorney’s physical or mental illness may impair counsel’s 23 judgment. See, e.g., Tippins v. Walker, 77 F.3d 682, 686 (2nd Cir. 1996) 24 (recognizing that the effectiveness of counsel depends in part on the attorney being 25 present and attentive); Gravley v. Mills, 87 F.3d 779, 786 (6th Cir. 1996) 26 (recognizing that many of counsel’s mistakes may be attributed to medication and 27 that counsel’s illness “had to have been a major distraction” during trial); see also 28 Smith v. Ylst, 826 F.2d 872, 876 (9th Cir. 1987) (“Although there is some merit to

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1 the argument that a mentally unstable attorney may make errors of judgment that 2 are essentially unidentifiable by a reviewing court, it is reasonable to treat such 3 cases under the general rule requiring a showing of prejudice . . . . We believe 4 it . . . . prudent to evaluate the attorney’s actual conduct of a trial in light of 5 allegations of mental incompetence.”) 6 Counsel’s many errors, committed when he was unable to perform 7 competently, resulted in constitutionally inadequate representation. “Here, 8 [petitioner] has alleged mitigating facts that might well have rebalanced the scale 9 against death for some jurors.” Stankewitz, 365 F.3d at 275. 10 Accordingly, the Court GRANTS Claim 5(D)(40). 11 D. Juror Misconduct Claims & Related IAC Claims 12 1. Juror Wagner’s contact with her minister during 13 deliberations (Claims 4(A)(1) & Claim 4(A)(7)(d)) 14 In Claims 4(A)(1) and 4(A)(7)(d), petitioner contends that Juror Louise 15 Wagner consulted with her minister during a weekend break in the penalty phase 16 deliberations and that this instance of juror misconduct prejudiced him. 17 a. Relevant Facts 18 The Court held an evidentiary hearing on this claim. Prior to the evidentiary 19 hearing, Juror Wagner signed conflicting declarations. In the first declaration, 20 which petitioner submitted, Juror Wagner made the following statements: 21 During the trial, after the guilt phase and while the penalty 22 phase was ongoing, I met with my Episcopalian Priest at our Church, St. Francis Episcopal Church, in Palos Verdes Estate, California. It 23 was a Sunday and I had a private discussion with my priest the 24 Reverend Mr. Robert A. TOURIGNEY, since retired. There were no other persons present at the time of our discussion . . . . 25 The conversation with my priest gave me an opportunity to talk 26 to someone. During my discussion with the Reverend Mr. Tourigney, 27 I told him that I was a juror in a criminal trial. I told him that I was agonizing over the fact that I had to make a decision that could mean 28 life or death for the individual on trial. The only comment Reverend

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1 Tourigney made was to say that the only thing I had to consider was whether or not there was a possibility of rehabilitation. He made no 2 other statements. 3 4 (8/9/90 Declaration of Louise M. Wagner (“Wagner Decl. 1"), ¶ 3-4.) About four 5 months later, Juror Wagner signed a second declaration, which respondent 6 obtained. She clarified her earlier declaration, as follows: 7 In Paragraph 4, it states, in part, “The only comment Reverend 8 Tourigney made was to say that the only thing I had to consider was 9 whether or not there was a possibility of rehabilitation. He made no other comments.” ¶ This statement is misleading to the extent that I 10 should consider only rehabilitation or that I could not consider anything else. The Reverend Tourigney never said to only consider 11 rehabilitation. ¶ The more accurate statement would be that “The 12 Reverend Tourigney said that I had to consider whether or not there was a possibility of rehabilitation, and that any decision on the 13 outcome of any trial would be mine and mine alone.” ¶ The meeting with Rev. Tourigney took place after Sunday mass in the Coffee 14 Room with perhaps 100-150 people milling about. The Reverend 15 Tourigney spent less than 60 seconds with me, while mingling about the room to greet church-goers. 16 17 (12/14/89 Declaration of Louise M. Wagner (“Wagner Decl. 2"), ¶ 3-6.) In 18 response to Juror Wagner’s second declaration, petitioner submitted the 19 declaration of Edward O’Shea, a private investigator who obtained Juror Wagner’s 20 first declaration and who attested to its accuracy. 21 The Court granted an evidentiary hearing in part because the facts 22 concerning what Rev. Tourigney told Juror Wagner were in dispute. The Court 23 reasoned that if Rev. Tourigney in fact told Juror Wagner to consider only 24 rehabilitation, that advice would have been in direct contravention of the law, 25 which requires a capital jury at the sentencing phase to “be able to consider and 26 give effect to all mitigating evidence offered by [the] petitioner.” (Order Granting 27 Petitioner’s Motion for Evidentiary Hearing in Part and Denying Motion in Part 28 (“Evidentiary Hearing Order”), filed Dec. 21, 1999 (Docket No. 119) at 10-11

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1 (citations and internal quotation marks omitted).) 2 As part of the evidence taken at the evidentiary hearing, the parties deposed 3 all of the surviving jurors, including Juror Wagner. Juror Wagner attended mass 4 each Sunday at St. Francis Episcopal, and she respected Rev. Tourigney, who 5 served as the rector of the church. (Wagner Depo. at 17, 21-22.) On Sunday, May 6 8, 1983, during a weekend break in the penalty phase deliberations, Juror Wagner 7 attended services at St. Francis. (Id. at 21.) That day, Juror Wagner spoke with 8 Rev. Tourigney during coffee time after mass. (Id. at 20, 29.) She did not have “a 9 private, special meeting” with Rev. Tourigney, but, instead, the two spoke just a 10 couple of sentences during a brief encounter. (Id. at 29; see also id. at 30 (“I 11 didn’t have a private discussion with him . . . . He was standing off to the side and 12 I went over and said what was on my mind, and then he came back with one 13 sentence.”).) Juror Wagner recalls that Rev. Tourigney told her that the “[m]ain 14 thing was the decision would be whether he—the guilty one could be rehabilitated 15 or not.” (Wagner Depo. at 37-38.) She explained further that, “He—he indicated 16 that my decision should be based on whether I felt he could be rehabilitated or 17 not.” (Id. at 38.) “He led me to believe that was the main thing in making the 18 decision, in making my decision . . . . That was the one sentence that he spoke to 19 me.” (Id. at 38-39.) “I told you he said one sentence . . . If he [was] capable of 20 being rehabilitated.” (Id. at 48.) 21 Counsel for respondent questioned Juror Wagner about her second 22 declaration. As discussed, respondent obtained Juror Wagner’s second declaration 23 to clarify her earlier statement that Rev. Tourigney told Juror Wagner that the 24 “only thing” she needed to consider was whether or not petitioner could be 25 rehabilitated. The second declaration, specifically paragraph 5 of that declaration, 26 qualified Juror Wager’s first statement as follows: “The more accurate statement 27 would be that ‘The Reverend Tourigney said that I had to consider whether or not 28 there was a possibility of rehabilitation, and that any decisions on the outcome of

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1 any trial would be mine and mine alone.’” (Wagner Decl. 2 at ¶ 5.) After reading 2 paragraph 5 during her deposition, however, Juror Wagner stated, “I don’t think he 3 ever said that, and I never thought it.” (Wagner Depo. at 37.) This testimony 4 effectively repudiates Juror Wagner’s second declaration, which modified her 5 original statement that Rev. Tourigney told her that the only thing she needed to 6 consider was rehabilitation. 7 The parties also deposed Edward O’Shea, a private investigator. O’Shea 8 worked with the Philadelphia Police Department for twenty-five years, fifteen of 9 those years as a detective. (O’Shea Decl. at 5.) He became a private investigator 10 in 1984 and still worked in that trade at the time of his deposition in 2000. (Id.) 11 He interviewed Juror Wagner, with her husband present, three times in 1989. (Id. 12 at 7-8.) Juror Wagner told O’Shea that Rev. Tourigney said that “the only thing 13 she had to worry about was whether or not the defendant could be rehabilitated, 14 that “the only thing [she] had to consider was whether or not there was a 15 possibility of rehabilitation.” (Id. at 8-9.) At the second meeting, Juror Wagner 16 told O’Shea that “the priest told her the only thing that she would have to worry 17 about was whether or not the defendant could be rehabilitated.” (Id. at 11.) 18 O’Shea used his notes to draft an affidavit. (Id.) He met with Mr. and Mrs. 19 Wagner a third time on August 9, 1989. (Id.) First, Mr. Wagner, an attorney, 20 reviewed the affidavit, followed by Juror Wagner. (Id.) According to O’Shea, 21 “[b]oth took great pains in reading it. Both—there was nothing in the affidavit 22 that they questioned or asked.” (Id. at 12.) He also said, “They read it, and upon 23 completion of reading it, they both agreed that it was an exact replica of what the 24 contents of her statement was on the 4th. There was no problem in signing it. 25 They were very amicable.” (Id.) 26 During the evidentiary hearing, the parties also explored whether 27 Juror Wager told the other jurors about her conversation with Rev. Tourigney. 28 When asked whether she mentioned her conversation with Rev. Tourigney to the

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1 other jurors, Juror Wagner provided this confusing answer: “No. They had made 2 their decisions, so I tell them about we’ve—what are they, think I might have.” 3 (Wagner Depo. at 26.) It is unclear whether Juror Wagner told the other jurors 4 about the substance of her conversation with Rev. Tourigney. It seems as if she 5 qualified her initial answer, “No” that she did not tell the other jurors with the last 6 phrase, “think I might have.” George Barber, the foreman, testified that he 7 remembered a female juror entering the jury room during the penalty phase 8 deliberations and announcing that she had consulted with her minister about the 9 case. (Barber Depo. at 14-15.) He believes that Juror Wagner made the 10 announcement “in the jury room at the first part of the day.” (Id. at 15.) Juror 11 Barber stated that “maybe [the jury] hadn’t started deliberating,” but that Juror 12 Wagner said it “while we were all in there.” (Id.; see also Barber Depo. at 16 (“To 13 the best of my memory, it would be that it happened at the jury room.”), 55 14 (testifying that Juror Wagner’s statement that she talked to her minister “was 15 before the trial was over”).) Juror Karen McCracken testified that she remembered 16 a juror having consulted with a reverend during trial. (McCracken Depo. at 30.) 17 She remembered that the incident occurred during the penalty phase of trial and 18 that the juror discussed her consultation with the minister in the jury room, but she 19 could not definitively pinpoint when it happened. (Id. at 30, 46.) Juror 20 McCracken did not remember Juror Wagner discussing the particulars of her 21 conversation with her minister. (Id. at 31.) 22 In sum, the evidence shows the following: Juror Wagner attended her 23 church during the weekend recess in penalty phase deliberations. She briefly 24 consulted with the rector of her church, who told her either that the “only thing” or 25 “main thing” she had to consider in deciding on the appropriate penalty was 26 whether petitioner could be rehabilitated. Juror Wagner announced to the jury, in 27 the jury room, that she had consulted her minister, but she probably did not share 28 the details of the conversation with her fellow jurors.

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1 b. Applicable law 2 “The Sixth Amendment guarantees criminal defendants a verdict by 3 impartial, indifferent jurors.” Dyer, 151 F.3d at 973; see also Fields, 503 F.3d at 4 772 (stating that a defendant’s right to a fair trial means that he or she is entitled to 5 “a jury capable and willing to decide the case solely on the evidence before it.”) 6 (internal quotation marks and citation omitted). “Jury exposure to facts not in 7 evidence deprives a defendant of the rights to confrontation, cross-examination 8 and assistance of counsel embodied in the Sixth Amendment.” Eslaminia v. 9 White, 136 F.3d 1234, 1237 (9th Cir. 1998). 10 Not every constitutional error supports the grant of a habeas petition, 11 however. Eslaminia, 136 F.3d at 1237. No “bright line test exists to assist courts 12 in determining whether a petitioner has suffered prejudice from juror misconduct.” 13 Mancuso v. Olivarez, 292 F.3d 939, 950 (9th Cir. 2002), as amended on denial of 14 rehearing. The key question becomes whether the constitutional error “had a 15 substantial and injurious effect or influence in determining the jury’s verdict.” 16 Brecht v. Abrahamson, 507 U.S. 619, 627 (1993) (citing Kotteakos v. United 17 States, 328 U.S. 750, 776 (1946)). The Court should place “great weight on the 18 nature of the extraneous information that has been introduced into deliberations.” 19 Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir. 2000), as amended on denial of 20 rehearing (internal quotation marks and citation omitted). “Juror misconduct 21 which warrants relief generally relates directly to a material aspect of the case.” 22 Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997) (internal quotation 23 marks and citation omitted), overruled on other grounds by Payton v. Woodford, 24 346 F.3d 1204, 1218 (9th Cir. 2003) (en banc), reversed on other grounds by 25 Brown v. Payton, 544 U.S. 133 (2005). 26 Various factors help determine “whether the prosecution has successfully 27 rebutted the presumption of prejudice arising from the introduction of extraneous 28 evidence.” Dickson, 849 F.3d at 406. These factors include (1) whether the

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1 material was actually received; (2) the length of time the information was available 2 to the jury; (3) the extent to which the jurors discussed and considered the 3 information; (4) whether the material was introduced before a verdict was reached; 4 and (5) any other matters which may bear on the issue. Jeffries v. Wood, 114 F.3d 5 1484, 1492 (9th Cir. 1997) (en banc) (citing Bayramoglu v. Estelle, 806 F.2d 880, 6 887 (9th Cir. 1986)). While instructive, these considerations do not definitively 7 decide the issue of prejudice. Dickson, 849 F.2d 406; see also Jeffries, 114 F.3d at 8 1489-90 (holding that other “factors might . . . suggest that the potential prejudice 9 of the extrinsic information was diminished in a particular case and therefore that 10 the extrinsic evidence did not substantially and injuriously affect the verdict.”). 11 The Court also may take into account (1) whether the prejudicial statement was 12 ambiguously phrased; (2) whether the extraneous information was otherwise 13 admissible or merely cumulative of other evidence adduced at trial; (3) whether a 14 curative instruction was given or some other step taken to ameliorate the prejudice; 15 (4) the trial context; and (5) whether the statement was insufficiently prejudicial 16 given the issues and evidence in the case. Id. at 1491-92. An error that does not 17 have a substantial and injurious effect on the outcome of the trial is deemed 18 harmless. Eslaminia, 136 F.3d at 1237 (citing Bonin, 59 F.3d at 824). 19 The Court must limit the evidence it considers in evaluating the jury’s 20 exposure to improper evidence and the prejudice flowing from that error. 21 Sassounian, 230 F.3d at 1108. Federal Rule of Evidence 606(b) states: 22 23 [A] juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of 24 anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or 25 indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous 26 prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear 27 upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any 28 statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

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1 Fed. R. Evid. 606(b). “A long line of precedent distinguishes between juror 2 testimony about the consideration of extrinsic evidence, which may be considered 3 by a reviewing court, and juror testimony about the subjective effect of evidence 4 on the particular juror, which may not.” Sassounian, 230 F.3d at 1108. In short, 5 “the question of prejudice is an objective, rather than a subjective, one.” Dickson, 6 849 F.2d at 406; see also Rodriguez, 125 F.3d at 744 (“We are not to consider 7 evidence concerning the subjective impact of extrinsic evidence on the 8 deliberation process, and instead focus on an objective inquiry into the potential 9 for prejudice from the extraneous information.”) The Court must therefore ignore 10 Juror Wagner’s testimony about how the conversation she had with her minister 11 actually influenced her during the deliberative process, although such testimony 12 would provide “the most direct evidence of prejudice.” Sassounian, 230 F.3d at 13 1109. This lends an “Alice in Wonderland quality to the discussion of whether 14 [petitioner] was actually prejudiced by the admitted jury misconduct,” but it is 15 nevertheless what the law requires. Id. (internal quotation marks and citation 16 omitted). 17 c. Analysis 18 The facts demonstrate that an error took place during the penalty phase. 19 Juror Wagner sought advice from her rector, Rev. Tourigney, who told Juror 20 Wagner that rehabilitation was either the “only” or the “main” thing she had to 21 consider. Juror Wagner was therefore exposed to extraneous information. The 22 Court must look to the many factors enumerated in the case law to determine if 23 this error had a substantial and injurious effect on the penalty phase verdict. 24 First, the Court considers whether the material was actually received. It 25 was. Rev. Tourigney told Juror Wagner either that the “only” thing or the “main” 26 thing she should consider was petitioner’s potential for rehabilitation. The day 27 after her encounter with her rector, Juror Wagner announced to the jury that she 28 had consulted her minister, but she did not share the details of their conversation.

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1 Second, the Court must evaluate the length of time the information was 2 available to the jury. Juror Wagner talked to Rev. Tourigney on Sunday after 3 mass, so the information was available to her for a full day. She returned to 4 deliberate with the jury the next morning. Juror Wagner announced to her fellow 5 jurors that she consulted with Rev. Tourigney “at the first part of the day.” 6 (Barber Depo. at 15.) Deliberations began at 9:30 a.m., and the jury returned with 7 a verdict a few minutes after noon. (14 RT 3690.) The jurors knew Juror Wagner 8 had consulted with her minister for several hours before they reached a verdict, but 9 they did not know what Juror Wagner and the reverend discussed. 10 Third, the Court looks at the extent to which the jurors discussed and 11 considered the information. In this case, the jury did not discuss or consider the 12 advice Juror Wagner received from Rev. Tourigney because she did not share the 13 details of her conversation with the jury. The jury may have considered the fact 14 that Juror Wagner consulted her minister in its penalty phase deliberations. 15 Fourth, the Court should inquire whether the material was introduced before 16 a verdict was reached. The jury learned that Juror Wagner consulted 17 Rev. Tourigney for advice on how to vote in the penalty phase before the jury 18 reached a penalty phase verdict. She told her fellow jurors that she had consulted 19 her minister at the beginning of the last day of deliberations, and the court read the 20 penalty verdict just after noon. 21 In addition, the Court may consider a handful of other factors. First, the 22 statement by Rev. Tourigney, as reported by Juror Wagner, was not ambiguously 23 phrased. He told her that whether petitioner could be rehabilitated was the “only” 24 or “main” thing she needed to consider. The parties have spent a considerable 25 amount of post-hearing briefing arguing about whether Rev. Tourigney used the 26 words “only thing” or “main thing” when he talked to Juror Wagner. Juror 27 Wagner appears to have used the words “only thing” or “main thing” 28 interchangeably in describing her conversation with Rev. Tourigney. The

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1 distinction between the two phrases is one that makes little difference to the 2 ultimate outcome in any event, as discussed below. 3 Second, Rev. Tourigney’s statement that Juror Wagner should consider 4 rehabilitation as the “only” or “main” thing was neither admissible evidence nor 5 cumulative of other evidence adduced at trial. Also as discussed below, 6 Rev. Tourigney’s statements were in contravention to the law, so they certainly 7 would not have been admissible. His focus on rehabilitation did not constitute 8 cumulative evidence, though the parties did elicit some evidence regarding 9 rehabilitation at the penalty phase, and the prosecutor repeatedly mentioned the 10 issue in his closing. That issue also is discussed below. 11 Third, no curative instruction or other action was taken to ameliorate the 12 prejudice because neither the court, nor the attorneys knew about Juror Wagner’s 13 communication with her minister. 14 Lastly, the Court evaluates whether Rev. Tourigney’s advice to Juror 15 Wagner was insufficiently prejudicial given the issues and evidence in the case. 16 While only Juror Wagner was exposed to Rev. Tourigney’s advice on how to 17 approach the penalty phase deliberations, the Constitution guarantees petitioner’s 18 right “to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.” 19 Parker v. Gladden, 385 U.S. 363, 366 (1966); see also Dyer, 151 F.3d at 973 20 (“The bias or prejudice of even a single juror would violate [petitioner’s] right to a 21 fair trial.”); Dickson, 849 F.3d at 408 (“If only one juror was unduly biased or 22 improperly influenced, [petitioner] was deprived of his Sixth Amendment right to 23 an impartial panel.”). Moreover, Rev. Tourigney spoke to Juror Wagner about an 24 issue directly related to a material aspect of the case, namely whether or not she 25 should vote for life in prison or the death penalty. See Rodriguez, 125 F.3d at 744 26 (“Juror misconduct which warrants relief generally relates directly to a material 27 aspect of the case.”) (internal quotation marks and citation omitted). 28 Furthermore, Rev. Tourigney’s advice directly contravened the law, whether

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1 he told Juror Wagner that rehabilitation remained the “only thing” or the “main 2 thing” she had to consider. “The Eighth Amendment requires that the jury be able 3 to consider and give effect to all relevant mitigating evidence offered by 4 petitioner.” Boyde v. California, 494 U.S. 370, 377-78 (1990) (citing Lockett v. 5 Ohio, 438 U.S. 586 (1978)). Advice that Juror Wagner had to consider only 6 rehabilitation to the exclusion of other mitigating evidence would have violated 7 the constitutional mandate that jurors be allowed to consider all relevant mitigating 8 evidence presented by petitioner at trial. 9 Likewise, if Rev. Tourigney advised Juror Wagner to consider rehabilitation 10 as the “main thing,” such advice also would have violated the Constitution. The 11 California Supreme Court has held that the 1978 death penalty statute at force in 12 this case must not be construed to “require[] jurors to render a death verdict on the 13 basis of some arithmetical formula, or . . . to impose death on any basis other than 14 their own judgment that such a verdict was appropriate.” People v. Brown, 40 Cal. 15 3d 512, 540 (1985). The Brown Court also held that the use of the word 16 “weighing” in the death penalty statute 17 is a metaphor for a process which by nature is incapable of precise 18 description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of 19 factors on each side of the imaginary “scale,” or the arbitrary assignment of “weights” to any of them. Each juror is free to assign 20 whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider, including 21 factor (k) . . . . By directing that the jury ‘shall” impose the death penalty if it finds that aggravating factors “outweigh” mitigating, the 22 statute should not be understood to require any voter to vote for the death penalty unless, upon completion of the “weighing” process, he 23 decides that death is the appropriate penalty under all the 24 circumstances. 25 Id. at 541 (emphasis added). The Brown Court also held that the “jury must be 26 free to reject death if it decides on the basis of any constitutionally relevant 27 evidence or observation that it is not the appropriate penalty” and that “the 28 decision is the responsibility of the jury and no one else.” Id. at 540.

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1 Rev. Tourigney usurped Juror Wagner’s role by advising her to consider 2 rehabilitation as the only or main thing in her analysis. His advice suggested that 3 rehabilitation was the most important factor, and he assigned it the weight he 4 thought it should have, when that task is the exclusive province of the individual 5 jurors. Petitioner’s interest in Juror Wagner following the California death penalty 6 statute as construed by the California Supreme Court does not involve “the denial 7 of a procedural right of exclusively state concern.” Hicks v. Oklahoma, 447 U.S. 8 343, 346 (1980). Stated another way, “where . . . a State has provided for the 9 imposition of criminal punishment in the discretion of the trial jury, it is not 10 correct to say that the defendant’s interest in the exercise of that discretion is 11 merely a matter of state procedural law.” Id. “The defendant in such a case has a 12 substantial and legitimate expectation that he will be deprived of his liberty only to 13 the extent determined by the jury in the exercise of its statutory discretion, and that 14 liberty interest is one that the Fourteenth Amendment preserves against arbitrary 15 deprivation by the State.” Id. Rev. Tourigney advised Juror Wagner to elevate 16 one consideration, whether or not petitioner could be rehabilitated, over all of the 17 other factors contained in the death penalty statute. This advice directed Juror 18 Wagner to act outside her statutory discretion, as contemplated by California law. 19 “Such an arbitrary disregard of the petitioner’s right to liberty is a denial of due 20 process of law.” Hicks, 447 U.S. at 346. 21 To complicate matters, rehabilitation was an issue at the penalty phase. 22 Petitioner presented weak evidence of rehabilitation. Petitioner put his paternal 23 aunt—who saw him only a few times a year for his entire life—on the stand. 24 Petitioner’s counsel asked if she felt that she could help petitioner lead a 25 productive life in prison. She testified: 26 I know it is possible. I think Francis has the potential, given 27 his own motivation. ¶ If he is capable of making his own motivation for his deciding to do this and, second, if he can get the help that he 28 needs. I believe he needs strict supervision and that he needs to be in

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1 a very structured environment and that he needs not to be free to do as he pleases for a very long time. ¶ I also believe that he needs a great 2 deal of psychiatric help. I don’t know what kind of thing can be 3 arranged in the future, but I do know that once I get my nursing degree, I will be in a position to afford to pay for his private 4 psychiatric care, if such a thing is available. 5 (14 RT 3559-60.) Petitioner also put on two mental health experts, each of whom 6 offered testimony that petitioner may do well in a controlled prison setting. 7 Dr. Girsh, a clinical and forensic psychologist, testified that she had “no indication 8 that [petitioner] would be difficult” in a structured prison setting. (14 RT 3589- 9 90.) Dr. Maloney, a clinical psychologist, testified that “this type of person does 10 well if they have extreme limits” and that the structure of prison “may not alter the 11 underlying problem but would alter the behavior.” (14 RT 3479, 3484.) On cross 12 examination, the prosecutor elicited testimony from Dr. Maloney that “[i]f they did 13 offer [petitioner] treatment in the prison system . . . there is a possibility of 14 changing the underlying situation,” but his realistic hope for that possibility was 15 moderate based on “what’s available in the prison system.” (14 RT 3484.) 16 Trial counsel did not argue rehabilitation per se in his closing argument, 17 though he did twice mention that petitioner probably would do well in a structured 18 prison setting. (14 RT 3666, 3679.) In the prosecutor’s closing argument, 19 however, he repeatedly mentioned the issue of rehabilitation. (14 RT 3635 20 (“Psychologists have testified to what [petitioner] is, and considering the basis of 21 his background as to how he got there and how he can, if he can, change.”), 3648 22 (“Do you think he will change in principle? Dr. Maloney was asked if he had any 23 realistic hope for this. You saw him. He testified. His answer: Moderate, given 24 what’s available.”), 3648 (“Given what’s available, will he change? Will anybody 25 change once their personality problems have become fixed? Maybe. His mother 26 is hopeful that, given religious beliefs, maybe this will help, if not psychological 27 treatment. Presumably, both will be provided, if not by the prison facilities, by the 28 aunt who has a degree in theology and sociology, has worked with women in

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1 rehabilitation type settings before, and hopefully will commit herself to the 2 defendant and change him.”), 3677 (“Consider what he has done in the past, what 3 he is now as seen here, and what you think he can ever be.”)) 4 The evidence presented in the penalty phase, taken together with the 5 prosecutor’s focus on rehabilitation during his closing argument, increases the 6 likelihood that Rev. Tourigney’s advice had a substantial and injurious effect or 7 influence on the penalty phase verdict. The sum total of the rehabilitation 8 evidence presented included two psychologists testifying that petitioner may 9 function well in a highly structured prison setting; one psychologist testifying that 10 he had a moderate hope for the possibility of petitioner’s rehabilitation during 11 incarceration, but that he worried about the quality of care petitioner would 12 receive; and a paternal aunt without a close relationship with petitioner who 13 believed that petitioner could have a productive life while incarcerated, if he 14 became motivated to do so and if he received psychiatric care. This evidence 15 failed to present a compelling case for rehabilitation, which may explain why 16 counsel did not argue the issue in his closing. 17 Given the poor evidence and the prosecutor’s focus on rehabilitation, 18 Rev. Tourigney’s advice may have invited Juror Wagner to erroneously consider 19 petitioner’s poor prospects for rehabilitation as an aggravating factor. However, 20 the California Supreme Court has limited the jury’s consideration of aggravating 21 factors to those enumerated in the statute. People v. Boyde, 38 Cal. 3d 762, 773 22 (1985) (“By . . . requiring the jury to decide the appropriateness of the death 23 penalty by a process of weighing the specific factors listed in the statute, the 24 initiative necessarily implied that matters not within the statutory list are not 25 entitled to any weight in the penalty determination.”) A prosecutor may rely only 26 on the statutorily enumerated aggravating factors listed in California Penal Code 27 Section 190.3. Boyde, 38 Cal. 3d at 775-76. While the prosecution may attempt to 28 rebut evidence of rehabilitation introduced by a defendant, it may not rely on

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1 petitioner’s poor prospects for rehabilitation as an affirmative aggravating factor. 2 See Cal. Pen. Code § 190.3; People v. Benson, 52 Cal. 3d 754 (1990) (holding that 3 future dangerousness is not a statutory aggravating factor but that prosecutor could 4 attempt to rebut evidence admitted to show defendant would act peaceably in 5 prison). 6 Moreover, the prosecutor may argue that petitioner failed to put on 7 affirmative evidence of rehabilitation, but may not argue that the jury can consider 8 the paucity of evidence on the subject as a positive aggravating factor. See, e.g., 9 People v. Crittenden, 9 Cal. 4th 83, 149 (1994) (holding that “the prosecutor may 10 not argue that the absence of a mitigating factor constitutes the presence of an 11 aggravating factor”). Rev. Tourigney’s open-ended advice that the only or main 12 thing Juror Wager had to consider was whether petitioner could be rehabilitated 13 may have caused Juror Wagner to believe that she could consider the evidence 14 concerning rehabilitation, which tended to show that petitioner had a slim chance 15 at reforming himself, as a nonstatutory aggravating factor. Again, petitioner has 16 an individual liberty interest in Juror Wagner exercising her discretion as limited 17 by the California death penalty statute. Hicks, 447 U.S. at 346. Rev. Tourigney’s 18 advice could have impermissibly encouraged Juror Wagner to consider the low 19 likelihood of petitioner being rehabilitated as an aggravating factor, resulting in an 20 “arbitrary disregard of petitioner’s right to liberty,” and a consequent “denial of 21 due process of law.” Id. 22 In evaluating prejudice, “‘[t]he inquiry cannot be merely whether there was 23 enough to support the result.’” Olivarez, 292 F.3d at 950 (quoting Kotteakos, 238 24 U.S. at 765). The question the Court must answer is whether Juror Wagner’s 25 consultation with Rev. Tourigney, and his attendant advice that rehabilitation was 26 the only or main thing she should consider in deciding whether to vote for the 27 death penalty, “had a substantial influence.” Olivarez, 292 F.3d at 950 (citation 28 and internal quotation marks omitted). If the Court answers that question in the

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1 affirmative, or if the Court “is left in grave doubt, the conviction cannot stand.” 2 Olivarez, 292 F.3d at 939 950 (citation and internal quotation marks omitted). Put 3 another way, “[w]here the record is so evenly balanced that a conscientious judge 4 is in grave doubt as to the harmlessness of an error, the error is not harmless and 5 relief should be granted.” Jeffries, 114 F.3d at 1489-90; see also O’Neal v. 6 McAninch, 513 U.S. 432, 435 (1995) (“By ‘grave doubt’ we mean that, in the 7 judge’s mind, the matter is so evenly balanced that he feels himself in virtual 8 equipoise as to the harmlessness of the error.”) Given the nature of the advice 9 Rev. Tourigney offered Juror Wagner, its materiality to the penalty phase 10 deliberations and the degree to which the prosecutor focused on petitioner’s 11 inability to be rehabilitated, the Court is left with grave doubt as to the 12 harmlessness of this error. Juror Wagner’s consultation of her minister had a 13 substantial and injurious effect on the penalty phase verdict. 14 Accordingly, the Court GRANTS Claims 4(A)(1) and 4(A)(7)(d). 15 2. Jury’s exposure to prejudicial newspaper article (Claims 16 4(A)(2), & 5(D)(18), 5(D)(24) & 5(D)(25)) 17 In Claim 4(A)(2), petitioner claims that the jury was exposed to the contents 18 of a prejudicial newspaper article that identified petitioner as a suspect in the 19 strangulation of two girls in an unrelated case. Petitioner contends that this error 20 caused him substantial and injurious prejudice at the penalty phase. In Claim 21 5(D)(18), petitioner alleges that trial counsel failed to minimize the impact of false 22 reports that petitioner was linked to a criminal investigation in San Luis Obispo. 23 In Claim 5(D)(24), petitioner claims that trial counsel failed to renew his request to 24 sequester the jury during the penalty phase. In Claim 5(D)(25), petitioner claims 25 that trial counsel failed to challenge several jurors, even though he knew or should 26 have known that they had been exposed to the newspaper article. 27 The Court held an evidentiary hearing on Claim 4(A)(2). The order 28 granting an evidentiary hearing stated the following:

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1 Petitioner has alleged facts which, if proven, would entitle him to relief. Petitioner alleges that the jurors were exposed to extrinsic 2 evidence that he was the key suspect in two other strangulation 3 murders in San Luis Obispo County. This information was prejudicial because Petitioner had just been convicted of strangling 4 his victims in the instant case. Furthermore, if what Petitioner alleges is true, the jury had this information throughout the pendency of the 5 penalty phase, during which it was instructed to consider whether 6 aggravating circumstances, such as prior acts of violence committed by petitioner, outweighed any mitigating evidence. Extrinsic 7 evidence that Petitioner was being charged with other strangulation murders, therefore, was directly related to a material aspect of the 8 case. See Rodriguez v. Marshall, 125 F.3d at 744 (“Juror misconduct 9 which warrants relief generally relates ‘directly to a material aspect of the case’”) (citations omitted). 10 Moreover, Petitioner did not receive a full and fair hearing 11 regarding this issue in state court. Although the state trial court conducted a hearing, it was not complete. Specifically, the trial court 12 failed to ask two jurors, Juror Thornton and Juror Bovee, whether 13 they had “heard anything” pertaining to the article. In their declarations taken after the trial, however, Juror Thornton and Juror 14 Bovee stated that they had heard other jurors discussing the contents [of] the article in the jury room. Because Petitioner has alleged facts 15 which, if proved, would entitle him to relief, and he did not receive a 16 full and fair hearing regarding this issue in state court, this court grants his motion for an evidentiary hearing on this claim. 17 18 (Evidentiary Hearing Order at 16.) 19 a. Relevant Facts 20 The guilt phase concluded on Monday, April 25, 1983. (13 RT 3267-84.) 21 The trial court dismissed the jury with instructions to return for the penalty phase 22 on Thursday, April 28, 1983. (13 RT 3288.) That Thursday morning, an article 23 about petitioner appeared on the front page of the Independent Press Telegram, a 24 Long Beach newspaper, with the headline, “L.B. Killer Faces New Charge.” 25 (Petition for Writ of Habeas Corpus (filed in the Supreme Court of the State of 26 California), Exh. L.) Next to the headline appeared a photo of petitioner, bearing a 27 caption with his name and the words “Strong Suspect.” ( Id.) The article 28 continued on the back page of the front section of the paper with the headline,

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1 “L.B. Murderer Facing New Charge.” (Id.) The article focused on petitioner’s 2 connection to the strangulation murder of two preschool-aged girls in San Miguel. 3 (Id.) The article quoted a sheriff’s detective as describing the unsolved San 4 Miguel murders as having “very similar characteristics” to the Long Beach 5 murders because all of the victims had been strangled. (Id.) It also reported that 6 sheriffs detectives had confirmed that petitioner was in San Miguel on the day the 7 little girls disappeared and that he drove the same van used in the Long Beach 8 crimes. (Id.) The article stated that detectives investigating the San Miguel 9 murders attempted to interview petitioner about the crimes, but he refused to make 10 a statement. (Id.) In addition, the article stated that in his taped confession 11 regarding the Long Beach murders, petitioner asked for psychiatric help and told 12 authorities, “‘I never did anything like that (before) in my whole life.’” (Id.) The 13 parties have stipulated that petitioner is not considered a suspect in the San Miguel 14 murders. (Stipulation as to Facts Regarding Juror Misconduct, p. 1-2, ¶ 1 (filed 15 July 26, 2002)). 16 When the trial reconvened on Thursday, April 28th, petitioner’s counsel 17 moved for selection of a new penalty phase jury based in part on the newspaper 18 article that appeared in the Independent Press Telegram. (13 RT 3290-91.) The 19 trial court recessed until Monday, May 2, 1983, when it took up the motion. (13 20 RT 3292.) Petitioner’s counsel stated his concern that five of the jurors lived in 21 Long Beach and that three of them took the Independent Press-Telegram. (13 RT 22 3293-94.) After some back and forth, the trial court agreed to question the jurors 23 individually about whether they had read any articles about petitioner since 24 returning the guilty verdict. (13 RT 3297.) 25 On voir dire, Juror Huffman stated that she saw a headline before she could 26 stop herself but that she did not read the article. (13 RT 3301.) When she saw 27 petitioner’s name, she turned away. (13 RT 3301.) Juror Bovee stated that she 28 saw petitioner’s picture on the front page of the paper and that she read the caption

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1 underneath the photo. (13 RT 3304- 3305.) Juror Thornton admitted that he read 2 the entire article. (13 RT 3308.) Juror Barber stated that he did not read anything 3 about petitioner but that he heard there was something in the news, though “they 4 didn’t tell [him] what it was.” (13 RT 3306.) When asked by the trial court, 5 “There was no discussion as to what it was, is that right?” Juror Barber responded, 6 “No.” (13 RT 3306.) The rest of the jurors stated that they had not read anything 7 about petitioner. (13 RT 3303, 3306-07, 3307, 3308-09, 3309, 3309-10, 3310, 8 3311, 3312, 3313.) At the conclusion of voir dire, the trial court concluded that 9 Jurors Huffman, Bovee and Thornton were exposed to the article and excused all 10 of them from service. (13 RT 3313-14.) 11 Petitioner’s counsel argued that Juror Barber also had been potentially 12 exposed to the article and asked that the trial court question him again. 13 RT 13 3317-19.) The trial court obliged: 14 15 Q: Mr. Barber, you indicated that you had heard there was an article in the newspaper naming the defendant, is that 16 correct? 17 A: Yes. 18 Q: Did they mention what the subject of that article was 19 concerning . . . ? 20 A: No, only that it took the first page of the newspaper. 21 Q: Was there any mention of the subject matter at all? 22 A: No. 23 Q: There was no discussion about it, is that correct? 24 A: Just something that was about the first page, though. 25 The headlines in the newspaper is what they— 26 Q: In other words, is the court stating this fairly: 27 ¶ Someone told you there was an article on the first page of the paper and a headline, and you discussed the 28 defendant, is that correct?

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1 A: Well, what they said was—his wife is cutting out—doing 2 the editing of the paper prior to him reading it, and he said, “There must have been something important in 3 there, because she cuts out all the stuff that has to do 4 with this trial.” And it was on the front page of the paper, so he didn’t read what was there, and he said that 5 she only cuts out just the articles, and she cut out the whole front page, so— 6 7 Q: So they took his paper, huh? 8 (13 RT 3319-20 (emphasis added).) It is unclear if the italicized portion of the 9 quote indicates an error in the transcription or if the trial court erred in speaking. 10 The trial court concluded that Juror Barber had not been exposed to the article and 11 retained him on the jury. 12 The Court granted an evidentiary hearing to explore whether the jurors 13 learned about or discussed the newspaper article on the day it appeared in the 14 paper, as suggested by the declarations of Jurors Thornton and Bovee obtained in 15 1990 and 1989, respectively. Juror Thornton’s declaration stated that on the 16 morning the article appeared in the Independent Press Telegram, “I entered the 17 jury room but was unable to sit at the table because not only were all the regular 18 jurors present, but also all of the alternates.” (Reply Brief in Support of Petition 19 for Writ of Habeas Corpus (filed in the Supreme Court of the State of California), 20 Exh. F (“Thornton Decl.”) at 1, ¶ 3.) He continued, “On that occasion, I heard the 21 jurors discuss the contents of a newspaper article stating that Francis Hernandez 22 had been implicated in the murder of two other girls in Northern California.” 23 (Thornton Decl. at 1, ¶ 3.) Juror Bovee’s declaration recounts that “a fellow juror 24 who I believe was Mr. Thornton, entered the jury room and stated aloud to all the 25 jurors who were present that he had read a newspaper article that stated that 26 Francis Hernandez had been implicated in the murder of two other girls in 27 Northern California.” (Petition for Writ of Habeas Corpus (filed in the Supreme 28 Court of the State of California), Exh. E (“Bovee Decl. 1”) at 1, ¶ 3.) The

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1 declaration also stated that “the jury foreman, who I believe was Mr. Barber, told 2 Mr. Thornton to say no more.” (Id.) Two months later, Juror Bovee provided an 3 additional declaration. In the second declaration, Juror Bovee said that she wished 4 to clarify paragraph three of her original declaration, quoted above. (Reply Brief 5 in Support of Petition for Writ of Habeas Corpus (filed in the Supreme Court of 6 the State of California), Exh. F (“Bovee Decl. 2") at 1, ¶ 3.) The second 7 declaration stated, “A juror told the jury that he had read a newspaper article that 8 implicated Francis Hernandez in the murder of two other girls in Northern 9 California. I recall that there were several jurors present—more than six jurors 10 and possibly all.” (Id.) The substance of this second declaration is very similar to 11 the first one. 12 The parties deposed all of the surviving jurors as part of the evidentiary 13 hearing. Jurors Thornton and Huffman died before they could be deposed. Juror 14 Bovee testified in line with her declarations that a “good-sized,” “colored” man 15 named Fred, who she believed to be Juror Thornton, said that he saw an article in 16 the paper indicating that petitioner “was going to be charged in another case.” 17 (Bovee Depo at 10.) She testified that she believed the juror made the statement in 18 the jury room, that he directed his statement to Foreman Barber and that he did not 19 speak loudly when he talked to Foreman Barber. (Id. at 14, 52.) Juror Bovee 20 further testified that the juror’s statements specifically referred to petitioner being 21 implicated in two other murders. (Id. at 31, 32, 33.) 22 Juror Barber testified that “sometime in the morning—I don’t remember his 23 name. It’s a black man. I can’t remember his name. He came in and stated that he 24 read something in the newspaper about the case.” (Barber Depo. at 18.) He 25 continued, “And I tried to stop him right quick and say we’re not supposed to do 26 that. You know we’re not supposed to do that. And then I wrote a note to the 27 bailiff to tell the judge that there was a problem.” (Id.; see also id. at 43 (“I don’t 28 remember what the words were other than he read the newspaper, which we

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1 weren’t supposed to do, and I stopped him right away. We’re not supposed to do 2 that, and I sent him up to the judge. They were very clear that we weren’t 3 supposed to read newspapers or watch television.”).) Juror Barber testified that he 4 did not know what the content of the article was at that time and that he did not 5 learn about the content of the article until after the trial concluded. (Barber Depo. 6 at 18, 26.) Later, however, he offered the following testimony, which suggests 7 that Juror Thornton said more than just that he read an article about petitioner 8 without any mention of its content: 9 The thing I remember is the man was sitting down in the jury 10 room and started talking about it. He wasn’t even at the table. He was sitting against the wall and started talking about that, the 11 newspaper thing, and as soon as I heard what the conversation was 12 about or his talking or the conversation, I immediately said, hey, stop it, or wait. Tried to stop the words before they got any further. Whatever it was 13 that he had said, I tried to stop him immediately.” 14 (Id. at 51.) 15 Finally, the parties deposed Juror Rosemarie McClister Jasinksi. Juror 16 Jasinski became a penalty phase juror when the trial court dismissed Jurors Bovee, 17 Thornton and Huffman. The following exchange took place during her deposition: 18 Q: Do you recall a time in the jury room with some or all of 19 the other jurors when one of the jurors made reference to a newspaper article that said in substance that Francis 20 Hernandez was implicated in the murder of a couple other young women in Northern California? 21 A: I’m not sure how that was brought out, but I do 22 remember hearing it, and it was—it was kind of disturbing to 23 hear it, but there was a woman on the jury—and I’m sorry, I don’t remember her name. She was maybe in her fifties. I 24 think she worked with computers. But she was kind of one of the leaders, and she—I remember her saying, “He isn’t being 25 tried for that here. If they choose to try him, it will be a separate trial, so we need to get back on our focus to this trial,” 26 and I think everybody—everybody did. 27 Q: So there was no real discussion about it other than the—one of the jurors bringing out that he had read the 28 article and the substance of the article?

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1 A: I don’t remember if they said they read it or how it was 2 brought up, but it was something about two young women that were murdered in Northern California and 3 someone—or it was thought that it was similar circumstances in the way that they were killed. 4 5 Q: And Francis Hernandez was the suspect? 6 A: Right. 7 (Jasinski Depo. at 12-13.) She also testified that she “couldn’t tell you the 8 number, but there were jurors present when it was discussed. I couldn’t say if it 9 was five or six or if it was all of us. I don’t remember.” (Id. at 17.) 10 The rest of the deposition is largely focused on attempting to pin down 11 exactly where and when Juror Jasinski remembers hearing about the newspaper 12 article. Respondent attempted to elicit testimony that she may have learned about 13 the contents of the article after her jury service ended, but Juror Jasinski repeatedly 14 testified that she learned about the petitioner’s purported connection to the double 15 murder in the deliberation room. (Id. at 39 (“[T]he comment was in the 16 deliberation room.”), 40 (“I feel like it was said in the deliberation room, but it 17 may have been said another time when we were together.”), 41 (“I just feel it was 18 in the deliberation room.”), 55 (“. . . but I believe it was in the jury room that it 19 was said that he was accused of this.”), 56 (“Because we didn’t have discussions 20 like that outside of the deliberation room . . . to my mind that would mean we were 21 in the deliberation room.”), 59 (“I’m remembering that it was in the jury 22 room . . . .”), 91 (“We were in the jury room when I first heard about it.”), 93 23 (“Beyond a reasonable doubt this happened in the penalty phase in the jury 24 room.”), 94 (“I’m—I’m fairly certain it happened in the jury room.”).) 25 Juror Jasinski is less certain about the timing of the statement, but the sum 26 total of her testimony suggests that she heard about the article during the penalty 27 phase, or some time after the guilt phase verdict but before the penalty phase 28 verdict. For example, the following exchange took place during her deposition:

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1 Q: Do you—can you specifically— remember when this incident occurred? 2 A: Seems to me it was in the penalty phase. 3 Q: And was it before your verdict? 4 A: I believe it was. 5 Q: Was it before the judge questioned all of the—was it 6 before you were placed on the jury as an alternate—I mean as a sitting juror as opposed to an alternate? 7 A: I couldn’t answer that because I was brought in just 8 to—right there between the two, and I don’t remember 9 the date of exactly when the newspaper article happened, so I—I can’t answer that. 10 11 (Jasinski Depo. at 45.) In the end, Juror Jasinski offered consistent testimony that 12 she heard about the contents of the newspaper article sometime after it was printed 13 but before the penalty phase verdict, but she could not remember if it came to her 14 attention before or after the trial court questioned the jurors about the article. Her 15 best testimony on this point is that “[b]eyond a reasonable doubt this happened in 16 the penalty phase in the jury room.” (Id. at 93.) 17 Juror Jasinski’s testimony suggests that she heard about petitioner’s 18 purported involvement with the double murder in San Miguel before the 19 conclusion of the penalty phase, which supports petitioner’s theory that the jury 20 was exposed to the newspaper article when Juror Thornton talked about it in the 21 jury room. Juror Jasinski’s version of the facts is consistent with Juror Bovee’s 22 account that she heard Juror Thornton announce to Juror Barber that he read the 23 article and that other jurors were in the vicinity at the time. It is also corroborates 24 Juror Barber’s deposition testimony that Juror Barber overheard Juror Thornton 25 having a conversation about the newspaper article, and he stopped that 26 conversation as soon as he heard what it was about. 27 In summary, the evidence shows the following: Jurors Bovee and Barber 28 offered testimony that Juror Thornton entered the jury room on April 28th and

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1 announced that he read a newspaper article about petitioner. Both Jurors Bovee 2 and Jaskinski testified that they heard discussion about the contents of the 3 newspaper article in the deliberation room after the guilt phase verdict but before 4 the penalty phase verdict. Juror Thornton’s declaration states that Juror Thornton 5 heard jurors discussing the contents of the newspaper article when he entered the 6 jury room on April 28th. While Juror Barber testified that he did not learn about 7 the contents of the newspaper article, he also testified that he overheard Juror 8 Thornton having a conversation about the newspaper article and that he intervened 9 as “soon as [he] heard what the conversation was about.” (Barber Depo. at 51.) 10 This testimony suggests that even though Juror Barber may not have internalized 11 the contents of the article, it is more likely than not that Juror Thornton discussed 12 the contents of the article when he announced that he read it. 13 b. Analysis of Claim 4(A)(2) 14 Petitioner has demonstrated that the jury was exposed to the contents of the 15 newspaper article that implicated him in the strangulation of two girls in an 16 unrelated case. The jurors learned this information after the guilt phase, but before 17 returning a penalty phase verdict. The Court must consider whether this 18 extraneous information had a substantial and injurious effect on the verdict. 19 First, petitioner has shown that the jury actually received the information. 20 Juror Thornton announced that he read the article implicating petitioner in the San 21 Miguel murders, and Jurors Bovee and Jasinski remember hearing about the 22 allegations made against petitioner in the jury deliberation room before they 23 reached a penalty phase verdict. 24 Second, the evidence strongly suggests that the jury learned about the 25 contents of the incriminating newspaper article on August 28th, or several days 26 before the penalty phase began. Accordingly, the jury knew about the information 27 for the entire penalty phase. 28 Third, the evidence does not demonstrate that the jurors discussed or

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1 considered the allegations that petitioner committed similar murders during 2 deliberation. The only evidence that the jury could have considered or discussed 3 the evidence during deliberation is that of Juror Jasinski, who testified that one of 4 the women on the jury refocused the jury’s attention on the case at hand when the 5 allegations came up. (Jasinski Depo at 12-13.) As discussed, however, the most 6 likely scenario based on the collective testimony of the jurors is that the jury 7 learned about the newspaper article and its contents on the day it appeared in the 8 paper and that this comment about focusing on the case at hand happened at that 9 time, which was not during deliberations. The extent to which the jury discussed 10 the article at all, even outside deliberations, seems minimal. (See, e.g., Jasinski 11 Depo. at 75 (describing the commentary about the newspaper article as a “fleeting 12 comment.”)) Fourth, as mentioned, the article came to the jury’s attention before it 13 reached the penalty phase verdict. 14 In addition, the prejudicial statements about petitioner being a suspect in the 15 strangulation of two additional women did not appear ambiguously phrased. The 16 jurors who testified about the contents of the incriminating article seemed to have 17 the same understanding about the allegations against petitioner. Moreover, the 18 information in the article was not otherwise admissible or cumulative of other 19 evidence adduced at trial. While the trial court did attempt to ameliorate the 20 prejudicial effect of the article by questioning all the jurors about whether they 21 read the article or heard petitioner discussed, the trial court conducted an 22 inadequate examination. The trial court did not seem to know that any of the 23 jurors had mentioned or discussed the newspaper article in the jury room. The trial 24 court failed to ask Jurors Thornton and Bovee if they heard anything about the 25 article, and the questioning seemed to ask the jurors only if they heard petitioner 26 discussed, not if they heard mention of a newspaper article about him. In addition, 27 the parties have stipulated that petitioner is not a suspect in the strangulation 28 murder of the two girls in San Miguel, making the prejudicial impact of the

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1 newspaper article quite marked. 2 As the Court stated in its order granting an evidentiary hearing on this claim, 3 the information contained in the incriminating newspaper article “was prejudicial 4 because Petitioner had just been convicted of strangling his victims in the instant 5 case.” (Evidentiary Hearing Order at 15.) Also, as stated in that order, “the jury 6 had this information throughout the pendency of the penalty phase, during which it 7 was instructed to consider whether aggravating circumstances, such as prior acts of 8 violence committed by petitioner, outweighed any mitigating evidence.” (Id.) For 9 that reason, the “extrinsic evidence that Petitioner was being charged with other 10 strangulation murders . . . was directly related to a material aspect of the case.” 11 (Id. (citing See Rodriguez, 125 F.3d at 744). 12 In evaluating prejudice, the Court does not consider whether the State 13 presented enough aggravating evidence to support the death verdict. See Olivarez, 14 292 F.3d at 950. Instead, the Court must ponder whether the jury’s exposure to the 15 Independent Press Telegram article, published in the interim between the guilt and 16 penalty phases, and which erroneously implicated petitioner in the strangulation of 17 two girls in an unrelated case, had a substantial and injurious effect on the verdict. 18 It did. Because of (1) the highly prejudicial nature of the newspaper article 19 implicating petitioner in two unrelated murders, similar to the ones for which the 20 jury had just found him guilty; (2) evidence showing that two jurors remember 21 learning about this article in the deliberation room after the guilt verdict, but 22 before the penalty verdict; and (3) the fact that petitioner did not commit the 23 murders linked to him in the April 28th article, this error likely had a substantial 24 and injurious effect on the penalty phase verdict. See Rodriguez, 125 F.3d at 745 25 (“Reversible error commonly occurs where there is a direct and rational 26 connection between the extrinsic material and a prejudicial jury conclusion, and 27 where the misconduct relates directly to a material aspect of the case.” (internal 28 quotation marks and citations omitted).

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1 Accordingly, the Court GRANTS Claim 4(A)(2). 2 c. Analysis of Claims 5(D)(18), 5(D)(24) & 5(D)(25) 3 Relatedly, petitioner claims that trial counsel failed to locate the source of 4 the Independent Press Telegram article that falsely accused petitioner of unrelated 5 crimes in northern California. Petitioner also claims that trial counsel “failed to 6 take adequate steps to minimize the impact these fake reports had on the exposed 7 jurors who were unaware of the falsity of the reports.” (Pet. at 48.) In addition, 8 petitioner claims that at the end of the guilt phase, trial counsel failed to renew his 9 request to sequester the jury during the penalty phase. Petitioner also contends 10 that trial counsel failed to challenge several unnamed jurors, even though he knew 11 or should have known that they had been exposed to a prejudicial newspaper 12 article. 13 To obtain relief on these IAC claims, petitioner must show that counsel 14 performed deficiently and that this deficient performance prejudiced petitioner. 15 Wiggins, 539 U.S. at 521. 16 Petitioner cannot prevail on these claims. As discussed regarding Claim 17 4(A)(2), trial counsel moved for selection of a new penalty phase jury based on the 18 newspaper article. Trial counsel also successfully convinced the trial court to 19 question the jurors individually about the article. Based on that inquiry, the trial 20 court excused three jurors from service. Trial counsel, still concerned that Juror 21 Barber was exposed to the article, asked the trial court to question him yet again. 22 The trial court did so. While the trial court ultimately kept Juror Barber on the 23 jury, it was over the objection of trial counsel. Petitioner contends in Claim 24 5(D)(25) that trial counsel failed to challenge “several jurors even though he knew 25 or should have known that they had been exposed to th[e] prejudicial newspaper 26 article.” Petitioner does not name these jurors, and the record reflects that trial 27 counsel repeatedly, persistently and successfully sought to investigate and remedy 28 the jury’s exposure to the damaging article. Moreover, in Claim 5(D)(18),

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1 petitioner points to counsel’s alleged failure to look for the source of the article as 2 deficient. Reasonable trial counsel could have concluded that adequate 3 representation necessitated an attempt to look into and remedy the jurors’ exposure 4 to the article, but not an effort to locate the source of the article. Counsel’s 5 performance is not deficient because the trial court conducted an inadequate 6 inquiry into the jurors’ exposure to the newspaper article, or because some of the 7 jurors may have been less than honest about their exposure to the article. Counsel 8 performed adequately, given the circumstances and the information available to 9 him. Claims 5(D)(18) and 5(D)(25) fail. 10 Finally, in Claim 5(D)(24), petitioner criticizes as deficient counsel’s failure 11 to renew his motion to sequester the jury at the end of the guilt phase. Reasonable 12 counsel could have concluded that the trial court’s earlier denial of a motion to 13 sequester the jury made a renewed motion futile. Rupe, 93 F.3d at 1440 (holding 14 that failure to take futile action is not ineffective). While sequestering the jury 15 would have prevented the jury’s exposure to the prejudicial newspaper article, 16 petitioner cannot show a likelihood that the trial court would have granted a 17 motion to sequester the jury. Petitioner’s claim of deficiency is too speculative to 18 support relief. Cf. Cooks, 660 F.2d at 740 (holding that petitioner’s claim of 19 prejudice amounted to “mere speculation”). 20 Accordingly, the Court DENIES Claims 5(D)(18), 5(D)(24) and 5(D)(25). 21 3. Foreman’s exposure to an allegation that petitioner 22 committed an uncharged rape (Claim 4(A)(3)) 23 In Claim 4(A)(3), petitioner contends that an alternate juror was approached 24 by one of his tenants, and that tenant informed the alternate that petitioner had 25 raped the tenant’s mother. The tenant’s mother identified petitioner when she saw 26 his picture in the newspaper. Petitioner further contends that the alternate 27 approached the foreman and relayed this conversation to him before the penalty 28 phase concluded. Petitioner contends that this error prejudiced him at the penalty

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1 phase. 2 The Court held an evidentiary hearing on this claim. The order granting an 3 evidentiary hearing stated the following: 4 5 In this case, Petitioner has alleged facts which, if proved, show that he is entitled to relief. Petitioner was charged with raping and 6 murdering both of his victims. Petitioner claims that Juror Barber 7 was exposed to uncontroverted extrinsic evidence that Petitioner had committed a previous rape. Evidence that a criminal defendant has 8 committed a prior similar offense is, by its nature, intrinsically prejudicial and necessarily has a substantial and injurious effect on 9 the verdict. Jeffries v. Wood, 114 F.3d at 1491. 10 11 Moreover, evidence that Petitioner had committed a prior rape was directly related to a material aspect of the case. See Rodriguez v. 12 Marshall, 125 F.3d at 744 (“Juror misconduct which warrants relief generally relates ‘directly to a material aspect of the case’”) (citations 13 omitted). Prior to deliberations, the trial court instructed the jurors to 14 consider “the presence or absence of criminal activity by the defendant which involved the use . . . of force or violence” in 15 deciding whether to sentence Petitioner to death. (RT 3682-84). Whether Petitioner had committed a prior rape was evidence of 16 criminal activity involving the use of force or violence. Petitioner 17 also did not receive a hearing regarding this issue in state court. Because Petitioner has alleged facts which, if true, would entitle him 18 to relief, and he was not afforded a full and fair hearing on this issue in state court, this court grants Petitioner’s motion for an evidentiary 19 hearing regarding this claim. 20 21 (Evidentiary Hearing Order at 12-13.) 22 a. Relevant Facts 23 On January 3, 1990, alternate juror Edward Howard provided a declaration. 24 It stated, in part: 25 After the verdict of guilt had been entered, but prior to the 26 penalty phase, we, the jurors, met in the quad area near the courthouse 27 to celebrate that we were done with that part of the trial. It was a 28

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1 major relief for everyone.9 2 It was at about this same time that one of my tenants approached me and said that she had read the newspaper article. She 3 stated that her mother had seen the photograph of Mr. Hernandez in the newspaper and knew that it was the man who had raped her at one 4 time. Shortly after this incident I mentioned the forgoing to the jury foreman. At the get together in the quad area is when I made mention 5 of [it].10 6 (Reply Brief in Support of Petition for Writ of Habeas Corpus (filed in the 7 Supreme Court of the State of California), Exh. B (“Howard Decl.”) at 1-2, ¶¶ 3- 8 5.) 9 In addition, Juror Howard added the following hand-written paragraph to 10 the end of his declaration: 11 I remember that when I told the foreman what my tenant had 12 told me, I made sure to let him know that he was the only person other than my wife whom I told about this and I also tried to explain 13 that I didn’t (did not) want to influence him and he assured me that by the evidence the jury had been presented that something like this 14 would have no influence on his decision. 15 16 (Howard Decl. at 2.) 17 The parties deposed Juror Howard ten years after he provided his initial 18 declaration. The main issue at his deposition concerned when Juror Howard told 19 Juror Barber about the conversation with his tenant. Juror Howard repeatedly 20 testified that he told Juror Barber about the conversation with his tenant after the 21 guilt phase concluded—specifically, after the article appeared in the paper—but 22

23 9 Juror Howard crossed out the next typed sentence, which read, “It was at that time that we discussed a newspaper article implicating Mr. Hernandez in other murders.” (Reply Brief in 24 Support of Petition for Writ of Habeas Corpus (filed in the Supreme Court of the State of 25 California), Exh. B (“Howard Decl.”) at 1, ¶ 4.) 26 10 The last quoted sentence (“At the get together in the quad area is when I made mention of 27 [it]”) was hand-written by Juror Howard. He also crossed out a typed sentence that read, “Though I do not believe that this incident influenced the jury’s decision, I cannot help but 28 wonder whether the penalty phase verdict would have been different had I not mentioned it.” (Howard Decl. at 2, ¶ 5.)

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1 before the jury reached a penalty verdict. (See, e.g., Howard Depo. at 25 (“Q: So it 2 was—it was—the conversation you’ve told us about with Mr. Barber telling him 3 about the tenant and the tenant’s mother was, as I understand it, prior to the time 4 the jury went into deliberations to determine what penalty he receives? 5 A: Correct.”), 26 (“From my recollection, it occurred after he had been found 6 guilty, but prior to being sentenced—”), 26 (testifying that the conversation could 7 have happened on any of the days the jury heard penalty phase testimony), 40 8 (“The conversation between me and Mr. Barber took place after the article in The 9 Press Telegram and before the death penalty was returned.”), 41 (“I—I know that 10 a conversation took place between me and Mr. Barber. I know it was after the 11 article in The Press Telegram. As to what specific day or—that, I can’t say. I 12 know it was before he was sentenced—before the jury came back with the 13 sentence.”), 43 (“The conversation between me and Mr. Barber, I know it occurred 14 after Mr. Hernandez was found guilty and prior to his being found—or prior to his 15 being sentenced to death. ¶ Now, as far as which particular day, that, I’m sorry, I 16 can’t recall. But I know it was after he had been found guilty and prior to when he 17 was sentenced to death.”), 60 (“I believe that what took place was after the guilty 18 verdict had been rendered, we all met—we, the jury, got together in the—in a quad 19 area near the courthouse. We were relieved because we were done with a lot of 20 the trial. But this was prior to his being sentenced. Now, as of today, my exact 21 recollection as to when—whether this took place before any testimony was given 22 in the penalty phase or not, I’m not sure.”), 67 (“Well, I know I told him—I told 23 him during the trial about what one of my tenants had told me . . . . Well, I know I 24 told him during the trial near the courthouse about what the tenant had told me 25 about her mother being raped, and she was pretty sure that it was Hernandez that 26 had done it. I know that took place during the trial.”). 27 Juror Howard also testified that he was not sure when he told Juror Barber 28 that he (Juror Howard) was concerned that the conversation would influence Juror

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1 Barber’s decision about whether to vote for the death penalty. That portion of the 2 conversation could have happened before or after the penalty verdict. (Howard 3 Depo. at 21, 22-25, 44 (“The only part of the conversation with Mr. Barber that I 4 have a question [about] is whether it took place at that time or after the trial 5 was—whether I asked him whether that had influenced his decision or not.”), 63 6 (“[W]hether I told him . . . that I did not want to influence him—I’m not sure 7 whether that took place when we were at the quad or whether that took place after 8 the trial was completely over with.”)) 9 In addition, the parties deposed Juror Barber. Juror Barber could not 10 remember the conversation with Juror Howard. (See, e.g., Barber Depo. at 21 (“Q: 11 Do you remember that at one of these get-togethers there was an alternate juror 12 who told you that he was a landlord, and he had been confronted by a tenant who 13 had told him that her mother had seen a picture of Hernandez in the newspaper and 14 was convinced that Hernandez had raped her mother? A: I don’t remember that at 15 all.”)). On further examination, Juror Barber offered testimony that while he could 16 not remember the conversation, that did mean that it did not happen. (Id. at 40-41 17 (“Q: Is it accurate that you told [petitioner’s counsel] earlier this year that you 18 could not say the conversation did not occur? A: Yes, that’s right. Q: You just 19 weren’t sure one way or the other? A: That’s an accurate statement. Q: And that’s 20 an accurate statement today? A: Yes.”).) In addition, however, Juror Barber 21 testified that if Juror Howard had talked to him about the tenant’s allegation, he 22 probably would have remembered it: 23 Q: Now going back to this statement about the tenant, and 24 you indicated that in a conversation with [petitioner’s 25 counsel] you had stated that you couldn’t foreclose the possibility that that could have happened. Do you have 26 any actual memory of that conversation? 27 A: Not at all. 28 Q: And do you have any actual memory of him later coming to you and saying, geez, I hope I didn’t influence your

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1 vote? 2 A: Not at all. 3 Q: And would that have been the type of conversation that you think—in your present state of mind, do you think 4 that that would have been the type of conversation that would have stood out? 5 A: Yes, it would. That was one of the things like the 6 newspaper, that if someone had said that to me that was significant enough that I would have remembered it and 7 probably told the judge. 8 (Barber Depo. at 49-50.) Although Juror Barber testified that this conversation is 9 the kind that he would have remembered, he also admitted that while he knew that 10 Juror Wagner consulted her minister about how to vote in the penalty phase, he did 11 not think it was necessary to report that communication to the trial judge. (Id. at 12 15.) Additionally, Juror Barber testified that he reported to the trial court that 13 Juror Thornton read the newspaper article implicating petitioner in the double 14 strangulation of two girls in Northern California, but nothing in the record 15 indicates that he actually reported this incident. (Id. at 18 (“And then I wrote a 16 note to the bailiff to tell the judge that there was a problem.”).) The record does 17 not contain a note from Juror Barber to the trial court, nor does the transcript 18 suggest that he gave a note to the judge. Neither the trial judge nor the attorneys 19 mention such a note, and the voir dire conducted regarding the newspaper article 20 does not refer to a note from Juror Barber or to the incident in which Juror 21 Thornton announced that he read about petitioner in the paper. As discussed, the 22 questions on voir dire were directed more toward whether the jurors saw the 23 newspaper article rather than whether they heard a juror announce in the jury room 24 that he read such an article. These discrepancies raise questions about the 25 credibility of Juror Barber’s testimony. The Court need not determine Juror 26 Barber’s credibility, however, because the analysis of each of the juror misconduct 27 28

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1 claims is essentially the same, regardless of the credibility determination.11 2 The Court must reconcile the following evidence: (1) Juror Howard’s 3 unyielding contention that he informed Juror Barber about the conversation Juror 4 Howard had with his tenant, in which the tenant accused petitioner of having raped 5 her mother and (2) Juror Barber’s testimony (a) that he does not recall the 6 conversation with Juror Howard, (b) that even though he does not recall the 7 conversation, it still could have happened and (c) that if the conversation did 8 happen, it was “significant enough that [he] would have remembered it and 9 probably told the judge.” (Barber Depo. at 50.) Respondent argues that petitioner 10 has failed to meet his burden of proof. He contends that Juror Barber’s testimony 11 that he cannot remember the conversation with Juror Howard effectively cancels 12 out Juror Howard’s recollection that the conversation occurred. He also points out 13 that Juror Howard’s certainty in his memory that the conversation with Juror 14 Barber took place is of little consequence. Respondent’s position is unavailing. 15 Juror Howard firmly remembers that he informed Juror Barber about the tenant’s 16 allegation before the jury returned a penalty phase verdict. (See, e.g., Howard 17 Depo. at 40, 41, 43. 18 Moreover, Juror Howard repeatedly testified that he has harbored guilt for 19 many years because he knew that his initial interaction with his tenant and his 20 subsequent conversation with Juror Barber violated the judge’s admonition not to 21 22 11 The evidence concerning Claim 4(A)(1) that is attributable only to Juror Barber concerns the exact timing of Juror Wagner’s telling the jury that she consulted her minister over the 23 weekend. This evidence is not in dispute. The record makes plain that Juror Wagner consulted her minister on Sunday after mass. The jury reconvened to deliberate the next day and returned 24 a verdict around lunchtime. Juror Wagner told her fellow jurors that she consulted her minister sometime Monday morning. Depending on whether she shared this information at the start of 25 deliberations or toward the end, the jury had this information for a range of several minutes to 26 several hours. This timeframe makes little, if any, appreciable difference to the analysis. Similarly, a negative credibility determination would not affect Claim 4(A)(2). Even without 27 deducing from Juror Barber’s testimony that Juror Thornton probably discussed the contents of the newspaper article, both Jurors Bovee and Thornton testified that they heard the contents of 28 the newspaper article discussed in the deliberation room after the guilt phase verdict but before the penalty phase verdict. Juror Barber’s testimony on that point is not required.

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1 discuss the case outside deliberations and that these events were potentially 2 harmful to petitioner. (See, e.g., Howard Depo. at 44 (“But the judge was very, 3 very specific about what we were supposed to do and not supposed to do, and he 4 was very, very firm. And I tried within—I tried as much as possible to abide by 5 the judge. I know I—this conversation has sat on my mind for a long time because 6 I know it was probably improper for me to do. But it did occur.”), 74 (“The fact 7 that I shared the information with the juror is what weighed on me. Because I felt 8 it was improper for me to do that, but it was done. There was nothing I could do 9 that’s going to retract it, but it was done. But I felt uncomfortable with that.”). 10 Petitioner has demonstrated by a preponderance of the evidence that Juror Howard 11 did in fact inform Juror Barber about the conversation with the tenant before the 12 jury returned its penalty phase verdict, given (1) the force of Juror Howard’s 13 unwavering testimony, (2) the strong feelings of guilt Juror Howard has harbored 14 since the trial because he knew that his conversations with both his tenant and 15 Juror Barber were improper and potentially prejudicial because they occurred 16 before the jury returned a penalty phase verdict and (3) the questions surrounding 17 Juror Barber’s memory of the events. 18 b. Analysis 19 The evidence shows that Juror Howard’s tenant told Juror Howard that 20 petitioner raped the tenant’s mother. The alleged victim recognized petitioner 21 when she saw his photo in the paper. Juror Howard adamantly remembers 22 recounting this conversation to Juror Barber after it occurred but before the penalty 23 phase concluded. Juror Barber does not remember the conversation. 24 Again, the Court must look to a constellation of factors to determine 25 whether Juror Barber’s exposure to an accusation that petitioner raped the mother 26 of one of Juror Howard’s tenants had a substantial and injurious effect on the 27 verdict. 28 As discussed, there is some dispute about whether Juror Barber actually

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1 received the information that one of Juror Howard’s tenants accused petitioner of 2 raping her mother. The sum total of the evidence shows, however, that it is more 3 likely than not that Juror Barber learned about Juror Howard’s conversation with 4 his tenant, although Juror Barber did not remember it at his deposition in 2000. 5 Second, Juror Barber probably knew about the rape allegation for most or all of the 6 penalty phase. Third, the parties have not put forth any evidence that the jury 7 discussed or considered this rape allegation, and none of the jurors deposed in 8 2000 recalls discussing this issue in deliberations. Fourth, Juror Howard testified 9 repeatedly that he informed Juror Barber about the conversation with his tenant 10 before the jury reached a penalty phase verdict. The timing of his tenant’s 11 confrontation with him, and his subsequent conversation with Juror Barber, 12 weighed on him for many years because he knew the conversations were 13 unauthorized communications that took place during trial and that could influence 14 the penalty phase verdict. 15 In addition, the accusation that petitioner raped the mother of one of Juror 16 Howard’s tenants was not ambiguously phrased. The tenant seemed sure that 17 petitioner was the same man who raped her mother. The tenant’s mother identified 18 petitioner based on a photo in the newspaper, close in time to the publication of the 19 article linking petitioner to two other murders. The accusation was not ambiguous. 20 Moreover, an unproven, unsubstantiated rape allegation with which petitioner was 21 never charged was not otherwise admissible or merely cumulative of other 22 evidence introduced at trial. Because neither the trial court nor the parties were 23 aware that Juror Howard had this communication with his tenant or that he shared 24 what he heard about petitioner with Juror Barber, the court did not give a curative 25 instruction or take any other step to ameliorate the prejudice to petitioner. 26 Finally, and most importantly, the rape allegation had the potential for great 27 prejudice, given the issues and evidence in the case. As stated in the Court’s order 28 granting an evidentiary hearing, “[e]vidence that [petitioner] has committed a prior

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1 similar offense is, by its nature, intrinsically prejudicial and necessarily has a 2 substantial and injurious effect on the verdict.” (Evidentiary Hearing Order at 12 3 (citing Jeffries v. Wood, 114 F.3d at 1491.)) Furthermore, and also as stated in the 4 Court’s order granting an evidentiary hearing, “evidence that [p]etitioner had 5 committed a prior rape was directly related to a material aspect of the case.” 6 (Evidentiary Hearing Order at 12 (citing Rodriguez v. Marshall, 125 F.3d at 744 7 (“Juror misconduct which warrants relief generally relates directly to a material 8 aspect of the case.”) (internal quotation marks and citations omitted)). As the 9 order granting the evidentiary hearing additionally stated, “Prior to deliberations, 10 the trial court instructed the jurors to consider ‘the presence or absence of criminal 11 activity by the defendant which involved the use . . . of force or violence’ in 12 deciding whether to sentence [p]etitioner to death.” (Evidentiary Hearing Order at 13 12 (citing RT 3682-84).) If petitioner had committed a prior rape, that certainly 14 would have been evidence of criminal activity involving the use of force or 15 violence. 16 Juror Barber received extraneous, prejudicial information that another 17 woman accused petitioner of raping her after seeing petitioner’s picture in the 18 paper. Petitioner stood trial for raping, sodomizing and murdering two women. 19 The jury heard extensive evidence about the rape allegations. Juror Barber voted 20 with the other jurors at the guilt phase to convict petitioner of rape, and the 21 circumstances of the crime, including the rapes, were an aggravating factor at the 22 penalty phase. During the penalty phase, the jurors were instructed to consider the 23 presence or absence of prior criminal acts involving force or violence. 24 Juror Barber’s exposure to this additional rape allegation had a substantial and 25 injurious effect on the verdict. The Constitution protects petitioner’s right to be 26 tried by twelve impartial jurors. While only Juror Barber was exposed to the rape 27 allegation, the Constitution guarantees petitioner’s right “to be tried by 12, not 9 or 28 even 10, impartial and unprejudiced jurors.” Parker, 385 U.S. at 366; see also

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1 Dyer, 151 F.3d at 973; Dickson, 849 F.3d at 408. 2 Accordingly, the Court GRANTS Claim 4(A)(3). 3 4. Jury’s understanding of LWOP (Claim 4(A)(4)) 4 In Claim 4(A)(4), petitioner contends that the jury was informed and 5 believed that life without the possibility of parole (“LWOP”) did not exclude the 6 possibility of parole, and, accordingly, several jurors voted for the death penalty in 7 order to foreclose the possibility of petitioner’s release. 8 Petitioner cites to the declarations of two jurors and the deposition of a third 9 juror in support of this claim. As discussed, however, juror testimony impeaching 10 a verdict is inadmissible. Tanner v. United States, 483 U.S. 107, 116–27 (1987) 11 (discussing the prohibition on jury testimony to impeach a verdict); Fed. R. Evid. § 12 606(b). In fact, the Ninth Circuit has excluded juror testimony in a very similar set 13 of circumstances. Belmontes v. Brown, 414 F.3d 1094, 1124 (9th Cir. 2005), rev’d 14 on other grounds by Ayres v. Belmontes, 549 U.S. 7 (2006)); McDowell v. 15 Calderon, 107 F.3d 1351, 1365–68 (9th Cir.), rev’d on other grounds by 16 McDowell v. Calderon, 130 F.3d 833 (9th Cir. 1997) (en banc). The only possibly 17 applicable exception to the prohibition on juror testimony to impeach a verdict, 18 which allows for evidence of “whether extraneous prejudicial information was 19 improperly brought to the jury’s attention,” does not apply. Fed. R. Evid. § 20 606(b)(1); see also McDowell, 107 F.3d at 1367 (“The type of after-acquired 21 information that potentially taints a jury verdict should be carefully distinguished 22 from the general knowledge, opinions, feelings and bias that every juror carries 23 into the jury room.”) (emphasis added) (internal quotation marks and citation 24 omitted). The declarations appear to “reflect[] [the jurors’] belief[s] about the 25 consequences of the sentence of death and [their] motive in voting for it.” 26 McDowell, 107 F.3d at 1368. Again, testimony “regarding the deliberative 27 process, the motives of individual jurors and conduct during deliberations is 28 inadmissible.” Id. at 1367 (internal quotation marks and citations omitted).

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1 Moreover, the trial court instructed the jury, among other things, that “[i]t is 2 the law of [California] that the penalty for a defendant found guilty of murder of 3 the first degree shall be death or confinement in the state prison for life without 4 possibility of parole in any case in which the special circumstances charged in this 5 case have been specially found to be true.” (14 RT 3681 (emphasis added).) The 6 trial court also stated, “It is now your duty to determine which of the two penalties, 7 death or confinement in the state prison for life without possibility of parole, shall 8 be imposed on the defendant.” (14 RT 3684 (emphasis added).) The Court must 9 presume that the jurors followed the instructions as given. Francis v. Franklin, 10 471 U.S. 307, 324 n.9 (1985) (“[W]e adhere to the crucial assumption underlying 11 our constitutional system of trial by jury that jurors carefully follow 12 instructions.”). Petitioner has failed to demonstrate his entitlement to relief. 13 Accordingly, the Court DENIES Claim 4(A)(4). 14 5. Jurors’ consideration of mitigating evidence (Claim 15 4(A)(5)) 16 In Claim 4(A)(5), petitioner contends that several jurors believed they were 17 required to impose the death penalty if they found petitioner guilty of two murders 18 and, accordingly, those jurors did not consider any mitigating evidence. 19 In support of this claim, petitioner points to a juror declaration. As stated, 20 the Court cannot consider juror testimony impeaching a verdict. Tanner, 483 U.S. 21 at 116–27; Fed. R. Evid. § 606(b). Petitioner does not contend that the jury’s 22 alleged misunderstanding of the law resulted from the jury’s exposure to 23 extraneous prejudicial information improperly brought to its attention. 24 Accordingly, no exception to Federal Rule of Evidence 606(b) applies. 25 Petitioner has failed to demonstrate his entitlement to relief. Accordingly, 26 the Court DENIES Claim 4(A)(5). 27 28

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1 6. Juror Howes’ consideration of mitigating evidence (Claim 2 4(A)(6) & 4(B)(1)) 3 In Claim 4(A)(6), petitioner contends that Juror Viola Howes decided to 4 vote for the death penalty at the end of the guilt phase and, therefore, did not 5 consider any of the mitigating evidence presented at the penalty phase. Relatedly, 6 in Claim 4(B)(1), petitioner contends that Juror Howes concealed material 7 information at voir dire when she said that she would give both sides a fair and 8 impartial trial based on the evidence presented, that she would keep an open mind 9 and that she would follow the law as provided by the trial court because she later 10 gave no consideration to the mitigating evidence presented at the penalty phase. 11 Again, petitioner attempts to rely on a juror declaration in support of this 12 claim, and, again, juror testimony impeaching a verdict is inadmissible. Tanner, 13 483 U.S. at 116–27; Fed. R. Evid. § 606(b). As with Claim 4(A)(5), petitioner 14 does not allege that Juror Howe’s failure to follow the instructions as given or to 15 adhere to her oath as a juror had anything to do with her exposure to extraneous 16 prejudicial information improperly brought to her attention. Thus, no exception to 17 Federal Rule of Evidence 606(b) applies, and petitioner has again failed to 18 demonstrate his entitlement to relief. 19 Accordingly, the Court DENIES Claims 4(A)(6) and 4(B)(1). 20 7. Jury’s consideration of the Bible (Claim 4(A)(7)(c)) 21 In Claim 4(A)(7)(c), petitioner contends that one or two Bibles were present 22 in the jury room throughout deliberations and that the jurors discussed and 23 considered the Bible in their deliberations. He argues that this consultation of the 24 Bible during penalty phase deliberations prejudiced him. 25 Petitioner puts forth weak and inadmissible evidence that the jurors had a 26 Bible in the deliberation room and that they actually consulted it. First, petitioner 27 points to the declaration of Juror Viola B. Howes. Juror Howes’ declaration states 28 in relevant part:

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1 I recall that Louise Wagner had considerable difficulty in 2 imposing the death penalty. During the deliberations, there was a Bible present which I believe was brought into the jury room by 3 Mrs. Wagner. I recall statements having been made by Mrs. Wagner 4 regarding her plans to attempt to “save” Mr. Hernandez’[s] soul. 5 (Howes Decl. p. 2, ¶ 4.) Read most generously to petitioner, this declaration 6 states only that a Bible was in the deliberation room, but not that the jury looked at 7 or considered it. 8 Petitioner also alleges that religion played a large role in the trial, 9 compounding whatever error took place with respect to the Bible. One juror gave 10 defense counsel a Bible at the conclusion of the trial so that he could give it to 11 petitioner. (Wagner Decl. 1 at ¶ 5.) Another juror recalled that both Jurors 12 Wagner and Glenn held strong religious views. Specifically, Juror Wagner talked 13 of visiting petitioner to save him. Juror Glenn sent a short, written prayer into the 14 deliberation room to be read at the beginning of guilt phase deliberations each day 15 when she was an alternate, and she said a short prayer herself at the start of penalty 16 phase deliberations when she was a juror. (Lamont-Soliman Decl. at ¶¶ 5, 6.) 17 Petitioner argues, “Juror Glenn based her beliefs upon the teachings of the Bible, 18 and shared those beliefs during deliberations. Glenn believed in the Old 19 Testament teaching of ‘an eye for an eye and a tooth for a tooth.’” (Petr’s 8/23/07 20 Brief at 11.) As support for his characterization of Juror Glenn, petitioner cites to 21 the declaration of J. Bruce Robertson, one of his attorneys on federal habeas. 22 (Petition for Writ of Habeas Corpus (filed in California Supreme Court), Exh. J, at 23 8.) That declaration describes a conversation that an investigator had with Juror 24 Glenn, as relayed by the investigator to the attorney. (Id.) Petitioner relies on 25 quadruple hearsay, and no exception applies. Finally, petitioner points to the 26 record to show that the prosecutor referred to religion at least eight times in his 27 closing argument. (Petr’s 8/23/07 Brief at 11.) However, petitioner falls far short 28 of showing by a preponderance of the evidence that the jury considered the Bible

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1 in its deliberations. See Johnson v. Zerbst, 304 U.S. 458, 468 (1938) (applying the 2 “preponderance of the evidence” standard to an IAC claim on habeas), overruled 3 on other grounds by Edwards v. Arizona, 451 U.S. 477 (1981). 4 Even if the Court were to presume that a Bible was present in the jury 5 deliberation room at the penalty phase and that the jurors consulted the Bible, 6 petitioner likely cannot make a showing of substantial and injurious influence on 7 the penalty phase verdict. Looking to the Jeffries factors, petitioner has not shown 8 that the jurors actually consulted the Bible, nor did he provide a time-frame for 9 how long the jury would have reviewed the Bible or the extent to which the jurors 10 discussed or considered it. See Jeffries 114 F.3d at 1492. Moreover, petitioner has 11 not shown what Biblical text the jury consulted, let alone whether it was 12 ambiguously phrased. The passages from the Bible, if the jury actually consulted 13 any, certainly were not otherwise admissible, nor cumulative of other evidence 14 introduced at trial. The trial court obviously did not issue a curative instruction or 15 take an alternate step to ameliorate the prejudice because it was not aware of the 16 jury’s alleged consultation of the Bible. See id. at 1491-92. While some of the 17 factors suggest that consultation of the Bible may have caused some prejudice to 18 petitioner, he has failed to show that the effect would have been substantial or 19 injurious. See, e.g. Fields, 503 F.3d at 779-83 (holding that an individual’s 20 consultation of the Bible, which he used to create a list of reasons “for” and 21 “against” the death penalty that he shared with his fellow jurors during the penalty 22 phase deliberations, did not have a substantial and injurious influence in 23 determining the jury’s verdict). 24 Accordingly, the Court DENIES Claim 4(A)(7)(c). 25 8. Jurors’ confrontation by victims’ families outside 26 courtroom (Claim 4(A)(8)) 27 In Claim 4(A)(8), petitioner contends that members of the victims’ families 28 confronted jurors in the hallway, telling them to vote for the death penalty. He

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1 argues that this encounter caused him prejudice. 2 The trial court held a hearing on this incident. During the guilt phase, 3 Juror Thornton told the bailiff that a woman approached him and asked him which 4 side he was on. (11 RT 2760.) The trial court questioned Juror Thornton, who 5 stated: 6 Well, as I was standing outside waiting for the—the door was 7 closed here, so we was waiting for someone to open the door to the right, so the lady came up and she says—asked me which side I was 8 on, and I say, “I’m not supposed to say anything. You know, not supposed to talk.” ¶ So then [Juror Thornton] told her, says, “We 9 not supposed to say anything to anyone.” ¶ And then she said that, “I hope that—” let’s see. How did she say that?—I—maybe he can think of it, but 10 she said something that she hope he gets the maximum or something. I don’t know. 11 12 (11 RT 2798-99.) Juror Thornton testified that the woman’s statement did not 13 intimidate him. (11 RT 2799.) He also testified that the encounter would not 14 affect his decision and that he could disregard the woman’s comments. (11 RT 15 2800.) 16 The trial court also questioned Juror Howard, an alternate. He testified: 17 I was standing there and we were talking, and a lady 18 approached [Juror Thornton], and I didn’t really hear the discussion, but I heard her ask—I did hear her, and after a couple of minutes 19 there, I heard her ask him what his opinion was, how he felt about it, and I could tell he was trying to back off of it. ¶ He’s a quiet person, 20 anyhow, and he was trying to get away from it, and I just—I spoke up. I told her—I says, “We are not allowed to talk about it,” and she 21 backed off. ¶ Then somebody else said—another woman that was there said, “Yeah, they are jurors. They think they are better than 22 everybody,” and about that time, I knocked on the door so we could get into the jury room, because the courtroom was locked and that 23 door was locked. I knocked on the door, and the typists in there let us in, and I called everybody that was waiting over here at the doorway 24 over, and we all went in. 25 (11 RT 2802-03.) Juror Howard also testified that the exchange would not affect 26 his ability to be fair and impartial and that he had “no problem” with deciding the 27 case solely on the evidence produced at trial. (11 RT 2803.) When asked whether 28 he could “put [it] out of his mind,” he said, “I don’t know about putting it out of

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1 my mind, but as far as the case, I can decide the case on the evidence that’s here.” 2 (11 RT 2804.) 3 The trial court also inquired of Juror Bovee: 4 [T]his lady just came up—there was two ladies, and they just 5 came walking up, and she said to me, “Do you know where the Hernandez trial is?” and I just pointed to the door. ¶ So then she said 6 to me—she says, “I hope he gets the chair.” ¶ So with that, I turned my back to her and walked away, and then she came over and said she 7 was sorry, so I turned my back to her again, and then there was other members of the jury came up and I went on in with them. 8 9 (11 RT 2807.) She then testified that the woman’s statements did not intimidate 10 her and that she could give both sides a fair and impartial trial. (11 RT 2807-08.) 11 Finally, the trial court questioned the two women who made the statements 12 to the jurors. (11 RT 2809-17.) The trial court also informed them that if they 13 spoke to the jurors again, the trial court would fine or incarcerate them. (11 RT 14 2814, 2816-17.) 15 The Court must look to the many factors already discussed to evaluate the 16 potential prejudice from the women’s statements that they hoped petitioner would 17 receive the death penalty and that the jurors thought they were better than 18 everyone else. The jurors actually received the information, as demonstrated by 19 the trial court’s inquiry into the matter. The trial court excused Jurors Thornton 20 and Bovee before the penalty phase because they were exposed to the newspaper 21 article implicating petitioner in two unrelated murders. Juror Howard, an 22 alternate, never deliberated at either phase. Therefore, the jurors had the 23 information from the point the statements were made during the guilt phase 24 through the guilt phase deliberations. While the jurors received the information 25 before they reached a guilt phase verdict, petitioner has not produced evidence to 26 suggest that the jurors discussed or considered the statements made to Jurors 27 Thornton, Howard and Bovee. In addition, the statements were not ambiguously 28 phrased, nor did they comprise otherwise admissible or cumulative evidence.

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1 While the trial court did not give a curative instruction, it did question the jurors 2 exposed to the statements to determine what effect, if any, the encounter would 3 have on the jurors’ ability to decide the case fairly. The trial court also 4 admonished the two women who made the statements and threatened them with 5 either incarceration or fines if they talked to the jurors or if they discussed the case 6 in front of them. This admonishment did not serve to ameliorate the statements 7 already made, but would potentially guard against future statements made by the 8 same individuals. 9 The statement about the jurors thinking they were “better than everybody” 10 seems insufficiently prejudicial to have any effect on the outcome of the trial. The 11 statement that one of the women hoped petitioner “got the chair,” could have had a 12 prejudicially influenced the penalty phase verdict. However, the three jurors all 13 testified—and the trial court implicitly found that testimony credible—that the 14 statement did not intimidate them, that it would not influence the proceedings and 15 that it would not cause them to act unfairly or partially. In addition, the statement 16 about the electric chair most likely would have influenced the penalty phase, but 17 none of the jurors who heard the statement deliberated at the penalty phase. It 18 appears that the statements, while potentially prejudicial, did not have a substantial 19 or injurious effect on the verdict. An error that does not have a substantial and 20 injurious effect on the outcome of the trial is deemed harmless. Eslaminia, 136 21 F.3d at 1237 (citing Bonin, 59 F.3d at 824). 22 Accordingly, the Court DENIES Claim 4(A)(8) on the merit. 23 E. Other Claims 24 1. Prosecutor’s argument concerning age and religion (Claims 25 7 & 5(D)(28)) 26 In Claim 7, petitioner argues that the trial court’s penalty phase instructions, 27 coupled with the prosecutor’s closing argument, improperly permitted the jury to 28 consider petitioner’s age at the time of the crime and his religious beliefs as

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1 aggravating factors. He contends that the jury therefore considered 2 constitutionally impermissible factors as aggravating evidence. In addition, 3 petitioner contends that trial counsel’s failure to object to the prosecutor’s 4 argument concerning age and religion resulted in IAC. 5 a. Age 6 Petitioner alleges that the prosecutor argued that petitioner’s age could be an 7 aggravating factor by categorizing life without parole as the more severe penalty 8 because petitioner would spend so many years in prison because he was eighteen 9 at the time of the crimes. Petitioner takes the position that age should be viewed 10 solely as mitigating. Petitioner also argues that factor (I) is constitutionally 11 overbroad and void for vagueness as applied in this case. 12 California Penal Code Section 190.3 is California’s death penalty statute. It 13 lists eleven factors that a jury must take into account in determining whether the 14 appropriate punishment in a death-eligible case is the death penalty or life 15 imprisonment without the possibility of parole. Factor (I) concerns “the age of the 16 defendant at the time of the crime.” Cal. Penal Code § 190.3(I). 17 The prosecutor listed all of the factors listed in Section 190.3 during his 18 closing argument. After doing so, the prosecutor stated: 19 Now, those are the guidelines and the factors by which we tell 20 our representatives of our community that they are to decide in a particular case the choise [sic] to make between life without parole or 21 the death penalty. 22 Viewing these various factors, one can see that, from the different philosophical, religious or moral view, one can consider a 23 factor in aggravation or a factor in mitigation. It’s up to the jury, the 24 representatives of this community, to decide that. For example, age. Some people would say that, “Oh, the 25 person is young. He should not be killed. That would be too much of 26 a cruel and inhuman punishment for someone so young.” Another point of view or philosophy would be to lock one who 27 is young up for the rest of their life without the possibility of parole 28 would be too cruel and inhuman to make a person suffer for that long.

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1 Another way of viewing age could be the person who is elderly, who commits a crime under the conditions in which the 2 ultimate penalty can be imposed, if the person doesn’t have much longer to live. The time in which is left to change that individual so 3 that he can become a contributing, albeit in prison, member of society is too short to change, and, therefore, kill him; or a person who is 4 elderly doesn’t have that long to live anyway. Don’t kill him. 5 Whether his age is a factor in mitigation or aggravation really depends on a philosophical view, religious or cultural background. 6 7 (14 RT 3633-34.) 8 The Supreme Court has rejected a void-for-vagueness challenge to factor 9 (I). Tuilaepa v. California, 512 U.S. 967 (1994). In Tuilaepa, the petitioner 10 argued that “the age factor is equivocal and that in the typical case the prosecution 11 argues in favor of the death penalty based on the defendant’s age, no matter how 12 old or young he was at the time of the crime.” Tuilaepa, 512 U.S. at 977. The 13 Court rejected the petitioner’s challenge: 14 It is neither surprising nor remarkable that the relevance of the 15 defendant’s age can pose a dilemma for the sentencer. But the difficulty in application is not equivalent to vagueness. Both the 16 prosecution and the defense may present valid arguments as to the significance of the defendant’s age in a particular case. Competing 17 arguments by adversary parties bring perspective to a problem, and thus serve to promote a more reasoned decision, providing guidance 18 as to a factor jurors most likely would discuss in any event. We find 19 no constitutional deficiency in factor (I). 20 Tuilaepa, 512 U.S. at 977. 21 Petitioner does not just challenge factor (I) as vague on its face but as 22 unconstitutionally vague and overbroad as applied to his case. A review of the 23 record, however, does not show any significant differences between what 24 petitioner argues here and what the petitioner argued in Tuilaepa. As the Supreme 25 Court held in Tuilaepa, the prosecutor presented valid arguments about how the 26 jury could view petitioner’s age in this case in an attempt to give the jury 27 perspective on how to view the factor. 512 U.S. at 977. Petitioner has failed to 28 demonstrate that factor (I) was either unconstitutionally overbroad or vague as

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1 applied to his particular case. 2 Moreover, the ultimate question the Court must answer in evaluating the 3 effect of the prosecutor’s argument is not whether “the prosecutor’s remarks were 4 undesirable or even universally condemned,” but “whether the prosecutor’s 5 comments so infected the trial with unfairness as to make the resulting conviction 6 a denial of due process,” Darden v. Wainwright, 477 U.S. 168, 181 (1986). It does 7 not appear that the prosecutor’s argument deprived the petitioner of a fair trial 8 pursuant to this standard. The prosecutor’s argument about age “did not 9 manipulate or misstate the evidence, nor did it implicate other specific rights of the 10 accused such as the right to counsel or the right to remain silent.” Darden, 477 11 U.S. at 182. As the Supreme Court has held, the age of a defendant at the time of 12 the crime can pose a dilemma to the sentencer, but the prosecutor did not urge the 13 jury to consider age only as an aggravating factor. Nor did the jury instructions do 14 so. The prosecutor’s argument that petitioner’s age might influence the jury’s 15 penalty verdict in several different ways was not improper and, therefore, did not 16 infect the trial with unfairness. 17 Accordingly, the Court DENIES this portion of Claim 7. 18 b. Religious views 19 Petitioner contends that the prosecutor impermissibly encouraged the jury to 20 consider petitioner’s religious beliefs as a factor in favor of the death penalty. 21 During the penalty phase, petitioner’s mother testified about petitioner’s 22 religious beliefs. Her testimony proceeded as follows: 23 Q: And now you are asking the jury in this case now to save the 24 life of your son is that correct? 25 A: Yes. 26 Q: And do you feel that your son has some good things that he can 27 contribute, even if he is in prison for the rest of his life? 28 A: Yes.

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1 Q: And you feel that he might have an opportunity to be saved? 2 A: Yes. 3 Q: In other words, saved by—from his religious or his religious scruples may save him, is that correct? 4 A: Yes. 5 Q: So he might have an opportunity to go to some place in the 6 hereinafter, is that correct? 7 (13 RT 3349.) The prosecutor used that testimony during his closing argument to 8 suggest that petitioner’s religious beliefs were not a reason to spare his life and 9 exercise mercy. Instead, the prosecutor argued, a death sentence would not 10 prevent petitioner from being saved and that it actually might give him a definitive 11 time during which he could repent and make peace with God. Specifically, the 12 prosecutor argued: 13 14 Or you have a variety of philosophies, religious point of view of there is a life after death, as expressed by his mother . . . ¶ From 15 that point of view, religious view of a life hereafter, whether it be reincarnation or Heaven or Hell, whatever it’s termed, we all know at 16 least one thing, we’re going to die some day. It’s just a question of 17 when. ¶ It’s just a question of what frame of mind and spirit we’re in when we die. ¶ Is it going to come unexpectedly when we have no 18 choice, perhaps at a given moment as to what condition we’re in? ¶ Is it going to be when we know we’re going to die, we can know the 19 exact moment, and if you wish to make peace, you can do so? And if 20 you don’t, so be it. It’s your choice. ¶ I urge you, ladies and gentleman of the jury, tha this defendant, there is no reason not to impose the death penalty. 21 (14 RT 3650-51.) 22 The California Supreme Court considered and rejected this claim on direct 23 appeal: 24 25 Defendant objects to the prosecutor’s reference to defendant’s religion. He argues that the prosecutor was making the “subtle 26 argument” that perhaps because of defendant’s religious beliefs, death would be a preferable penalty. We do not agree. The prosecutor’s 27 discussion of this subject was certainly not gratuitous, as defendant’s adoptive mother had testified that her son’s life should be spared 28 because he had “some good things that he can contribute, even if he is in prison for the rest of his life.” She agreed with defense counsel’s

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1 suggestion that defendant might be “saved” due to his religious principles, but the context was in terms of life without possibility of 2 parole, not death. The prosecutor’s remarks responded to this argument in mitigation by asserting, in essence, that defendant’s 3 religious beliefs might save him anyway, and hence defendant’s alleged religious beliefs did not constitute a reason not to impose the 4 death penalty. The prosecutor certainly did not argue religion as an aggravating factor of itself militating in favor of the death penalty. 5 Hernandez, 47 Cal. 3d 363 (internal citations omitted). 6 The jury was instructed pursuant to California Penal Code Section 190.3, 7 which lists the factors the jury must take into account in considering whether to 8 impose the death penalty or life in prison. (3 CT 682-83 (CALJIC No. 8.84.1, 9 tracking California Penal Code Section 190.3)) Petitioner’s religious beliefs are 10 not a statutorily enumerated aggravating factor in Section 190.3. 11 The most charitable reading of petitioner’s claim is that the prosecutor 12 argued that religion was an aggravating factor and that petitioner did not do 13 anything to open the door to this characterization. Because religion does not 14 appear as a factor listed in 190.3, the prosecutor’s argument that the jury should 15 view petitioner’s religious beliefs as an additional, non-statutory aggravating 16 factor would constitute impermissible or improper argument. Petitioner’s 17 contention fails. 18 First, the transcript does not reflect that the prosecutor argued that 19 petitioner’s religious beliefs were an aggravating factor. Instead, the record shows 20 that the prosecutor argued that the jury could view petitioner’s religious beliefs as 21 a mitigating factor but still decide that the death penalty did not prevent petitioner 22 from being saved. In other words, the jury could view petitioner’s religious 23 convictions and his desire for repentance as mitigating, but could still vote for the 24 death penalty because the death penalty by itself would not act as an impediment 25 to petitioner being saved. See Hernandez, 47 Cal. 3d 363 (“The prosecutor 26 certainly did not argue religion as an aggravating factor of itself militating in favor 27 of the death penalty.”). 28 Second, and more definitive, petitioner opened the door to the prosecutor’s

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1 argument about religion by putting on his mother’s testimony. Petitioner put his 2 mother on the stand to testify that petitioner’s religious convictions qualified as 3 mitigating pursuant to factor (k). Cal. Pen. Cod § 190.3 (k) (“Any other 4 circumstance which extenuates the gravity of the crime even though it is not a 5 legal excuse for the crime.”) The line of questioning that defense counsel engaged 6 in with petitioner’s mother shows that petitioner meant his mother’s testimony to 7 provide the jury with an additional reason to spare his life: his religious beliefs. 8 (13 RT 3349.) The prosecutor’s argument, therefore, appears to qualify as a 9 proper rebuttal to the mitigating evidence petitioner presented during the penalty 10 phase. See People v. Rundle, 43 Cal. 4th 76, 192 (2008) (“No misconduct 11 occurred . . . . [T]he prosecutor’s comment constituted proper rebuttal to the 12 character evidence presented by the defense in mitigation, and not a suggestion 13 that this was an aggravating factor.”), overruled on other grounds by People v. 14 Doolin, 45 Cal. 4th 390, 421 n.22 (2009) Petitioner fails to cite to any 15 case—federal or otherwise— that would support a different conclusion. 16 Even if the prosecutor erred by attempting to re-characterize petitioner’s 17 mitigating testimony about his religious beliefs, the Court again must determine 18 whether the prosecutor’s argument so infected the trial with unfairness that it 19 resulted in a denial of petitioner’s due process rights. Darden, 477 U.S. at 181. 20 As with the prosecutor’s argument concerning petitioner’s young age at the time of 21 the crime, the prosecutor did not deprive petitioner of a fair trial. The prosecutor’s 22 statement to the jury that a death sentence would not prevent petitioner from being 23 saved “did not manipulate or misstate the evidence.” Darden, 477 U.S. at 182. 24 The prosecutor offered the jurors a way to acknowledge or even accept petitioner’s 25 religious views but still vote for the death penalty. Because the prosecutor appears 26 to have engaged in a proper rebuttal argument, petitioner cannot establish that the 27 argument infected his trial with unfairness, and, accordingly, petitioner did not 28 suffer a denial of his due process rights.

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1 Accordingly, the Court DENIES this portion of Claim 7. 2 c. IAC (Claim 5(D)(28) 3 Petitioner argues that trial counsel failed to object to the prosecutor’s 4 argument that age and religion could be viewed as aggravating or mitigating. 5 To bring a successful IAC claim, petitioner must show that counsel 6 performed deficiently and that this deficient performance prejudiced petitioner. 7 Wiggins, 539 U.S. at 521. 8 Petitioner has failed to show deficiency with respect to counsel’s failure to 9 object to the prosecutor’s argument about either age or religion. As discussed, the 10 prosecutor did not err in arguing that petitioner’s age could qualify as either an 11 aggravating or a mitigating factor, nor did he err in arguing in rebuttal that the jury 12 could accept petitioner’s religious beliefs as a mitigating factor but still vote in 13 favor of the death penalty. Petitioner cannot show that counsel performed 14 deficiently by failing to object to the prosecutor’s argument, when that argument 15 was not erroneous. Even if the Court were to presume that counsel performed 16 deficiently by failing to object to the prosecutor’s argument, petitioner has failed 17 to make any showing of prejudice related to counsel’s failure to object. 18 Accordingly, the Court DENIES Claim 5(D)(28). 19 2. Prosecutor’s argument regarding the “ultimate penalty” 20 (Claims 8 & 5(D)(29)) 21 In Claim 8, petitioner contends that the prosecutor improperly argued that 22 the jury could decide that life imprisonment was the ultimate penalty, an argument 23 which minimized the jury’s sense of responsibility. Accordingly, the jury imposed 24 the death penalty in an arbitrary and capricious manner and deprived petitioner of 25 his right to a fair, reliable and non-arbitrary penalty phase verdict. Relatedly, in 26 Claim 5(D)(29), petitioner contends that trial counsel failed to object to the 27 prosecutor’s argument that life without possibility of parole, rather than death, was 28 the ultimate penalty.

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1 a. Prosecutor’s argument 2 In his closing argument, the prosecutor stated the following: 3 In this society, we have set up a condition or sanction that if 4 you take another person’s life under certain conditions, that sanction will be the ultimate penalty. Now, I say ultimate penalty because the 5 problem with our society is we come from such diverse cultural 6 backgrounds, philosophical backgrounds, religious backgrounds and theoretical backgrounds that we can’t decide what is the ultimate 7 penalty for taking another person’s life under certain conditions. 8 There are those in our society that believe, if you take another 9 person’s life, you pay for it with your life: a tooth for a tooth, an eye for an eye. There are those that, for whatever reasons, feel that 10 perhaps the ultimate penalty is torture, locking somebody up as an animal in a cage for the rest of their life. 11 It varies depending on your philosophy, depending upon your 12 background, your cultural background, your religious attitudes, your 13 religious views. All of those things vary. 14 That’s our problem in society, is we cannot decide what is the ultimate penalty, but what our society, our community has done, has 15 said, that taking into consideration our various views, philosophies, 16 religious backgrounds, we at least can decide that the ultimate penalty is either death or locking a person up in a cage for the rest of their 17 life, in prison without possibility of parole for the rest of their life. 18 Now in setting up these rules of society, our society, our community has decided that the person or persons that will enforce 19 that sanction will be the community itself, ala the jury members, the 20 people selected from the community. 21 Now, because we have a vast variety of backgrounds in what is the ultimate penalty, we have, and you will notice, in voir dire 22 eliminated those on the extremes, those that will say, “If you kill, you 23 die,” or those that say, “I will never kill.” We have attempted to bring within our definition of ultimate penalty those persons that will view 24 society’s ultimate penalty from various points of view and not automatically decide which within those ultimate penalties will be 25 imposed. 26 So we have selected, presumably, as best we can, a cross 27 section of the members of our community, twelve jurors coming from various walks of life, various cultural backgrounds, various 28 philosophical backgrounds, various religious backgrounds in order to

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1 decide this. 2 Now, society has stated that our ultimate penalty will satisfy our conditions of punishment, protection of society, because, if you 3 lock a person up or you kill them, society will be protected. 4 (14 RT 3625-28. ) 5 Petitioner relies on Caldwell v. Mississippi, 472 U.S. 320, 329 (1985), in 6 support of his position. He cites it to suggest that the prosecutor erred in arguing 7 to the jury that a life sentence without the possibility of parole, rather than a death 8 sentence, might be the ultimate penalty. In fact, Caldwell does not stand for that 9 proposition. In Caldwell, the Supreme Court held that the prosecutor erred by 10 implying to the jury that it was not making the ultimate decision to sentence a 11 defendant to death because an appellate court would review the decision. Id. The 12 Court held that “it is constitutionally impermissible to rest a death sentence on a 13 determination made by a sentencer who has been led to believe that the 14 responsibility for determining the appropriateness of the defendant’s death rests 15 elsewhere.” Id. The holding in Caldwell differs markedly from the situation 16 petitioner challenges here: the prosecutor’s argument that life imprisonment, 17 rather than a death sentence, may be the ultimate penalty. Petitioner has not 18 pointed to any source of law prohibiting or even questioning the prosecutor’s 19 argument that life in prison might be the ultimate penalty. 20 Even if the Court presumes error, petitioner cannot obtain relief unless the 21 prosecutor’s argument so infected the trial with unfairness that it resulted in a 22 denial of petitioner’s due process rights. Darden, 477 U.S. at 181. Petitioner has 23 failed to show how the prosecutor’s argument was so unfair that it violated his due 24 process rights. In fact, petitioner’s briefing on this claim includes only one 25 sentence with a citation to Caldwell v. Mississippi, a case that is not on point. 26 (Petr’s 8/23/07 Brief at 51.) Petitioner states only that the prosecutor erred by 27 arguing that life imprisonment may be the ultimate punishment, and he excludes 28 any discussion of prejudice in his briefing. Given the circumstances of the crimes,

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1 it seems unlikely that the prosecutor’s argument about life imprisonment had any 2 appreciable affect on the outcome of the penalty phase. 3 Accordingly, the Court DENIES Claim 8. 4 b. IAC 5 In addition to his claim that the prosecutor erred in arguing that death is the 6 ultimate punishment, petitioner also brings an IAC claim, alleging that counsel 7 “failed to object to the prosecutor’s argument that life without possibility of 8 parole, rather than death, was the ultimate penalty.” (Pet. at 51.) Petitioner’s IAC 9 claim fails. 10 Again, petitioner must show deficiency and prejudice. Wiggins, 539 U.S. at 11 521. Petitioner has failed to establish either. 12 Petitioner has not shown that the prosecutor erred by arguing that life 13 without parole may be the true ultimate penalty in this case, and, as discussed, his 14 reliance on Caldwell in order to make that point is misplaced. Petitioner’s IAC 15 claim based on counsel’s failure to object to the prosecutor’s argument, which 16 petitioner has not shown was erroneous, likewise fails. It would be very difficult 17 for petitioner to establish that counsel performed deficiently by failing to object to 18 a line of argument that was not erroneous. Even if the Court presumed that the 19 prosecutor erred by making such an argument, and, therefore, that trial counsel 20 erred by failing to object to that line of argument, petitioner has not shown by a 21 reasonable probability that but for counsel’s failure to object, the jury would have 22 voted for life without parole. In fact, objecting to the prosecutor’s line of 23 argument may have called more attention to the prosecutor’s argument about the 24 relative severity of the two punishments. Even if it did not bring unwanted 25 attention to the prosecutor’s argument, petitioner has not argued convincingly that 26 counsel’s objection to the argument, which the trial court may have overruled, 27 would have overcome the aggravating evidence in this case. 28 Accordingly, the Court DENIES this portion of Claim 5(D)(29).

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1 3. Prosecutor’s argument about aggravating and mitigating 2 factors (Claim 11(1)-(2)) 3 In Claims 11(1) and 11(2), petitioner alleges that the prosecutor improperly 4 argued that the factors set forth in subsections (a) through (k) of California Penal 5 Code Section 190.3 could be considered aggravating or mitigating. Petitioner 6 argues that factors (d) through (k) can only be mitigating pursuant to California 7 law. Relatedly, in Claim 5(D)(28), petitioner brings an IAC claim based on trial 8 counsel’s failure to object. 9 Petitioner contends that “the prosecutor urged the jurors to apply their own 10 subjective definition of aggravation and mitigation, based on their philosophical or 11 religious views and cultural backgrounds.” (Petr’s 2/1/08 Brief at 7.) As 12 discussed, the Court is not called upon to evaluate whether “the prosecutor’s 13 remarks were undesirable or even universally condemned.” Darden, 477 U.S. at 14 181 (internal quotation marks and citation omitted). Rather, the relevant inquiry is 15 “whether the prosecutor’s comments ‘so infected the trial with unfairness as to 16 make the resulting conviction a denial of due process.’” Id. at 181 (quoting 17 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Petitioner cannot show 18 that the prosecutor’s closing argument denied him a fair trial. See Darden, 477 19 U.S. at 182 (holding that the prosecutor’s argument did not manipulate or misstate 20 evidence, nor did it implicate other specifically enumerated rights of the accused). 21 First, petitioner’s characterization of the prosecutor’s argument is questionable. 22 In the portions of the record cited to by petitioner, the prosecutor only discusses 23 factor (I), which relates to age. (14 RT 3633-34; see also People v. Hernandez, 47 24 Cal. 3d at 364 (describing the challenged portions of the prosecutor’s closing 25 argument as discussing only age and finding “no reasonable probability that any 26 potential error in the prosecutor’s remarks affected the jury’s sentencing 27 decision”); Claim 7, supra, (denying petitioner’s claims challenging prosecutor’s 28 argument regarding age and religion)). In addition, a review of the transcript

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1 shows that the prosecutor did not catalogue each factor in the statute and then 2 argue that the jury should consider the absence of evidence for any of those factors 3 as aggravating. Nor did the prosecutor suggest that the jury should consider a 4 particular mitigating factor aggravating. Moreover, the instructions given at trial 5 properly directed the jury’s discretion at sentencing. (See infra Discussion of 6 Claims 11(3)-11(5).) Petitioner’s related IAC claim challenging counsel’s 7 failure to object to the prosecutor’s argument cannot prevail. Because the 8 prosecutor’s argument did not violate petitioner’s constitutional rights, trial 9 counsel cannot be deficient for failure to object to the argument. Even if the Court 10 presumed deficiency, petitioner has made no showing of prejudice. By extension, 11 the failure to object to permissible or proper argument cannot form the basis of an 12 IAC claim. Cf. United States v. Bosch, 914 F.2d 1239, 1247 (9th Cir. 1990) 13 (holding that failure to object to admissible evidence was not unreasonable or 14 prejudicial). 15 Accordingly, the Court DENIES Claims 11(1), 11(2) and 5(D)(28). 16 4. Jury instructions regarding the absence of evidence (Claims 17 11(3)-(5)) 18 In Claims 11(3) through 11(5), petitioner alleges that the trial court erred in 19 failing to instruct the jury that the absence of evidence as to any factor rendered 20 that factor irrelevant. In other words, petitioner claims that the prosecutor’s 21 argument that all of the factors could be aggravating or mitigating, challenged in 22 Claim 11(1) and 11(2), was exacerbated by the absence of an instruction stating 23 that the lack of evidence on any factor rendered that factor irrelevant rather than 24 aggravating. 25 The following instruction was given at trial: 26 Under the laws of this state, you must now determine which of 27 the said penalties shall be imposed on the defendant. 28 In determining which penalty is to be imposed on defendant, you

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1 shall consider all of the evidence which has been received during any part of the trial of this case [except as you may be hereafter instructed]. You shall 2 consider, take into account and be guided by the following facts, if applicable: 3 (a) The circumstances of the crime of which the 4 defendant was convicted in the present proceeding and the existence of any special circumstance[s] found to be 5 true. 6 (b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of 7 force or violence or the expressed or implied threat to use force or violence. 8 (c) The presence or absence of any prior felony 9 conviction. 10 (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or 11 emotional disturbance. 12 (e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the 13 homicidal act. 14 (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed 15 to be a moral justification or extenuation for his conduct. 16 (g) Whether or not the defendant acted under extreme duress or under the substantial domination of another 17 person. 18 (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his 19 conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect 20 or the affects of intoxication. 21 (I) The age of the defendant at the time of the crime. 22 (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the 23 offense was relatively minor. 24 (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the 25 crime. 26 27 (3 CT 631-633 (former CALJIC 8.84.1) (emphasis added); 14 RT 3681-83.) 28 The law of the Ninth Circuit forecloses petitioner’s claim. In Bonin v.

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1 Calderon, the petitioner challenged jury instructions that “listed the statutory 2 mitigating circumstances and instructed the jury to consider the listed factors that 3 were applicable.” Bonin, 59 F.3d at 848. The petitioner challenged the instruction 4 as allowing the jury to consider the absence of numerous possible mitigating 5 circumstances to be aggravating circumstances. Id. The Ninth Circuit held that 6 “[t]he cautionary words ‘if applicable’ warned the jury that not all of the factors 7 would be relevant and that the absence of a factor made it inapplicable rather than 8 an aggravating factor.” Id.; see also Williams v. Calderon, 52 F.3d 1465, 1481 9 (9th Cir. 1995) (upholding as constitutional an instruction that read to the jury the 10 entire list of factors relevant to the sentencing decision, even when some did not 11 apply given the inclusion of the words “if applicable”). The jury instruction used 12 at trial did not violate petitioner’s right to a fair, reliable and non-arbitrary penalty 13 determination. 14 Accordingly, the Court DENIES Claims 11(3), 11(4) and 11(5). 15 5. Confession coerced by threat of polygraph 16 (Claims 5(D)(14), 27(7)-(8), 27(12) & 28) 17 In Claims 27(7) and 27(8), petitioner alleges that his confession was coerced 18 by improper and highly suspect use of a polygraph examination. Petitioner also 19 argues that his mental state, age and the general circumstances at the time, coupled 20 with the threat of a polygraph examination, coerced petitioner to confess. In Claim 21 28, petitioner argues that his conviction should be vacated because his confession 22 was involuntary and, therefore, his confession was improperly admitted against 23 him at the guilt and penalty phases of his trial. In Claim 27(12), petitioner argues 24 that he was denied the opportunity to fully and fairly litigate these challenges to 25 his confession. The Court denied respondent’s motion for summary judgment on 26 these claims. (Summary Judgment Order at 86.) In Claim 5(D)(7), petitioner 27 contends that trial counsel’s failure to discover the true nature and extent of 28 petitioner’s disabilities caused counsel to forego additional meritorious grounds in

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1 support of the motion to suppress, specifically that petitioner was incompetent to 2 confess. In Claim 5(D)(14), petitioner contends that trial counsel unreasonably 3 failed to object to the admissibility of petitioner’s confession because it was 4 unreliable and inaccurate due to petitioner’s mental impairments. Petitioner also 5 alleges that trial counsel failed to present evidence or argue that damaging 6 admissions about the circumstances of the offense were inconsistent with other 7 evidence. 8 Petitioner does not seem to claim that any problem existed with respect to 9 the waiver of his rights. Instead, he appears to argue that several circumstances, 10 coupled with his young age and mental infirmity, made his confession involuntary. 11 He contends that after being interrogated for some time, he was taken to a 12 polygraph examiner “where he was told the truth would be learned.” (Pet. at 142.) 13 Petitioner confessed shortly thereafter without ever taking a polygraph exam. 14 Petitioner argues that the police used the threat of a polygraph exam as an 15 investigative technique designed to elicit a confession. (Id.) Moreover, petitioner 16 argues that he confessed because he held a false expectation of leniency. 17 Petitioner claims the police implied that he would be given psychiatric treatment 18 and that he would spend only ten to fifteen years in a mental hospital in exchange 19 for his statement. (Petr’s 8/23/08 Brief at 74.) 20 The Court must determine whether petitioner’s confession was voluntary. 21 Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (“‘Is the confession the 22 product of an essentially free and unconstrained choice by its maker? . . . If it is 23 not, if his will has been overborne and his capacity for self-determination critically 24 impaired, the use of his confession offends due process.’”) (quoting Culombe v. 25 Connecticut, 367 U.S. 568, 602 (1961)). The voluntariness of petitioner’s 26 confession raises a legal question rather than “one of simple historical fact.” 27 Miller v. Fenton, 474 U.S. 104, 115-16 (1985); see also Arizona v. Fulminante, 28 499 U.S. 279, 287 (1991). The ultimate legal issue of voluntariness differs from

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1 “subsidiary factual questions,” for example, “whether in fact the police engaged in 2 the intimidation tactics alleged.” Miller, 474 U.S. at 106, 108 n.3, 110-12; see also 3 Rupe, 93 F.3d at 1444 (“[S]ubsidiary questions, such as the length of the 4 interrogation or defendant’s prior experience with the legal system, are factual 5 matters on which [the Court] defer[s] to the state court”). 6 In considering the voluntariness of petitioner’s confession, the Court must 7 assess “the totality of the surrounding circumstances,” which includes “both the 8 characteristics of the accused and the details of the interrogation.” Bustamonte, 9 412 U.S. at 226. The key component of a finding of involuntariness is “police 10 overreaching” or “coercive police misconduct.” Colorado v. Connelly, 479 U.S. 11 157, 164 (1986); see also Hutto v. Ross, 429 U.S. 28 (1976) (per curium) (“The 12 test is whether the confession was extracted by any sort of threats or violence, [or] 13 obtained by any direct or implied promises, however slight, [or] by the exertion of 14 any improper influence.”) (internal quotation marks and citation omitted). In fact, 15 “[a]bsent police conduct causally related to the confession, there is simply no basis 16 for concluding that any state actor has deprived a criminal defendant of due 17 process of law.” Id. 18 Inducements generally serve to invalidate a confession. See, e.g., Brady v. 19 United States, 397 U.S. 742, 754 (holding that when the accused is “in custody, 20 alone and unrepresented by counsel . . . even a mild promise of leniency [has been] 21 deemed sufficient to bar the confession . . . because defendants at such times are 22 too sensitive to inducement and the possible impact on them too great to ignore 23 and too difficult to assess.”); see also Williamson v. United States, 512 U.S. 594, 24 620 (1994) (“[I]n cases where the statement was made under circumstances where 25 it is likely that the declarant had a significant motivation to obtain favorable 26 treatment, as when the government made an explicit offer of leniency in exchange 27 for declarant’s admission of guilt, the entire statement should be inadmissible.”) 28 (Kennedy, J., concurring); Haynes v. Washington, 373 U.S. 503, 505-13 (1963)

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1 (finding confession involuntary where police promised the accused that he could 2 call his wife after he was booked and told him he would be booked after he gave a 3 signed confession); but see United States v. Harrison, 34 F.3d 886, 891 (9th Cir. 4 1994) (noting that the Circuit has held that “the police generally may offer to tell 5 the prosecutor about the defendant’s cooperation and suggest that cooperation may 6 increase the likelihood of a more lenient sentence”). 7 The uncontroverted facts include the following: The police arrested 8 petitioner at his father’s home at two o’clock in the afternoon. (2 RT 430A.) The 9 police Los Angeles for the Long Beach police station an hour later. (2 RT 346A, 10 439A.) The officers arrived with petitioner in Long Beach at twenty minutes to 11 four and interviewed petitioner for thirty-five minutes. (2 RT 348A.) Petitioner 12 agreed to take a polygraph exam. (2 RT 349A, 440A, 441A.) Someone took 13 petitioner to the polygraph office at twenty minutes to five, less than three hours 14 after petitioner’s arrest. (2 RT 441A.) According to the polygraph examiner, 15 petitioner said that understood that he was not required to take a polygraph 16 examination. (2 RT 415A.) The examiner told petitioner what kinds of questions 17 would be asked, such as, “Do you know for sure who caused the death of either of 18 these girls?” and “Did you in any way cause the death of either [of] those girls?” 19 (2 RT 415A, 442A.) Petitioner waived his rights. (2 RT 415A, 442A.) Petitioner 20 confessed. (2 RT 415A-16A, 444A.) 21 Some of the events are disputed. The examiner testified that he told 22 petitioner that he (the examiner) was not there “to BS” petitioner in any way. 23 (2 RT 415A.) However, petitioner testified that the examiner told him that the 24 polygraph was just a formality because the examiner could tell by petitioner’s 25 slumped posture that petitioner was guilty. (2 RT 442A.) Petitioner also testified 26 that “the hint and suggestion” of psychiatric help “was there” if he cooperated. 27 (2 RT 446A.) However, both interrogating officers testified that they did not make 28 any statements to petitioner about him being crazy or needing psychiatric care or

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1 help. (2 RT 363A-64A, 495A.) Officer Colette also testified that he and Officer 2 Wren did not tell petitioner that the courts were lenient with people who 3 committed crimes when they were crazy or that those individuals probably would 4 be sent to psychiatric facilities. (2 RT 364A, 495A; see also 2 RT 352A (officer 5 testifying that petitioner’s ability to call his father was not contingent on a 6 confession, stating “this isn’t a deal.”) 7 Petitioner has failed to show by a preponderance of the evidence that the 8 officers induced him to confess. See Johnson, 304 U.S. at 468 (applying the 9 “preponderance of the evidence” standard on habeas). The only evidence of 10 inducement is petitioner’s testimony during a hearing on a motion to suppress 11 petitioner’s confession, which took place at the time of trial. The interrogating 12 officers testified at that hearing and disputed petitioner’s version of events. 13 Petitioner has not offered any evidence of inducement on habeas and accordingly 14 has failed to met his burden of showing that the officers induced him to confess by 15 implying he would receive treatment, a shorter sentence or both if he confessed. 16 The totality of the circumstances lead to a conclusion that petitioner 17 confessed voluntarily. Petitioner has shown neither inducement nor coercion. 18 See, e.g., Fulminante, 499 U.S. at 287-88 (holding that the interrogating officer’s 19 promise to protect the defendant from a credible threat of physical violence 20 rendered the confession involuntary); Culombe, 367 U.S. at 631-32 (holding 21 confession involuntary where accused was held for four days before confession, 22 questioned every day with the stated intention of obtaining a confession, not 23 advised of his right to remain silent, denied a lawyer even though he requested one 24 and confronted with his wife and daughter at the police station in an encounter that 25 left him sobbing), Reck v. Pate, 367 U.S. 433, 440 (1961) (invalidating confession 26 as involuntary where accused was held without adequate food, without counsel, 27 without the assistance of family or friends, incommunicado and physically 28 weakened and in intense pain); Blackburn v. Alabama, 361 U.S. 199, 206 (1960)

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1 (finding coercion where the prisoner was insane and incompetent at the time of 2 confession and where the interrogation lasted eight to nine hours, the accused was 3 without counsel or an advocate and the sheriff, rather than the accused, composed 4 the confession); Payne v. Arkansas, 356 U.S. 560, 561 (1958) (finding confession 5 involuntary where “a mentally dull 19-year-old youth” was arrested without a 6 warrant, not advised of his rights to remain silent or to counsel, held for three days 7 without counsel or an advisor, prohibited from making a phone call, denied food 8 for long periods of time and told by the chief of police that if he confessed, the 9 police would attempt to protect him from an angry mob), overruled on other 10 grounds by Fulminante, 499 U.S. at 310; Watts v. Indiana, 338 U.S. 49, 53-54 11 (1949) (holding that solitary confinement for the first two days following arrest, 12 coupled with interrogation for five nights, intermittent daytime interrogations, no 13 hearing before a magistrate, no advisement of constitutional rights, no counsel or 14 professional aid and inadequate rest and food resulted in a confession secured 15 “through the pressure of unrelenting interrogation”); see also Culombe, 367 U.S. at 16 584 622 (cataloguing the kinds of factual scenarios that support a finding of 17 involuntariness, including physical brutality, threats of physical brutality, “terror- 18 arousing” interrogation, the shuttling of prisoners from jail to jail, torture, sleep 19 deprivation, starvation, threat of a lynch mob or “gruel[]ing, intensely unrelaxing 20 questioning over protracted periods”). 21 Because “coercive police activity is a necessary predicate to the finding that 22 a confession is not ‘voluntary’ within the meaning of the Due Process Clause of 23 the Fourteenth Amendment,” petitioner’s claim fails. Connelly, 479 U.S. at 167. 24 Petitioner’s argument that his mental state and age at the time of the confession 25 militate in favor of a finding of involuntariness also fall short. “[W]hile mental 26 condition is surely relevant to an individual’s susceptibility to police coercion, 27 mere examination of the confessant’s state of mind can never conclude the due 28 process inquiry.” Connelly, 479 U.S. at 165. Petitioner has failed to show

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1 coercion by the police, a necessary predicate to relief. 2 In addition, petitioner’s claim of IAC fails. Petitioner has not put forth any 3 evidence that his mental condition prevented him from confessing voluntarily, or 4 that his condition resulted in an unreliable or inaccurate confession. Counsel, 5 therefore, was not deficient for failing to argue that petitioner’s mental deficiencies 6 resulted in an inaccurate or unreliable confession. Furthermore, without evidence 7 that petitioner was too mentally infirm to make a valid confession, an argument 8 that the confession was invalid on that basis, likely would have failed. 9 In Claim 27(12), petitioner alleges that “[i]n the proceedings below, [he] 10 was not given an opportunity to full and finally litigate these issues, which call 11 into question petitioner’s confession and the veracity and credibility of the lead 12 investigator” fails. (Pet. at 143.) Petitioner litigated this issue in the trial court at a 13 hearing on the motion to suppress his confession. Petitioner and the interrogating 14 officers testified at the hearing. Petitioner has failed to allege in what way the 15 hearing was incomplete or unfair. His conclusory allegations do not warrant relief. 16 Jones, 66 F.3d at 204-05 (holding that conclusory allegations without specific 17 factual allegations are insufficient to support habeas relief); cf. Allison, 431 U.S. 18 63, 75 n.7 (1977) (“[T]he petition is expected to state facts that point to a real 19 possibility of constitutional error.”) (citation and internal quotation marks 20 omitted). 21 Accordingly, the Court DENIES Claims 5(D)(7), 5(D)(14), 27(7), 27(8), 22 27(12) and 28. 23 6. Prosecutorial and police overreaching (Claims 27(10) & 24 27(13) 25 In Claims 27(10) and 27(13), petitioner contends that prosecutorial and 26 police overreaching resulted in his unfair conviction. 27 Specifically, petitioner contends in Claim 27(10) that the “police and 28 prosecution failed to provide trial counsel with policy reports, investigation

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1 reports, crime lab reports, and other pertinent and perhaps exculpatory 2 documentation after their initial production of material to trial counsel, despite 3 their continuing obligation to do so.” (Pet. at 143.) In Claim 27(13), petitioner 4 alleges that the “overreaching of the police and prosecution is further evidenced by 5 the destruction of some forensic evidence and documentation, including a number 6 of test tubes.” (Pet. at 144.) Petitioner fails to point to the reports and exculpatory 7 documentation the police and prosecution failed to turn over. He also fails to 8 allege what test tubes were destroyed. Petitioner’s conclusory allegations cannot 9 support habeas relief. Jones, 66 F.3d at 204-05 (holding that conclusory 10 allegations without specific factual allegations are insufficient to support habeas 11 relief). Moreover, “the petition is expected to state facts that point to a real 12 possibility of constitutional error.” Allison, 431 U.S. 63, 75 n.7 (1977) (citation 13 and internal quotation marks omitted). 14 Accordingly, the Court DENIES Claims 27(10) and (13). 15 7. Instructional error (Claim 30) 16 It is unclear what petitioner seeks in Claim 30. It appears that petitioner 17 argues one of two things. Most simply, he may argue that he is entitled to a new 18 penalty phase trial if the Court grants penalty phase relief. Alternatively, he may 19 bring a substantive claim that he is entitled to a new penalty phase trial because the 20 California Supreme Court invalidated one of his multiple murder special 21 circumstances, and the jury’s erroneous consideration of two multiple murder 22 special circumstances—coupled with jury instructions that included language that 23 the jury “shall” impose death if the aggravating circumstances outweighed the 24 mitigating circumstances—violated his Eighth and Fourteenth Amendment rights. 25 In denying summary judgment to respondent on this claim, the Court read 26 the claim as petitioner asking for a new penalty phase trial if the Court grants 27 penalty relief to petitioner. The relevant part of the order states: 28 First, the claim will not become relevant until and unless the

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1 Court vacates one of the petitioner’s convictions. The Court can address the claim at that time. Second, petitioner’s claim is supported 2 by common sense. The jury decided to impose the death penalty 3 based on the circumstances of the crime and the special circumstances found to be true. If petitioner’s conviction for one of the murders, 4 rapes, or sodomies was overturned, it is reasonably likely that the jury, without the evidence of one or more of those crimes presented to 5 them, would not have voted to impose a death sentence. Even though 6 he is under two separate death sentences, the evidence of the crimes was introduced in one trial and the jury relied on the evidence of two 7 murders, two rapes, and two sodomies to vote for the death penalty. It is difficult to state with certainty that the jury would have made the 8 same decision had it been presented with only one set of crimes. 9 Finally, petitioner’s claim is intelligible. While he presents no authority to support the request, it is clear what he is asking for—a 10 new penalty trial if any of his convictions are overturned. 11 (Summary Judgment Order at 90.) 12 It seems however, that petitioner meant to make a more nuanced argument 13 advanced in the briefing filed on August 23, 2007. The crux of petitioner’s 14 contention appears to be that (1) because the California Supreme Court invalidated 15 one of the multiple murder special circumstances found true by the jury and (2) 16 because the trial court gave the jury an instruction that appeared to require the jury 17 to impose the death penalty if the aggravating factors outweighed the mitigating 18 factors by using “shall” language, petitioner is entitled to a new penalty phase trial. 19 In support of this argument, petitioner relies on several sources. First, he 20 points to the jury instructions issued at trial. The jury received CALJIC No. 21 8.84.1, which tracks California Penal Code 190.3, the California death penalty 22 statute. (3 CT 682-83.) The jury also received a modified version CALJIC 23 8.84.2.1, which stated: 24 25 It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of 26 parole, shall be imposed on the defendant. 27 After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into 28 account and be guided by the applicable factors of aggravating and

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1 mitigating circumstances upon which you have been instructed. 2 If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. 3 However, if you determine that the mitigating circumstances 4 outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without possibility of 5 parole. 6 (3 CT 684-85 (emphasis added).) Petitioner argues that the instructions gave the 7 jury the impression that it had to mechanically weigh the aggravating factors 8 against the mitigating factors and that it had no choice but to impose the death 9 penalty if the aggravating factors outweighed the mitigating factors. 10 In Boyde v. California, the Supreme Court held that the very same “shall” 11 language used during petitioner’s trial did not violate the Eighth Amendment. 494 12 U.S. 370, 376-77 (1989). The Court held that Bylstone v. Pennsylvania, 494 U.S. 13 299 (1990), decided the same term, foreclosed petitioner’s claim in Boyde. 14 Boyde, 494 U.S. at 377. “In Blystone, [the Supreme Court] rejected a challenge to 15 an instruction with similar mandatory language, holding that ‘[t]he requirement of 16 individualized sentencing in capital cases is satisfied by allowing the jury to 17 consider all relevant mitigating evidence.’” Boyde, 494 U.S. at 377 (quoting 18 Blystone, 494 U.S. at 307). The Supreme Court held that “there is no 19 constitutional requirement of unfettered sentencing discretion in the jury, and 20 States are free to structure and shape consideration of mitigating evidence ‘in an 21 effort to achieve a more rational and equitable administration of the death 22 penalty.’” Boyde, 494 U.S. at 377 (quoting Franklin v. Lynaugh, 487 U.S. 164, 23 181 (1988) (plurality opinion)). 24 In accordance with Boyde, and as admitted by the parties, the penalty phase 25 instructions used at petitioner’s trial allowed the jury to consider mitigating 26 evidence. (3 CT 682-85.) Moreover, a review of the closing arguments shows that 27 both the prosecutor and defense counsel discussed a number of things the jury 28 should consider in making its decision, implying that the process did not involve a

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1 straightforward, mechanical comparison of the weight of the mitigating factors 2 against the weight of the aggravating factors.12 3 A review of the transcript is not dispositive in this case, however. Petitioner 4 not only challenges the mandatory “shall” language in the instruction, but also the 5 instruction’s language combined with the improper consideration by the jury of 6 two multiple murder special circumstances, one of which the California Supreme 7 Court invalidated on appeal. Hernandez, 47 Cal. 3d at 357. In finding error but no 8 prejudice, the California Supreme Court concluded as follows: “The jury was not 9 told to mechanically count up aggravating factors. It was not confused as to the 10 11 12 The prosecutor emphasized the importance of each juror’s diverse philosophies, views 12 and experiences in the deliberative process. (14 RT 3625, 3626, 3627, 3628-29, 3630, 3633.) While the prosecutor repeated the “shall impose” language contained in CALJIC 8.84.2, the 13 prosecutor also stated that the decision between the death penalty and life imprisonment was not an automatic one. (Id. at 3628 (“We have decided that it would not be automatic. We, as a 14 society, have stated it will not be life without parole, it will not be death. It is not an automatic decision.”).) The prosecutor explained to the jury that, “It is not based upon general 15 philosophies of an individual as to what the ultimate punishment, the ultimate protection of society, or the ultimate deterrents in general. We have, in selecting the representatives of our 16 community to decide this, told them you decide it as to this individual, as to what the ultimate punishment shall be, the ultimate protection shall be, or the ultimate deterrent shall be as to this 17 person.” (Id. at 3628-29.) The prosecutor also stated, “Depending upon the cultural backgrounds, philosophical views, religious attitudes, thoughts concerning psychiatry, thoughts 18 concerning religion, thoughts concerning sociological theories, behavior motivation, things like this, decide based upon certain circumstances what is an aggravation and what is a mitigation, 19 and then, if one outweighs the other, impose one or the other of the ultimate sentences.” (Id. at 3630.) The prosecutor also asked the jury, “In this particular case, should this defendant be 20 given life without possibility of parole, as requested by the relatives and friends of the defendant, the hope that he may become a contributing member of society some day? Should you end all 21 hope with the death penalty?” (Id. at 3640.) He continued, “There are various philosophies—protection, deterrence, punishment. We have a wide variety of philosophies in 22 our society. Depending on how you view these factors, as applied to this defendant, you decide. What should you do?” (Id.) 23 Defense counsel tried to appeal to each individual juror. He stated, “What happens is you have your own individual conscience . . . . You don’t represent the community at all. What 24 you do, you represent each one of you individually, and when each one of you—or if each one of you decides that Frances Hernandez should die, then each one of you has to be responsible for 25 that decision.” (Id. at 3655.) He continued, “You have to live with the decision that you individually made for the rest of your lives. There is no way that you can avoid that.” (Id. at 26 3670; see also id. at 3671 (“It is a decision which is your own individual determination which you have to live with for the rest of your lives.”).) He emphasized that each juror was “one 27 hundred percept responsible for the decision” he or she would make, and that it took a unanimous decision by all twelve jurors to impose the death penalty. (14 RT 3656, 3656-66.) 28 Defense counsel concluded by urging the jury to find that the mitigating circumstances outweighed the aggravating circumstances. (Id. at 3671, 3673.)

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1 number of victims. It is inconceivable that finding true one more multiple-murder 2 special circumstances than was strictly correct had any influence on the outcome 3 of the deliberations at the penalty phase.” Id. 4 Petitioner takes issue with the state court’s finding that the error did not 5 cause him prejudice. He cites to Daniels v. Woodford, in which the Ninth Circuit 6 found prejudice from the very error in petitioner’s case, namely, the erroneous 7 consideration of two multiple murder special circumstances together with the 8 “shall” jury instruction used in petitioner’s case. 428 F.3d 1181, 1212-14 (9th Cir. 9 2005). The Circuit found that because of the mandatory language requiring the 10 imposition of the death penalty if the jury found that the aggravating factors 11 outweighed the mitigating factors, the so-called “double counting error” was not 12 harmless. Id. at 1214 (“As the Supreme Court has noted, when the sentencing 13 body is told to weigh an invalid factor in its decision, a reviewing court may not 14 assume it would have made no difference if the thumb had been removed from 15 death’s side of the scale.”) (internal quotation marks and citation omitted). The 16 Ninth Circuit concluded that “[w]hen coupled with other penalty phase 17 errors . . . the trial court’s failure to instruct the jury that it could not double count 18 the multiple-murder special circumstance gave the jury one more improper reason 19 to tip the scales against [petitioner].” Daniels, 428 F.3d at 1214. Daniels held that 20 the cumulative prejudice of the “double counting” error along with the “shall” 21 language in the jury instruction and other penalty phase errors “so infected the 22 [proceedings] with unfairness as to make the death sentence invalid.” Id. at 1214 23 (internal quotation marks and citation omitted). The extra multiple murder special 24 circumstance coupled with the use of the mandatory language in the jury 25 instructions amounted to a constitutional error in petitioner’s case. Daniels, 428 26 F.3d at 1212-14. It is likely that the combined error caused at least some prejudice 27 to petitioner, but the impact of the error is part of a cumulative error analysis. Id. 28 (finding cumulative error).

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1 Accordingly, the Court DENIES Claim 30 but will consider this error in the 2 cumulative error analysis. 3 8. Cumulative error 4 The Court also must consider the cumulative effect of the constitutional 5 errors that occurred at petitioner’s trial. United States v. Frederick, 78 F.3d 1370, 6 1381 (9th Cir. 1996) (citing United States v. Green, 648 F.2d 587, 597 (9th Cir. 7 1981)); see also Kwan Fai Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992) (per 8 curiam) (“We need not [] decide whether these deficiencies alone meet the 9 prejudice standard because other significant errors occurred that, considered 10 cumulatively, compel affirmance of the district court’s grant of habeas corpus as to 11 the sentence of death.”); Harris, 64 F.3d at 1439 (“By finding cumulative 12 prejudice, we obviate the need to analyze the prejudicial effect of each 13 deficiency.”). While counsel’s deficient performance at the penalty phase and 14 several instances of juror misconduct entitle petitioner to relief, the Court also 15 finds that the cumulative effect of these errors, along with the penalty phase 16 instructional error raised in Claim 30, caused petitioner unconstitutional prejudice 17 at the penalty phase. Counsel’s deficiencies resulted in an incoherent hodgepodge 18 of mitigating evidence that failed to present evidence of petitioner’s poor start in 19 life, his unfortunate circumstances growing up and his serious mental and 20 neurological deficiencies. In addition, one juror consulted her minister during 21 penalty phase deliberations and was advised to elevate petitioner’s potential for 22 rehabilitation over all other considerations. Some of the jurors who deliberated at 23 the penalty phase were exposed to a newspaper article linking petitioner to two 24 strangulation murders similar to those for which he faced the death penalty. 25 Petitioner did not commit the murders. Also before penalty phase deliberations 26 concluded, an alternate juror informed the foreman that petitioner was accused of 27 committing another uncharged rape. Finally, the trial court instructed the jury that 28 it shall impose the death penalty upon finding that aggravating circumstances

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1 outweighed mitigating circumstances and the jury improperly considered two 2 multiple murder circumstances, one of which was vacated on appeal. These 3 combined errors resulted in a constitutionally infirm penalty phase trial. See Parle 4 v. Runnels, 505 F.3d 922, 927 n.6 ( “In analyzing prejudice in a case in which it is 5 questionable whether any single trial error examined in isolation is sufficiently 6 prejudicial to warrant reversal, [the Ninth Circuit] has recognized the importance 7 of considering the cumulative effect of multiple errors and not simply conducting a 8 balkanized, issue-by-issue harmless error review.”) (internal quotation marks and 9 citations omitted); see also Daniels v. Woodford, 428 F.3d 1181, 1214 (9th Cir. 10 2005) (“Errors that might not be so prejudicial as to amount to a deprivation of due 11 process when considered alone, may cumulatively produce a trial setting that is 12 fundamentally unfair.”) (internal quotation marks omitted). 13 Accordingly, the Court GRANTS petitioner’s claim of cumulative error at 14 the penalty phase. 15 III. Order 16 1. For the foregoing reasons, the Court hereby GRANTS the petition 17 for writ of habeas corpus on the basis of Claims 4(A)(1), 4(A)(7)(d), 4(A)(2), 18 4(A)(3), 5(C)(7), 5(D)(27), 5(D)(32), 5(D)(40) and cumulative error. The Court 19 orders that the sentence of death in the matter of People v. Francis Hernandez, 20 Case No. A-022813 in the California Superior Court for the County of 21 Los Angeles, be VACATED. 22 2. All other claims are DENIED. 23 IT IS SO ORDERED. 24 Dated: August 16, 2011. 25 26

27 Ronald S. W. Lew United States District Judge 28

211

App. D - 264 Case 2:90-cv-04638-RSWL Document 569 Filed 08/16/11 Page 212 of 212 Page ID #:1254 NOTICE PARTY SERVICE LIST Case No. Case Title Title of Document

ADR US Attorneys Office - Civil Division -L.A.

BAP (Bankruptcy Appellate Panel) US Attorneys Office - Civil Division - S.A. BOP (Bureau of Prisons) US Attorneys Office - Criminal Division -L.A. CA St Pub Defender (Calif. State PD) US Attorneys Office - Criminal Division -S.A.

CAAG (California Attorney General’s Office - US Bankruptcy Court Keith H. Borjon, L.A. Death Penalty Coordinator) US Marshal Service - Los Angeles (USMLA) Case Asgmt Admin (Case Assignment Administrator) US Marshal Service - Riverside (USMED) Chief Deputy Admin US Marshal Service -Santa Ana (USMSA) Chief Deputy Ops US Probation Office (USPO) Clerk of Court US Trustee’s Office Death Penalty H/C (Law Clerks) Warden, San Quentin State Prison, CA Dep In Chg E Div ADD NEW NOTICE PARTY Dep In Chg So Div (if sending by fax, mailing address must also be provided) Federal Public Defender Name: Fiscal Section Firm: Intake Section, Criminal LA Address (include suite or floor): Intake Section, Criminal SA Intake Supervisor, Civil

MDL Panel *E-mail:

Ninth Circuit Court of Appeal *Fax No.: PIA Clerk - Los Angeles (PIALA) * For CIVIL cases only JUDGE / MAGISTRATE JUDGE (list below): PIA Clerk - Riverside (PIAED) PIA Clerk - Santa Ana (PIASA) PSA - Los Angeles (PSALA) PSA - Riverside (PSAED) PSA - Santa Ana (PSASA)

Schnack, Randall (CJA Supervising Attorney) Initials of Deputy Clerk

Statistics Clerk

G-75 (08/08) NOTICE PARTY SERVICE LIST App. D - 265 Case: 11-99013, 02/16/2018, ID: 10766628, DktEntry: 116, Page 1 of 1

UNITED STATES COURT OF APPEALS FILED

FEB 16 2018 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FRANCIS G HERNANDEZ, No. 11-99013

Petitioner-Appellant, D.C. No. 2:90-cv-04638-RSWL Central District of California, v. Los Angeles

KEVIN CHAPPELL, Warden, California ORDER State Prison at San Quentin,

Respondent-Appellee.

Pursuant to G.O. § 3.2.h, Judge Wardlaw has been drawn as the replacement for Judge Pregerson. The panel for this case will now consist of Circuit Judges

REINHARDT, WARDLAW and NGUYEN.

FOR THE COURT:

MOLLY C. DWYER CLERK OF COURT

By: Omar Cubillos Deputy Clerk Ninth Circuit Rule 27-7

App. E - 266 Case: 11-99013, 04/03/2018, ID: 10822735, DktEntry: 120, Page 1 of 1

UNITED STATES COURT OF APPEALS FILED

APR 3 2018 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FRANCIS G HERNANDEZ, No. 11-99013

Petitioner-Appellant, D.C. No. 2:90-cv-04638-RSWL Central District of California, v. Los Angeles

KEVIN CHAPPELL, Warden, California ORDER State Prison at San Quentin,

Respondent-Appellee.

Pursuant to G.O. § 3.2.h, Judge M. Smith has been drawn as the replacement for Judge Reinhardt. The panel for this case will now consist of Circuit Judges

WARDLAW, M. SMITH and NGUYEN.

FOR THE COURT:

MOLLY C. DWYER CLERK OF COURT

By: Allison Fung Deputy Clerk Ninth Circuit Rule 27-7

App. F - 267 Case: 11-99013, 05/21/2018, ID: 10880412, DktEntry: 128, Page 1 of 1

UNITED STATES COURT OF APPEALS FILED

MAY 21 2018 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FRANCIS G HERNANDEZ, No. 11-99013

Petitioner-Appellant, D.C. No. 2:90-cv-04638-RSWL Central District of California, v. Los Angeles

KEVIN CHAPPELL, Warden, California ORDER State Prison at San Quentin,

Respondent-Appellee.

Before: WARDLAW, M. SMITH, and NGUYEN, Circuit Judges.

Appellee’s petition for rehearing before a three-judge panel is GRANTED.1

Oral argument will take place during the week of September 24, 2018, in

Pasadena, California. The date and time will be determined by separate order. For further information or special requests regarding scheduling, please contact

Calendar Unit Supervisor Arden Wong at [email protected] or (415)

355-8191.

1 The government’s motion for leave to file a reply to the response to the petition for rehearing (ECF No. 127) is DENIED as moot.

App. G - 268 Welcome Supreme Court Change court Search Court data last updated: 05/23/2012 12:05 PM E-mail

Calendar Case Summary Docket Briefs Disposition Parties and Attorneys Lower Court Help Docket (Register of Actions) HERNANDEZ (FRANCIS G.) ON H.C. Case Number S013027 Date Description Notes

11/27/1989 Petition for writ of habeas & Applic. for Stay of Execution of Sentence of Death; Execution Date: corpus filed 12-5-89.

11/29/1989 Stay of execution order Execution of judgment of death stayed pending final determination of filed habeas petition.

11/29/1989 Informal response Letter sent to respondent requesting informal response (Rule 60); due requested 12-14-89. Any reply by petitioner due within 15 days (see C.C.P. sec. 1013).

12/12/1989 Application for Extension of By Atty Gen to file Informal response to Hc Time filed

12/13/1989 Received: Addendum to page 54 of Habeas Petn. 12/14/1989 Letter sent to: Resp Advising Ext. granted to 12-21-89 to file Informal Response.

12/21/1989 Informal Response filed Resp Atty Gen (AA)

12/22/1989 Received letter from: Resp in Ans to Addendum to page 54

12/29/1989 Application for Extension of To file reply To Informal Response. Time filed

01/02/1990 Letter sent to: Petnr Advising Ext. granted to 2-9-90 to file Reply.

02/09/1990 Reply to Informal Response (41 Pp. Excluding attachments). filed (AA)

02/15/1990 Filed: Suppl Petn for Writ of Habeas Corpus (10 Pp.)

02/27/1990 Filed: Petnr's Emergency Confidential request for Habeas Funds.

03/02/1990 Order filed: Re Petnr's Emergency Applic. of 2-27-90.

04/03/1990 Filed: Petnr's Applic. for Leave to file Suppl Decl.

04/03/1990 Filed: Petnr's Suppl Decl. (of Dorothy Otnow Lewis, M.D.) in support of Petn.

05/31/1990 Petition for writ of Habeas Mosk, J. did not participate Corpus denied (AA)

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App. H - 269 Welcome Supreme Court Change court Search Court data last updated: 05/23/2012 12:05 PM E-mail

Calendar Case Summary Docket Briefs Disposition Parties and Attorneys Lower Court Help Docket (Register of Actions) HERNANDEZ (FRANCIS G.) ON H.C. Case Number S029520 Date Description Notes

10/30/1992 Petition for writ of By Cnsl for Petnr Hernandez habeas corpus filed

01/27/1993 Petition for writ of as untimely (In re Swain (1949) 34 Cal.2d 300, 302) and on the merits. In addition, Habeas Corpus allegations III.A & III.B in the petition were raised and rejected in petitioner's previous denied (AA) habeas petition, which this court denied on 5-30-89. (In re Miller (1941) 17 Cal.2d 734, 735.) Allegations IIII.D, IV, V, & VI of the petition fail to allege with sufficient particularity facts supporting an entitlement to relief. (In re Swain, supra, 34 Cal.2d at p. 304.) Mosk, J., did not participate.

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App. I - 270 9/25/2019 11-99013 Docket

PACER fee: Exempt

General Docket United States Court of Appeals for the Ninth Circuit Court of Appeals Docket #: 11-99013 Docketed: 09/21/2011 Nature of Suit: 3535 Habeas Corpus: Death Penalty Termed: 01/14/2019 Francis Hernandez v. Kevin Chappell Appeal From: U.S. District Court for Central California, Los Angeles Fee Status: IFP

Case Type Information: 1) prisoner-death penalty 2) state 3) death penalty habeas corpus

Originating Court Information: District: 0973-2 : 2:90-cv-04638-RSWL Court Reporter: Sheri S. Kleeger Court Reporter: Leonore LeBlanc, Court Reporter Trial Judge: Ronald S.W. Lew, Senior District Judge Date Filed: 08/28/1990 Date Order/Judgment: Date Order/Judgment EOD: Date NOA Filed: Date Rec'd COA: 08/16/2011 08/17/2011 09/16/2011 08/16/2011

Prior Cases: None

Current Cases: None

FRANCIS G HERNANDEZ (State Prisoner: C-69900) Margo A. Rocconi, Esquire, Federal Public Defender Petitioner - Appellant, Direct: 213-894-7521 [COR LD NTC Assist Fed Pub Def] FPDCA - Federal Public Defender's Office (Los Angeles) 321 East Second Street Los Angeles, CA 90012-4202

Tracy Casadio, Esquire, Deputy Federal Public Defender Direct: 213-894-5375 [COR NTC Assist Fed Pub Def] FPDCA - Federal Public Defender's Office (Los Angeles) 321 East Second Street Los Angeles, CA 90012-4202 v.

KEVIN CHAPPELL, Warden, California State Prison at San James William Bilderback, II, Supervising Deputy Attorney General Quentin Direct: 213-269-6160 Respondent - Appellee, [COR NTC Dep State Aty Gen] AGCA-Office of the California Attorney General Suite 8001 300 South Spring Street Los Angeles, CA 90013

Gary Lieberman, Deputy Attorney General [COR NTC Assist Fed Pub Def] AGCA-Office of the California Attorney General 300 South Spring Street Los Angeles, CA 90013

MICHAEL MARTEL, Acting Warden, California State Prison at San Quentin Terminated: 02/04/2014 Respondent - Appellee, ------

CRIMINAL JUSTICE LEGAL FOUNDATION Kent S. Scheidegger, Legal Director https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 1/12

App. J - 271 9/25/2019 11-99013 Docket Amicus Curiae, Direct: 916-446-0345 [COR LD NTC Retained] CRIMINAL JUSTICE LEGAL FOUNDATION 2131 L Street Sacramento, CA 95816-4924

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 2/12

App. J - 272 9/25/2019 11-99013 Docket

FRANCIS G HERNANDEZ,

Petitioner - Appellant,

KEVIN CHAPPELL, Warden, California State Prison at San Quentin,

Respondent - Appellee.

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 3/12

App. J - 273 9/25/2019 11-99013 Docket

09/21/2011 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. The schedule is set as follows: 3 pg, 123 KB Appellant Francis G Hernandez opening brief due 12/20/2011. Appellee Michael Martel answering brief due 02/20/2012. Appellant's optional reply brief is due 21 days after service of the answering brief. [7901610] (PA) [Entered: 09/21/2011 01:17 PM]

10/06/2011 2 Filed (ECF) notice of appearance of Gary A. Lieberman for Appellee Michael Martel. Date of service: 2 pg, 35.74 KB 10/06/2011. [7919926] (Lieberman, Gary) [Entered: 10/06/2011 04:06 PM]

10/06/2011 3 Added attorney Gary Lieberman for Michael Martel, in case 11-99013. [7919981] (PA) [Entered: 10/06/2011 04:24 PM]

10/06/2011 4 Terminated Robert Spencer Henry for Michael Martel in 11-99013 [7919984] (PA) [Entered: 10/06/2011 04:24 PM]

12/13/2011 5 Filed (ECF) Appellant Francis G Hernandez Motion for miscellaneous relief [Motion for New Briefing 5 pg, 42.51 KB Schedule and to Include a Date for Transcript Production]. Date of service: 12/13/2011. [7999801] (Rocconi, Margo) [Entered: 12/13/2011 05:51 PM]

12/16/2011 6 Filed clerk order (Deputy Clerk: ME): Granting Motion (ECF Filing) Appellant’s unopposed Motion For 1 pg, 24.36 KB New Briefing Schedule And To Include A Date For Transcript Production, construed as a motion to extend the time to file the opening brief, is granted as follows. Appellant’s counsel designated transcripts with the district court on October 6, 2011, but due to a clerical error the transcript order vouchers were not provided to the court reporters concurrently with the transcript designation. Three transcripts – for status conferences on 12/4/06, 4/30/07, and 6/25/07 – have not yet been filed. If Appellant has not already done so, Appellant shall supply the reporters with the vouchers by December 23, 2011. Court Reporters Lenore LeBlanc and Sherri Kleeger shall file the transcripts on or before January 23, 2012. Appellant’s opening brief is due February 22, 2012. The answering brief is due April 23, 2012. The reply brief is due within 21 days after service of the answering brief. Copies of this order shall be provided to Court Reporters Le Blanc and Kleeger. [8003639] (HH) [Entered: 12/16/2011 01:55 PM]

02/15/2012 7 Filed (ECF) Appellant Francis G Hernandez Motion to extend time to file Opening brief until 04/23/2012. 5 pg, 43.86 KB Date of service: 02/15/2012. [8070687] (Rocconi, Margo) [Entered: 02/15/2012 04:56 PM]

02/16/2012 8 Filed order MOATT: (ME) Appellant’s unopposed motion to extend the time to March 20, 2012 for the filing 1 pg, 23.47 KB of the reporter’s transcript for the proceedings of December 4, 2006 is granted. A copy of this order shall be provided to Supervising Court Reporter Blanca Aguilar. Appellant’s unopposed motion to extend the time to April 23, 2012 to file the opening brief is granted. The answering brief is due June 22, 2012. The reply brief is due within 21 days after service of the answering brief. [8072516] (PA) [Entered: 02/16/2012 04:34 PM]

04/16/2012 9 Filed (ECF) Appellant Francis G Hernandez Motion to extend time to file Opening brief until 06/22/2012. 5 pg, 43.03 KB Date of service: 04/14/2012. [8141860] (Rocconi, Margo) [Entered: 04/16/2012 03:34 PM]

04/17/2012 10 Filed order MOATT: (ME)Appellant’s unopposed motion to extend the time to June 22, 2012 to file the 1 pg, 22.7 KB opening brief is granted. The answering brief is due August 22, 2012. The reply brief is due within 21 days after service of the answering brief. [8143599] (PA) [Entered: 04/17/2012 03:41 PM]

06/15/2012 11 Filed (ECF) Appellant Francis G Hernandez Motion to extend time to file Opening brief until 07/23/2012. 5 pg, 43.04 KB Date of service: 06/15/2012. [8216791] (Rocconi, Margo) [Entered: 06/15/2012 04:04 PM]

06/20/2012 12 Filed (ECF) Appellant Francis G Hernandez Correspondence: Supplemental Declaration of Counsel Re 3 pg, 38.71 KB June 15, 2012 Motion to Extend the Time to File the Opening Brief. Date of service: 06/20/2012 [8221545] (Rocconi, Margo) [Entered: 06/20/2012 01:15 PM]

06/21/2012 13 ENTRY UPDATED. ORIGINAL TEXT: Oral extension by phone of time to file optional reply brief entered in error. 7/9/12.[8224024] [8224024]--[Edited 06/26/2012 by CG] (CG) [Entered: 06/21/2012 04:20 PM]

07/02/2012 14 Filed order (Appellate Commissioner) The appellant’s unopposed motion for a third extension of time in 1 pg, 23.25 KB which to file the opening brief is granted. The opening brief is due July 23, 2012; the answering brief is due August 22, 2012; and the optional reply brief is due within 14 days after service of the answering brief. (Pro Mo) [8235323] (MS) [Entered: 07/02/2012 04:00 PM]

07/16/2012 15 Filed (ECF) Appellant Francis G Hernandez Unopposed Motion to extend time to file Opening brief until 5 pg, 42.26 KB 09/21/2012. Date of service: 07/16/2012. [8251921] (Rocconi, Margo) [Entered: 07/16/2012 03:58 PM]

07/16/2012 16 Filed (ECF) notice of appearance of Tracy Casadio for Appellant Francis G Hernandez. Date of service: 3 pg, 33.09 KB 07/16/2012. [8252042] (Casadio, Tracy) [Entered: 07/16/2012 04:30 PM]

07/16/2012 17 Added attorney Tracy Casadio for Francis G Hernandez, in case 11-99013. [8252091] (EL) [Entered: 07/16/2012 04:48 PM]

07/23/2012 18 Filed order (Appellate Commissioner) The appellant’s unopposed motion for a fourth extension of time in 1 pg, 23.22 KB which to file the opening brief is granted. The opening brief is due September 21, 2012; the answering brief is due October 22, 2012; and the optional reply brief is due within 14 days after service of the answering brief. (Pro Mo) [8259780] (MS) [Entered: 07/23/2012 03:36 PM] https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 4/12

App. J - 274 9/25/2019 11-99013 Docket

09/21/2012 19 Submitted (ECF) Opening brief for review. Submitted by Appellant Francis G Hernandez. Date of service: 64 pg, 229.94 KB 09/21/2012. [8333654] (Casadio, Tracy) [Entered: 09/21/2012 05:08 PM]

09/24/2012 20 Filed clerk order: The opening brief [19] submitted by Francis G Hernandez is filed. Within 7 days of the 2 pg, 83.37 KB filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. [8333859] (WWP) [Entered: 09/24/2012 08:43 AM]

09/24/2012 22 Filed Appellant Francis G Hernandez excerpts of record in 5 volumes. Served on 09/21/2012. [8338274] (WWP) [Entered: 09/26/2012 01:24 PM]

09/24/2012 23 ENTRY DELETED [8338275] [Edited 11/02/2012 by WP] (WWP) [Entered: 09/26/2012 01:24 PM]

09/26/2012 21 Received 7 paper copies of Opening brief [19] filed by Francis G Hernandez. [8337965] (SD) [Entered: 09/26/2012 10:45 AM]

10/11/2012 24 Filed (ECF) Appellee Michael Martel Unopposed Motion to extend time to file Answering brief until 6 pg, 205.29 KB 12/21/2012 at 05:00 pm. Date of service: 10/11/2012. [8356800] (Lieberman, Gary) [Entered: 10/11/2012 02:38 PM]

10/17/2012 25 Filed order (Appellate Commissioner): The appellee’s unopposed motion for a 60-day extension of time in 1 pg, 22.8 KB which to file the answering brief is granted. The answering brief is due December 21, 2012. The optional reply brief is due within 14 days after service of the answering brief. (Pro Mo) [8365238] (MS) [Entered: 10/17/2012 03:12 PM]

12/14/2012 26 Filed (ECF) Appellee Michael Martel Unopposed Motion to extend time to file Answering brief until 6 pg, 234 KB 02/19/2013 at 05:00 pm. Date of service: 12/14/2012. [8438908] (Lieberman, Gary) [Entered: 12/14/2012 09:17 AM]

01/02/2013 27 Filed order (Appellate Commissioner): The appellee’s unopposed motion for a second extension of time in 1 pg, 22.98 KB which to file the answering brief is granted. The answering brief is due February 19, 2013. The optional reply brief is due within 14 days after service of the answering brief. (Pro Mo) [8457675] (MS) [Entered: 01/02/2013 10:44 AM]

02/12/2013 28 Filed (ECF) Appellee Michael Martel Unopposed Motion to extend time to file Answering brief until 5 pg, 229.37 KB 03/12/2013 at 05:00 pm. Date of service: 02/12/2013. [8510540] (Lieberman, Gary) [Entered: 02/12/2013 11:32 AM]

02/21/2013 29 Filed order (Appellate Commissioner): The appellee’s unopposed motion for a third extension of time in 1 pg, 23 KB which to file the answering brief is granted. The answering brief is due March 12, 2013. The optional reply brief is due within 14 days after service of the answering brief. (Pro Mo) [8522342] (MS) [Entered: 02/21/2013 04:07 PM]

03/05/2013 30 Filed (ECF) Appellee Michael Martel Unopposed Motion to extend time to file Answering brief until 5 pg, 226.1 KB 04/02/2013 at 05:00 pm. Date of service: 03/05/2013. [8537811] (Lieberman, Gary) [Entered: 03/05/2013 02:46 PM]

03/06/2013 31 Filed order (Appellate Commissioner): The appellee’s unopposed motion for a fourth extension of time in 1 pg, 22.98 KB which to file the answering brief is granted. The answering brief is due April 2, 2013. The optional reply brief is due within 14 days after service of the answering brief. (Pro Mo) [8539495] (MS) [Entered: 03/06/2013 02:20 PM]

04/02/2013 32 Submitted (ECF) Answering Brief and supplemental excerpts of record for review. Submitted by Appellee 123 pg, 3.85 MB Michael Martel. Date of service: 04/02/2013. [8574090] (Lieberman, Gary) [Entered: 04/02/2013 01:41 PM]

04/03/2013 33 Filed clerk order: The answering brief [32] submitted by Michael Martel is filed. Within 7 days of the filing 2 pg, 86.34 KB of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: red. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [32] submitted by Michael Martel. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [8575427] (WWP) [Entered: 04/03/2013 11:43 AM]

04/04/2013 34 Filed Appellee Michael Martel paper copies of excerpts of record [32] in 1 volume(s). [8577581] (WWP) [Entered: 04/04/2013 02:35 PM]

04/04/2013 35 Received 7 paper copies of Answering brief [32] filed by Michael Martel. [8577733] (SD) [Entered: 04/04/2013 03:13 PM]

04/09/2013 36 Filed (ECF) Appellant Francis G Hernandez Motion to extend time to file Reply brief until 05/16/2013. 5 pg, 46.55 KB Date of service: 04/09/2013. [8583907]--[COURT UPDATE: Edited docket text to reflect correct relief. https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 5/12

App. J - 275 9/25/2019 11-99013 Docket Resent NDA. 04/10/2013 by RY] (Casadio, Tracy) [Entered: 04/09/2013 05:35 PM]

04/10/2013 37 Filed clerk order (Deputy Clerk: cag):Granting Motion (ECF Filing) motion to extend time to file brief filed 1 pg, 81.23 KB by Appellant Francis G Hernandez. The optional reply brief is due 5/16/13. [8584943] (CG) [Entered: 04/10/2013 01:45 PM]

05/10/2013 38 Filed (ECF) Appellant Francis G Hernandez Unopposed Motion to extend time to file Reply brief until 5 pg, 47.94 KB 06/14/2013. Date of service: 05/10/2013. [8624678] (Rocconi, Margo) [Entered: 05/10/2013 12:56 PM]

05/14/2013 39 Filed order (Appellate Commissioner): The appellant's motion for a second extension of time to file the 1 pg, 23.04 KB reply brief is granted. The reply brief is due June 14, 2013. (Pro Mo) [8629192] (GS) [Entered: 05/14/2013 05:09 PM]

06/14/2013 40 Submitted (ECF) Reply Brief for review. Submitted by Appellant Francis G Hernandez. Date of service: 26 pg, 114.52 KB 06/14/2013. [8668233] (Rocconi, Margo) [Entered: 06/14/2013 12:59 PM]

06/14/2013 41 Submitted (ECF) supplemental excerpts of record. Submitted by Appellant Francis G Hernandez. Date of 21 pg, 842.7 KB service: 06/14/2013. [8668242] (Rocconi, Margo) [Entered: 06/14/2013 01:04 PM]

06/14/2013 42 Filed clerk order: The reply brief [40] submitted by Francis G Hernandez is filed. Within 7 days of the filing 2 pg, 86.59 KB of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: gray. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [41] submitted by Francis G Hernandez. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [8668364] (WWP) [Entered: 06/14/2013 01:53 PM]

06/19/2013 43 Filed Appellant Francis G Hernandez paper copies of excerpts of record [41] in 1 volume(s). [8673502] (WWP) [Entered: 06/19/2013 11:09 AM]

06/19/2013 44 Received 7 paper copies of Reply brief [40] filed by Francis G Hernandez. [8675024] (SD) [Entered: 06/20/2013 10:16 AM]

01/17/2014 45 Filed clerk order (Deputy Clerk: MD): By February 26, 2014, Respondent shall file a supplemental brief, 1 pg, 39.11 KB not to exceed 9800 words, addressing the uncertified issues raised in the opening brief. See AOB at 20- 52. Appellant’s supplemental reply brief, not to exceed 7000 words, is due March 19, 2014. The parties’ supplemental briefs should address the relevance, if any, of intervening decisions. The Court will decide whether to issue a certificate of appealability after considering the additional briefing. [8943341] (PA) [Entered: 01/17/2014 12:30 PM]

01/30/2014 46 Filed (ECF) Appellee Michael Martel Motion for miscellaneous relief [Motion for Postponement of Oral 7 pg, 141.77 KB Argument Date]. Date of service: 01/30/2014. [8959228] (Lieberman, Gary) [Entered: 01/30/2014 11:22 AM]

01/30/2014 47 Sent Notice requesting electronic excerpts in 14 days. [8960186] (SOS) [Entered: 01/30/2014 04:14 PM] 1 pg, 85.19 KB

02/04/2014 48 Filed clerk order (Deputy Clerk: AF): Appellee’s Motion for Postponement of Oral Argument Date is 1 pg, 32.9 KB hereby GRANTED. This case is removed from the May 15, 2014, Pasadena calendar. The clerk will advise the parties when a new date for oral argument has been set. [8964537] (AF) [Entered: 02/04/2014 09:37 AM]

02/04/2014 49 Appellee Michael Martel in 11-99013 substituted by Appellee Kevin Chappell. [8964722] (HH) [Entered: 02/04/2014 10:20 AM]

02/04/2014 50 Submitted (ECF) excerpts of record. Submitted by Appellant Francis G Hernandez. Date of service: 1257 pg, 38.65 MB 09/21/2012. [8965968] (Casadio, Tracy) [Entered: 02/04/2014 04:23 PM]

02/18/2014 51 Filed (ECF) Appellee Kevin Chappell Unopposed Motion to file supplemental brief. Date of service: 7 pg, 145.98 KB 02/18/2014. [8982132] (Lieberman, Gary) [Entered: 02/18/2014 03:35 PM]

02/19/2014 52 Filed clerk order (Deputy Clerk: BJB): Respondent’s unopposed motion for an extension of time in which 1 pg, 33.29 KB to file a supplemental brief is GRANTED. The deadline for filing Respondent’s supplemental brief is extended to the end of Monday, April 14, 2014. [8984267] (BJB) [Entered: 02/19/2014 04:42 PM]

04/07/2014 53 Filed (ECF) Appellee Kevin Chappell Unopposed Motion to file supplemental brief. Date of service: 6 pg, 149.18 KB 04/07/2014. [9047654] (Lieberman, Gary) [Entered: 04/07/2014 03:43 PM]

04/09/2014 54 Filed clerk order (Deputy Clerk: AF): Respondent’s unopposed motion for a second extension of time in 1 pg, 33.08 KB which to file a supplemental brief is GRANTED. The deadline for filing Respondent’s supplemental brief is extended to the end of Wednesday, May 14, 2014. [9051834] (AF) [Entered: 04/09/2014 02:42 PM]

04/25/2014 55 Filed (ECF) Appellee Kevin Chappell Unopposed Motion to file oversized brief. Date of service: 6 pg, 127.44 KB 04/25/2014. [9073379]--[COURT UPDATE: Removed brief and ER, see [56] 04/28/2014 by ASW] (Lieberman, Gary) [Entered: 04/25/2014 04:08 PM] https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 6/12

App. J - 276 9/25/2019 11-99013 Docket

04/25/2014 56 Submitted (ECF) Supplemental Brief and supplemental excerpts of record for review. Submitted by 140 pg, 3.59 MB Appellee Kevin Chappell. Date of service: 04/25/2014. [COURT-ENTERED FILING, extracted PDFs from [55].] [9074107] (ASW) [Entered: 04/28/2014 10:57 AM]

04/28/2014 57 Filed Appellee Kevin Chappell unoppsed motion to file UNDER SEAL volume one of second 13 pg, 560.31 KB supplemental excerpts. Deficiencies: None. Served on 04/25/2014. [9074938] (WWP) [Entered: 04/28/2014 03:13 PM]

04/28/2014 58 Received ( UNDER SEAL ) Appellee Kevin Chappell second supplemental excerpts of record in 1 volume. Served on 04/25/2014. Deficiencies: motion pending. [9074977] (sent to PANEL) (WWP) [Entered: 04/28/2014 03:21 PM]

04/30/2014 59 Filed clerk order (Deputy Clerk: AF): Respondent’s motions to file an oversized brief and to file under seal 1 pg, 32.9 KB volume one of the second supplemental excerpts of record are GRANTED. [9077705] (AF) [Entered: 04/30/2014 10:19 AM]

04/30/2014 60 Filed clerk order: The supplemental brief [56] submitted by Kevin Chappell is filed. Within 7 days of the 2 pg, 86.87 KB filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: tan. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [56] submitted by Kevin Chappell. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [9078350] (WWP) [Entered: 04/30/2014 02:42 PM]

04/30/2014 61 Filed ( UNDER SEAL ) Appellee Kevin Chappell paper copies of excerpts of record volume 1 of 2 (sent to panel). [9078366] (WWP) [Entered: 04/30/2014 02:45 PM]

05/06/2014 62 Received 7 paper copies of Supplemental brief [56] filed by Kevin Chappell. (sent to panel) [9084616] (SD) [Entered: 05/06/2014 11:05 AM]

05/06/2014 63 Filed Appellee Kevin Chappell paper copies of excerpts of record [56] in 1 volume. Volume 2 of 2. (sent to panel) [9085144] (WWP) [Entered: 05/06/2014 02:22 PM]

05/14/2014 64 Filed (ECF) Appellant Francis G Hernandez Unopposed Motion to extend time to file Supplemental brief 6 pg, 16.55 KB until 06/20/2014. Date of service: 05/14/2014. [9095446] (Casadio, Tracy) [Entered: 05/14/2014 01:29 PM]

05/14/2014 65 Filed clerk order (Deputy Clerk: AF): Petitioner’s motion for an extension of time to file the supplemental 1 pg, 32.67 KB reply brief is GRANTED. The reply brief is due June 20, 2014. [9096219] (AF) [Entered: 05/14/2014 04:28 PM]

06/18/2014 66 Submitted (ECF) Reply Brief and supplemental excerpts of record for review. Submitted by Appellant 65 pg, 1.66 MB Francis G Hernandez. Date of service: 06/18/2014. [9137887] (Casadio, Tracy) [Entered: 06/18/2014 04:18 PM]

06/19/2014 67 Filed clerk order: The reply brief [66] submitted by Francis G Hernandez is filed. Within 7 days of the filing 2 pg, 87.09 KB of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: gray. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [66] submitted by Francis G Hernandez. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [9138071] (WWP) [Entered: 06/19/2014 07:26 AM]

06/23/2014 68 Received 7 paper copies of Reply brief [66] filed by Francis G Hernandez (sent to panel). [9142050] (DB) [Entered: 06/23/2014 01:42 PM]

06/23/2014 69 Filed Appellant Francis G Hernandez paper copies of excerpts of record [66] in 1 volume. (sent to panel) [9142112] (WWP) [Entered: 06/23/2014 01:58 PM]

06/23/2014 70 Filed Appellant Francis G Hernandez motion to file UNDER SEAL volume 2 of appellant's second 11 pg, 991.25 KB supplemental excerpts of record. Served on 06/18/2014. [9142216] (WWP) [Entered: 06/23/2014 02:33 PM]

06/23/2014 71 Received ( UNDER SEAL ) Appellant Francis G Hernandez volume 2 of the excerpts of record. Deficiencies: motion to file under seal pending. (sent to panel) [9142274] (WWP) [Entered: 06/23/2014 02:52 PM]

06/23/2014 72 Filed (ECF) Errata to Reply brief ([66] Brief Submitted for Review (ECF Filing) ). Filed by Appellant 3 pg, 17.33 KB Francis G Hernandez. Date of service: 06/23/2014. [9142416] (Casadio, Tracy) [Entered: 06/23/2014 03:31 PM]

09/29/2014 73 Filed clerk order (Deputy Clerk: AF): Oral argument is rescheduled to Wednesday, January 21, 2015, at 1 pg, 33.36 KB 10:00 a.m., in Courtroom 1 of the Richard H. Chambers U.S. Court of Appeals Building in Pasadena, https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 7/12

App. J - 277 9/25/2019 11-99013 Docket California. Each side will be allotted thirty (30) minutes to present its arguments. [9258211] (AF) [Entered: 09/29/2014 04:01 PM]

11/18/2014 74 Notice of Oral Argument on Wednesday, January 21, 2015 - 10:00 A.M. - Courtroom 1 - Pasadena, CA. View the Oral Argument Calendar for your case here.

When you have reviewed the calendar, download the ACKNOWLEDGMENT OF HEARING NOTICE form, complete the form, and file it via Appellate ECF or return the completed form to: PASADENA Office. [9317238] (AW) [Entered: 11/18/2014 12:37 PM]

11/18/2014 75 Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Tracy Casadio, 1 pg, 19.04 KB Esquire for Appellant Francis G Hernandez. [9317673] [11-99013] (Casadio, Tracy) [Entered: 11/18/2014 03:11 PM]

11/19/2014 76 Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Gary Lieberman 2 pg, 92.14 KB for Appellee Kevin Chappell. [9318908] [11-99013] (Lieberman, Gary) [Entered: 11/19/2014 01:25 PM]

01/21/2015 77 ARGUED AND SUBMITTED TO HARRY PREGERSON, STEPHEN R. REINHARDT and JACQUELINE H. NGUYEN. [9389810] (LN) [Entered: 01/21/2015 11:53 AM]

01/21/2015 78 Terminated Sean Kevin Kennedy for Francis G Hernandez in 11-99013 (no longer with FPD) [9389865] (RY) [Entered: 01/21/2015 12:19 PM]

01/21/2015 79 Filed order (HARRY PREGERSON, STEPHEN R. REINHARDT and JACQUELINE H. NGUYEN): The 1 pg, 32.74 KB case is referred to the Circuit Mediation Office of this court for mediation, and its submission is deferred pending further order of the court. The Circuit Mediator will contact the parties to schedule mediation and shall provide a status report to the panel within sixty (60) days following this order. [9390488] (AF) [Entered: 01/21/2015 03:30 PM]

01/27/2015 80 Filed order MEDIATION (BS): Pursuant to this court's order, this immigration petition has been referred to 5 pg, 83.49 KB the Mediation Program. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. The court has scheduled a telephone conference, with counsel only, on the date and time indicated above. (Date: March 5, 2015 Time: 2:00 p.m. Pacific Time) (SEE ORDER FOR FULL TEXT) [9397186] (AF) [Entered: 01/27/2015 10:49 AM]

02/02/2015 81 Filed order MEDIATION (BS): This order supersedes the court’s order of January 27, 2015. Pursuant to 5 pg, 83.34 KB this court's order, this appeal has been referred to the Mediation Program. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. The court has scheduled a telephone conference, with counsel only, on the date and time indicated above. (Date: March 5, 2015 Time: 2:00 p.m. Pacific Time) (SEE ORDER FOR FULL TEXT) [9404360] (AF) [Entered: 02/02/2015 09:39 AM]

04/16/2015 82 Filed order MEDIATION (CLB): The court will initiate a further conference by telephone on April 28, 2015, 1 pg, 39.07 KB at 10:00 a.m. Pacific Time. [9497728] (AF) [Entered: 04/16/2015 09:05 AM]

04/28/2015 83 MEDIATION CONFERENCE SCHEDULED - Further Conference, 05/26/2015, 10:00 a.m. Pacific Time. 1 pg, 189.47 KB [9517124] (MS) [Entered: 04/28/2015 11:21 AM]

05/21/2015 84 MEDIATION CONFERENCE RESCHEDULED - Further Conference, 05/27/2015, at 10:00 a.m. Pacific 1 pg, 189.01 KB Time. (originally scheduled on 05/26/2015 ). [9545554] (BLS) [Entered: 05/21/2015 09:36 AM] 06/02/2015 Filed order MEDIATION (CLB): A dial-in telephonic conference will be held on June 29, 2015, at 10:30 85 1 pg, 43.11 KB a.m. Pacific Time. Dial-in information is available to counsel of record as a separate document attached to the electronic filing notification of this order. If any counsel of record is not able to access the dial-in information, please notify the Mediation Program immediately at [email protected]. [9558114] (OC) [Entered: 06/02/2015 10:13 AM]

06/30/2015 86 Filed order MEDIATION (CLB): At the request of counsel, the dial-in telephonic conference scheduled for 1 pg, 42.31 KB June 29, 2015, is rescheduled to August 3, 2015, at 2:00 p.m. Pacific Time. The dial-in information previously provided to counsel remains the same. [9594488] (AF) [Entered: 06/30/2015 03:34 PM]

08/04/2015 87 Filed order MEDIATION (CLB): schedule a further pre-briefing telephone conference on 09/02/2015 1 pg, 39.15 KB (Pacific Standard Time) [9634272] (AF) [Entered: 08/04/2015 01:45 PM]

08/14/2015 88 Copy of letter received from Appellant Francis G Hernandez re: conflict of interest with FPD counsel. 1 pg, 71.09 KB [9648844] (KB) [Entered: 08/17/2015 09:56 AM]

09/03/2015 89 MEDIATION CONFERENCE SCHEDULED - Further Conference, 10/19/2015, 2:00 p.m. Pacific Time. 1 pg, 189.48 KB [9671366] (BLS) [Entered: 09/03/2015 12:45 PM]

10/21/2015 90 MEDIATION CONFERENCE SCHEDULED - Further Conference, 11/30/2015, 2:00 p.m. Pacific Time. 1 pg, 189.6 KB [9726340] (BLS) [Entered: 10/21/2015 10:01 AM]

12/01/2015 91 MEDIATION CONFERENCE SCHEDULED - Further Conference, 01/11/2016, 2:00 p.m. Pacific Time. 1 pg, 189.96 KB See order for detais. [9775877] (BLS) [Entered: 12/01/2015 04:15 PM] https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 8/12

App. J - 278 9/25/2019 11-99013 Docket 01/12/2016 Filed UNDER SEAL confidential declaration from counsel for appellant. [9885863] (ASW) [Entered: 93 0 pg, 0 KB 03/02/2016 09:30 AM]

02/03/2016 92 Filed order (HARRY PREGERSON, STEPHEN REINHARDT and JACQUELINE H. NGUYEN): On 1 pg, 33.62 KB January 21, 2015 we referred this petition for habeas corpus to the court’s mediation office. On August 14, 2015, petitioner Francs Hernandez submitted to the court a letter purporting to indicate a conflict of interest with his attorneys. On January 12, 2016, Mr. Hernandez’ counsel, Margo Ronconi, submitted to the panel a confidential declaration under penalty of perjury. We find that petitioner’s letter of August 14, 2015, is inapplicable to Ms. Ronconi’s and Ms. Casadio’s representation of petitioner in the court’s mediation proceedings. [9853333] (AF) [Entered: 02/03/2016 03:46 PM]

03/16/2016 94 MEDIATION CONFERENCE SCHEDULED - Further Conference, 04/13/2016, 2:00 p.m. Pacific Time. 1 pg, 189.02 KB See order for details. [9903347] (BLS) [Entered: 03/16/2016 08:59 AM]

04/13/2016 95 MEDIATION CONFERENCE RESCHEDULED - Further Conference, 05/09/2016, 2:00 p.m. Pacific Time. 1 pg, 188.31 KB (originally scheduled on 04/13/2016 ). [9938749] (BLS) [Entered: 04/13/2016 03:08 PM]

05/10/2016 96 MEDIATION CONFERENCE SCHEDULED - Further Conference, 06/06/2016, 2:00 p.m. Pacific Time. 1 pg, 189.51 KB See order for details. [9972003] (BLS) [Entered: 05/10/2016 04:14 PM]

06/07/2016 97 MEDIATION CONFERENCE SCHEDULED - Further Conference, 07/25/2016, 2:00 p.m. Pacific Time. 1 pg, 190.18 KB See order for details. [10005574] (BLS) [Entered: 06/07/2016 03:08 PM]

07/29/2016 98 MEDIATION CONFERENCE SCHEDULED - Dial-In Further Conference, 08/31/2016, 11:00 a.m. Pacific 1 pg, 200.86 KB Time. See order for details. [10068722] (MS) [Entered: 07/29/2016 12:35 PM]

08/10/2016 99 Filed (ECF) notice of appearance of James William Bilderback II for Appellee Kevin Chappell. Date of 2 pg, 79.7 KB service: 08/10/2016. [10083289] [11-99013] (Bilderback, James) [Entered: 08/10/2016 04:36 PM]

08/10/2016 100 Added attorney James William Bilderback II for Kevin Chappell. [10083318] (RL) [Entered: 08/10/2016 04:44 PM]

08/31/2016 101 MEDIATION CONFERENCE SCHEDULED - Dial-In Conference, 09/30/2016, 3:00 p.m. Pacific Time. See 1 pg, 200.02 KB order for details. [10108386] (MS) [Entered: 08/31/2016 01:21 PM]

10/06/2016 102 MEDIATION CONFERENCE SCHEDULED - DIAL-IN, 11/28/2016, 2:00 p.m. Pacific Time. See order for 1 pg, 199.52 KB details. [10152046] (BLS) [Entered: 10/06/2016 03:34 PM]

11/30/2016 103 MEDIATION CONFERENCE SCHEDULED - DIAL-IN Conference, 01/23/2017, 2:00 p.m. Pacific Time. 1 pg, 200.9 KB See order for details. [10216199] (MS) [Entered: 11/30/2016 03:49 PM]

01/24/2017 104 MEDIATION CONFERENCE SCHEDULED - DIAL-IN Conference, 01/31/2017, 09:30 a.m. Pacific Time. 1 pg, 200.78 KB See order for details. [10277790] (MS) [Entered: 01/24/2017 01:57 PM]

01/27/2017 105 MEDIATION CONFERENCE Canceled. (originally scheduled on 01/31/2017 ). [10288941] (MS) [Entered: 1 pg, 182.25 KB 01/27/2017 04:59 PM]

03/13/2017 106 Filed Mediation order: Mediation efforts having terminated, this matter is returned to the panel. [10353266] 1 pg, 181.74 KB (BLS) [Entered: 03/13/2017 10:27 AM]

12/29/2017 107 Filed order (HARRY PREGERSON, STEPHEN REINHARDT and JACQUELINE H. NGUYEN) Petitioner- 1 pg, 31.87 KB Appellant Francis Hernandez’s motion to file under seal volume two of his second supplemental excerpts of record is GRANTED. [10707119] (RMM) [Entered: 12/29/2017 06:38 AM]

12/29/2017 108 FILED OPINION (HARRY PREGERSON, STEPHEN REINHARDT and JACQUELINE H. NGUYEN) We 51 pg, 258.46 KB reverse the district court’s denial of a writ of habeas corpus as to Hernandez’s guilt phase claims relating to first degree murder, vacate Hernandez’s convictions on those counts, and remand with instructions to grant the petition for a writ of habeas corpus unless the state conducts a new trial on those charges within a reasonable period of time. Judge: SR Authoring, Judge: JHN Concurring & dissenting. FILED AND ENTERED JUDGMENT. [10707120] (RMM) [Entered: 12/29/2017 06:46 AM]

12/29/2017 109 Filed UNDER SEAL Appellant Francis G Hernandez Volume 2 of second supplemental excerpts of record. Served on 06/18/2014. [10707942] (LA) [Entered: 12/29/2017 01:48 PM]

01/09/2018 110 Filed (ECF) Appellee Kevin Chappell Unopposed Motion to extend time to file petition for rehearing until 5 pg, 31.4 KB 02/12/2018. Date of service: 01/09/2018. [10718919] [11-99013] (Lieberman, Gary) [Entered: 01/09/2018 04:05 PM]

01/10/2018 111 Filed order (STEPHEN REINHARDT and JACQUELINE H. NGUYEN): Respondent-Appellee’s 1 pg, 32.21 KB unopposed motion for an extension of time to file a petition for rehearing and/or rehearing en banc is GRANTED. Any petition shall be filed on or before February 12, 2018. [10719816] (AF) [Entered: 01/10/2018 11:27 AM]

02/02/2018 112 Filed (ECF) Appellee Kevin Chappell petition for panel rehearing and petition for rehearing en banc (from 64 pg, 12.63 MB 12/29/2017 opinion). Date of service: 02/02/2018. [10749740] [11-99013] (Lieberman, Gary) [Entered: 02/02/2018 01:46 PM] https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 9/12

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02/09/2018 113 COURT DELETED INCORRECT ENTRY. Entered in wrong case. Meant for case 17-17478. Notice about deletion sent to case participants registered for electronic filing. Original Text: Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Criminal Justice Legal Foundation. Date of service: 02/09/2018. [10758597] [11-99013] (Scheidegger, Kent) [Entered: 02/09/2018 03:34 PM]

02/09/2018 114 Entered appearance of Amicus Curiae - Pending Criminal Justice Legal Foundation (CJLF). [10758717] (GV) [Entered: 02/09/2018 04:07 PM]

02/09/2018 115 Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by 17 pg, 146.81 KB Criminal Justice Legal Foundation. Date of service: 02/09/2018. [10758763] [11-99013]--[COURT UPDATE: Attached corrected pdf files. 02/12/2018 by LA] (Scheidegger, Kent) [Entered: 02/09/2018 04:19 PM]

02/16/2018 116 Filed clerk order (Deputy Clerk: OC): Pursuant to G.O. § 3.2.h, Judge Wardlaw has been drawn as the 1 pg, 194.11 KB replacement for Judge Pregerson. The panel for this case will now consist of Circuit Judges REINHARDT, WARDLAW and NGUYEN. [10766628] (OC) [Entered: 02/16/2018 08:57 AM]

02/16/2018 117 Filed order (STEPHEN REINHARDT, KIM MCLANE WARDLAW and JACQUELINE H. NGUYEN) 1 pg, 33.21 KB Petitioner-Appellant shall file a response to Respondent-Appellee’s petition for rehearing and/or rehearing en banc. The response shall not exceed 15 pages or 4200 words and shall be filed within 21 days of the date of this order. Parties who are registered for ECF must file the response electronically without submission of paper copies. Parties who are not registered ECF filers must file the original response plus 50 paper copies. [10767833] (OC) [Entered: 02/16/2018 02:42 PM]

03/02/2018 118 Filed (ECF) Appellant Francis G Hernandez Unopposed Motion to extend time to file a response until 6 pg, 98.83 KB 04/23/2018. Date of service: 03/02/2018. [10784948] [11-99013] (Casadio, Tracy) [Entered: 03/02/2018 05:09 PM]

03/07/2018 119 Filed order (STEPHEN REINHARDT, KIM MCLANE WARDLAW and JACQUELINE H. NGUYEN): 1 pg, 31.91 KB Petitioner-Appellant’s unopposed motion for an extension of time to file his response to the petition for rehearing and/or rehearing en banc is GRANTED. The response shall be filed on or before April 23, 2018. [10790025] (AF) [Entered: 03/07/2018 02:43 PM]

04/03/2018 120 Filed clerk order (Deputy Clerk: AF): Pursuant to G.O. § 3.2.h, Judge M. Smith has been drawn as the 1 pg, 193.42 KB replacement for Judge Reinhardt. The panel for this case will now consist of Circuit Judges WARDLAW, M. SMITH and NGUYEN. [10822735] (AF) [Entered: 04/03/2018 01:25 PM]

04/13/2018 121 Filed (ECF) Appellant Francis G Hernandez Unopposed Motion to extend time to file a response until 6 pg, 98.94 KB 05/07/2018. Date of service: 04/13/2018. [10836452] [11-99013] (Casadio, Tracy) [Entered: 04/13/2018 01:46 PM]

04/20/2018 122 Filed order (KIM MCLANE WARDLAW, MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN): 1 pg, 191.93 KB Petitioner-Appellant’s unopposed motion for a second extension of time to file his response to the petition for rehearing and/or rehearing en banc is GRANTED. The response shall be filed on or before May 7, 2018. [10844029] (AF) [Entered: 04/20/2018 08:54 AM]

04/30/2018 123 Filed order (KIM MCLANE WARDLAW, MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN): The 1 pg, 191.39 KB Criminal Justice Legal Foundation’s motion for leave to file a brief amicus curiae in support of the petition for panel rehearing (ECF No. [115]) is GRANTED. [10855263] (AF) [Entered: 04/30/2018 11:48 AM]

04/30/2018 124 Filed clerk order: The amicus brief [115] submitted by CJLF is filed. Within 7 days of the filing of this order, 2 pg, 188.25 KB filer is ordered to file 20 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: green. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate CM/ECF. [10855798] (KWG) [Entered: 04/30/2018 02:56 PM]

05/03/2018 125 Received 20 paper copies of Amicus Brief [115] filed by CJLF. [10860600] (KWG) [Entered: 05/03/2018 01:03 PM]

05/07/2018 126 Filed (ECF) Appellant Francis G Hernandez response to Combo PFR Panel and En Banc (ECF Filing), 27 pg, 322 KB Combo PFR Panel and En Banc (ECF Filing) for panel and en banc rehearing, for panel and en banc rehearing (statistical entry). Date of service: 05/07/2018. [10864563]. [11-99013] (Casadio, Tracy) [Entered: 05/07/2018 04:55 PM]

05/09/2018 127 Filed (ECF) Appellee Kevin Chappell Motion for miscellaneous relief [Motion for Leave to File Reply to 8 pg, 17.99 KB Response to Petition for Rehearing]. Date of service: 05/09/2018. [10867482] [11-99013] --[COURT UPDATE: Updated docket text to reflect content of filing. 5/10/2018 by TYL] (Lieberman, Gary) [Entered: 05/09/2018 03:52 PM]

05/21/2018 128 Filed order (KIM MCLANE WARDLAW, MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN): 1 pg, 196.53 KB Appellee’s petition for rehearing before a three-judge panel is GRANTED.1 Oral argument will take place during the week of September 24, 2018, in Pasadena, California. The date and time will be determined by separate order. For further information or special requests regarding scheduling, please contact Calendar https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom 10/12

App. J - 280 9/25/2019 11-99013 Docket Unit Supervisor Arden Wong at [email protected] or (415) 355-8191. [10880412] (AF) [Entered: 05/21/2018 03:48 PM]

06/26/2018 129 Filed clerk order (Deputy Clerk: AF): The court will hear oral argument at 10:00 a.m. on Monday, 1 pg, 194.09 KB September 24, 2018, in Courtroom 1 of the Richard Chambers Courthouse, located at 125 South Grant Avenue, in Pasadena, California 91105. http://www.ca9.uscourts.gov/information/locations.php [10921926] (AF) [Entered: 06/26/2018 09:18 AM]

07/16/2018 130 Notice of Oral Argument on Monday, September 24, 2018 - 10:00 A.M. - Courtroom 1 - Pasadena CA. View the Oral Argument Calendar for your case here.

Be sure to review the GUIDELINES for important information about your hearing, including when to arrive (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in advance of the hearing as possible).

When you have reviewed the calendar, download the ACKNOWLEDGMENT OF HEARING NOTICE form and within 21 days of Monday, September 24, 2018, file the completed form via Appellate CM/ECF or return the completed form to: PASADENA Office. [10943153] (AKM) [Entered: 07/16/2018 10:07 AM]

07/16/2018 131 Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Tracy Casadio, 1 pg, 50.06 KB Esquire for Appellant Francis G Hernandez. [10943549] [11-99013] (Casadio, Tracy) [Entered: 07/16/2018 12:31 PM]

07/17/2018 132 Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Gary Lieberman 2 pg, 501.45 KB for Appellee Kevin Chappell. [10944591] [11-99013] (Lieberman, Gary) [Entered: 07/17/2018 08:43 AM]

09/24/2018 133 ARGUED AND SUBMITTED TO KIM MCLANE WARDLAW, MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN. [11022529] (BG) [Entered: 09/24/2018 11:24 AM]

09/24/2018 134 Filed Audio recording of oral argument. 1 pg, 13.13 MB Note: Video recordings of public argument calendars are available on the Court's website, at http://www.ca9.uscourts.gov/media/ [11023245] (BG) [Entered: 09/24/2018 03:27 PM]

01/14/2019 135 FILED ORDER AND OPINION (KIM MCLANE WARDLAW, MILAN D. SMITH, JR. and JACQUELINE H. 31 pg, 205.39 KB NGUYEN) The prior opinion in this case, found at Hernandez v. Chappell, 878 F.3d 843 (9th Cir. 2017), is hereby withdrawn. A new opinion is being filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed. AFFIRMED. Judge: JHN Authoring. FILED AND ENTERED JUDGMENT. [11151048] (RMM) [Entered: 01/14/2019 07:28 AM]

01/22/2019 136 Filed (ECF) Appellant Francis G Hernandez Unopposed Motion to extend time to file petition for rehearing 6 pg, 100.02 KB until 03/29/2019. Date of service: 01/22/2019. [11160813] [11-99013] (Casadio, Tracy) [Entered: 01/22/2019 10:28 AM]

01/23/2019 137 Filed order (KIM MCLANE WARDLAW, MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN) Petitioner- 1 pg, 263.37 KB Appellant’s Unopposed Motion to Extend the Time to File the Petition for Rehearing (Dkt. No. [136]) is GRANTED. [11162789] (WL) [Entered: 01/23/2019 09:33 AM]

03/29/2019 138 Filed (ECF) Appellant Francis G Hernandez petition for panel rehearing and petition for rehearing en banc 48 pg, 295.83 KB (from 01/14/2019 opinion). Date of service: 03/29/2019. [11246789] [11-99013] (Casadio, Tracy) [Entered: 03/29/2019 01:29 PM]

05/03/2019 139 Filed order and amended opinion (KIM MCLANE WARDLAW, MILAN D. SMITH, JR. and JACQUELINE 27 pg, 97.39 KB H. NGUYEN). Amending Disposition Order and Opinion AFFIRMED;The opinion filed on January 14, 2019, is amended as follows: on slip opinion page 13, delete the following text: A defendant faces a higher burden of showing prejudice at the guilt phase than at the penalty phase. See Raley v. Ylst, 470 F.3d 792, 802 (9th Cir. 2006) (“The bar for establishing prejudice is set lower in death penalty sentencing cases than in guilt-phase challenges and noncapital cases.”). The petitions for rehearing and rehearing en banc are otherwise DENIED, no further petitions for rehearing will be accepted. The panel has voted to deny the petition for panel rehearing and to deny the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. [11285481] (RMM) [Entered: 05/03/2019 07:17 AM]

05/13/2019 140 MANDATE ISSUED.(KMW, MDS and JHN) [11295101] (QDL) [Entered: 05/13/2019 01:04 PM] 1 pg, 92.89 KB

07/22/2019 141 Received letter from the Supreme Court dated 07/19/2019. The application for an extension of time within 2 pg, 14.88 KB which to file a petition for a writ of certiorari in the above-entitled case has been presented to Justice Kagan, who on July 19, 2019, extended the time to and including September 30, 2019. [11375856] (RR) [Entered: 07/24/2019 05:13 PM]

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App. J - 282 9/26/2019 CM/ECF - California Central District CLOSED,STAYED

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles) CIVIL DOCKET FOR CASE #: 2:90-cv-04638-RSWL

Hernandez, et al v. Jill Brown, et al Date Filed: 08/28/1990 Assigned to: Judge Ronald S.W. Lew Date Terminated: 08/16/2011 Demand: $0 Jury Demand: None Related Case: 2:12-cv-06293-RSWL Nature of Suit: 535 Death Penalty - Habeas Case in other court: 9th CCA, 11-99013 Corpus Cause: 28:2254 Ptn for Writ of H/C - Stay of Execution Jurisdiction: Federal Question Petitioner Francis G Hernandez represented by Margo A Rocconi Federal Public Defenders Office 321 East 2nd Street Los Angeles, CA 90012-4202 213 894 7521 Fax: 213-894-0081 Email Margo Rocconi@fd org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean K Kennedy Federal Public Defenders Office 321 East 2nd Street Los Angeles, CA 90012-4202 213 894 2854 Fax: 213-894-0081 Email [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

V Defendant Arthur Calderon represented by Edward M Medvene Warden of California State Prison at San Edward M Medvene Law Offices Quentin 80 Virginia Lane also known as Santa Barbara, CA 93108 Jeanne Woodford 805-497-2788 LEAD ATTORNEY

Gail R Weinheimer Gail R Weinheimer Law Offices 862 Sir Francis Drake Blvd Suite 245 San Anselmo, CA 94960 1914 415-488-4876 https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 1/46

App. K - 283 9/26/2019 CM/ECF - California Central District Email: [email protected] ATTORNEY TO BE NOTICED

Ronald A DiNicola Mitchell Silberberg and Knupp 11377 W Olympic Blvd Los Angeles, CA 90064-1683 310-312-2000 ATTORNEY TO BE NOTICED

V. Respondent Jill Brown represented by Edward M Medvene Warden California State Prison at San (See above for address) Quentin Gail R Weinheimer (See above for address) ATTORNEY TO BE NOTICED

Ronald A DiNicola (See above for address) ATTORNEY TO BE NOTICED

Respondent Robert Ayers, Jr represented by Gary A Lieberman CAAG - Office of Attorney General of California California Department of Justice 300 South Spring Street Suite 1702 Los Angeles, CA 90013 213-269-6010 Fax: 916-731-2122 Email: [email protected] ATTORNEY TO BE NOTICED

Date Filed # Docket Text 08/28/1990 1 PETITION FOR WRIT OF HABEAS CORPUS by petitioner Francis G Hernandez in state custody. (mco) (Entered: 01/19/1994) 03/18/1993 36 AMENDMENT by petitioner Francis G Hernandez to Pet for Writ H/C.[1-1] (mco) Modified on 01/19/1994 (Entered: 01/19/1994) 12/01/1993 45 ANSWER to Amd 1st Pet for Writ H/C by respondent Daniel Vasquez (mco) Modified on 01/19/1994 (Entered: 01/19/1994) 01/03/1994 46 APPLICATION by petitioner Francis G Hernandez for ext of time to file trav & Decl of David A. Leventhal. (mco) (Entered: 01/24/1994) 01/04/1994 47 ORDER by Judge Ronald S. Lew granting application [46-1] to file trav (mco) (Entered: 01/24/1994) 01/19/1994 FOR ALL PREVIOUS DOCKETING, REFER TO THE PAPER DOCKET (mco) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 2/46

App. K - 284 9/26/2019 CM/ECF - California Central District (Entered 01/19/1994) 03/01/1994 48 TRAVERSE by petitioner Francis G Hernandez in Suppt of Amd 1st Pet Writ of H/C; Memo of P's & A's [36-1] (mco) (Entered: 03/02/1994) 03/01/1994 49 NOTICE re Mtn by petitioner Francis G Hernandez for Stat Conf (mco) (Entered 03/02/1994) 03/08/1994 50 ORDER by Judge Ronald S. Lew ; setting status hearing for 9:30 3/28/94 & appl of Local Rule 26.8.8 is stayed pending further ord. (mco) (Entered: 03/11/1994) 03/22/1994 51 STIPULATION and ORDER by Judge Ronald S. Lew ; mandatory status conference set on 2 00 4/4/94 (lisp) (Entered 03/25/1994) 04/04/1994 52 MINUTES: S/C held; resp to file mtn to dism w/i 30 days; pet opp shall be fld 30 days thereafter by Judge Ronald S. Lew CR: Sandra Becerra (lisp) (Entered: 04/07/1994) 05/03/1994 53 NOTICE OF MOTION AND MOTION by respondent Daniel Vasquez to dismiss clms in amd first ptn for writ of H/C ; motion hearing set for 9:00 7/25/94 (kr) (Entered: 05/06/1994) 06/03/1994 54 OPPOSITION by petitioner Francis G Hernandez motion to dismiss clms in amd first ptn for writ of H/C [53-1] (lisp) (Entered: 06/08/1994) 06/27/1994 55 reply to opp to mot to dism by respondent Daniel Vasquez, respondent James Rowland to motion to dismiss clms in amd first ptn for writ of H/C [53-1] (kr) (Entered: 06/28/1994) 07/20/1994 56 STIPULATION and ORDER re: deferral on mot to dism clms & sttng time for filing of mot for partial summ jgm. rspdnts mot for summ jgm may be fld not 11/14/94 & opp nlt 3/1/95. by Judge Ronald S. Lew (kr) (Entered: 07/27/1994) 08/31/1994 57 APPLICATION for modification of the crts ord on stip by respondent Daniel Vasquez, respondent James Rowland (lisp) (Entered: 09/07/1994) 09/01/1994 58 ORDER modifying br sched, rspdnts mot will be due 11/1/94; ptnrs opp br 2/1/95; by Judge Ronald S. Lew (kr) (Entered: 09/07/1994) 11/01/1994 59 NOTICE OF MOTION AND MOTION by respondent Daniel Vasquez, respondent James Rowland for partial summary judgment ; motion hearing set for 9 00 3/27/95 (kr) (Entered: 11/03/1994) 11/01/1994 60 REQ & ORD for permission to file oversized br by Judge Ronald S. Lew (kr) (Entered: 11/03/1994) 11/01/1994 61 REQ & ORDER to file oversized br by Judge Ronald S. Lew (kr) (Entered: 11/03/1994) 01/27/1995 62 APPLICATION for modification of the crts ord on stip to permit ptnr two addl weeks w/in which to file a resp to rspdnts mot for summ jgm; decl of David A. Leventhal; stip and prop ord. by petitioner Francis G Hernandez (kr) (Entered: 01/30/1995) 01/27/1995 63 STIPULATION and ORDER by Judge Ronald S Lew granting application [62 1] (kr) (Entered: 01/30/1995) 02/15/1995 64 DECLARATION of Edward M. Medvene in suppt of ptrns opp to respdnt mot for partial summ jgm by petitioner Francis G Hernandez (kr) (Entered: 02/17/1995) 03/08/1995 78 AMENDED table of contents to ptnrs memo of p/a in opp to respdnt mot for partial summ jgm by petitioner Francis G Hernandez (kr) (Entered 05/05/1995) 03/09/1995 65 STATEMENT of genuine iss of material facts in opp to mot for partial summ jgm. by petitioner Francis G Hernandez (kr) (Entered: 03/10/1995) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 3/46

App. K - 285 9/26/2019 CM/ECF - California Central District 03/09/1995 66 Req for permission to file oversized br & ORDER by Judge Ronald S. Lew (kr) (Entered: 03/10/1995) 03/09/1995 67 Req for permission to file oversized and ORDER by Judge Ronald S. Lew (kr) (Entered: 03/10/1995) 03/09/1995 68 memo of p/a in opp by petitioner Francis G Hernandez to motion for partial summary judgment [59-1] (kr) (Entered: 03/10/1995) 03/09/1995 69 memo in opp by petitioner Francis G Hernandez to motion for partial summary judgment [59-1] (kr) (Entered: 03/10/1995) 03/15/1995 75 MINUTES: that the motion for partial summary judgment [59-1] is submitted w/out oral arg ; by Judge Ronald S. Lew CR: none (kr) (Entered: 05/05/1995) 03/20/1995 76 STIPULATION and ORDER re-cal hrg on mot for partial summ jgm by Judge Ronald S. Lew (kr) (Entered: 05/05/1995) 04/14/1995 70 REQUEST by respondent Daniel Vasquez, respondent James Rowland for permission to file oversized br (kr) (Entered: 04/19/1995) 04/14/1995 72 req and ORDER to file ovrszd br by Judge Ronald S. Lew (kr) (Entered: 04/19/1995) 04/17/1995 71 rply to opp to mot for summ jgm by respondent Daniel Vasquez, respondent James Rowland to (kr) (Entered: 04/19/1995) 04/17/1995 73 REPLY to prns stmt of gen iss of material fact in opp to mot for par summ jgm by respondent Daniel Vasquez, respondent James Rowland (kr) (Entered: 04/19/1995) 04/18/1995 74 APPLICATION for clarification by respondent Daniel Vasquez, respondent James Rowland (kr) (Entered: 04/19/1995) 04/24/1995 77 MINUTES: mot for partial summ jgm cal for 5/1/95 is subm w/out oral arg, mtr is removed from 5/1/95 cal by Judge Ronald S. Lew CR: none (kr) (Entered: 05/05/1995) 01/12/1996 79 Ex parte APPLICATION of appointed cnsl (a) to w/draw; and (b) for pymt of fees and expenses for the period of 8/30/90-12/31/95 and decl of Edwar M. Medvene in suppt UNDER SEAL by petitioner Francis G Hernandez (kr) (Entered: 02/01/1996) 02/22/1996 80 ORDER by Judge Ronald S. Lew DENYING on ex part appl of apptd cnsl to withdraw & for payment of fees & expenses [79-1] **FILED UNDER SEAL** (pj) (Entered: 03/13/1996) 07/03/1997 81 MINUTES: Crt ORD re monthly CJA interim vouchers, Pur to G.O.#97-2 of this crt, compensation & reimbursable expenses claimed by attys appointed under the Criminal Justice Act in habeas petns involving the death penalty shall be requested on interim CJA vouchers on a monthly basis. Monthly CJA interim vouchers shall be submitted by the 10th business day of the following month & shall include all compensation & expenses claimed for the procdng month regardless of the amt of requested. Failure to timely submit monthly CJA interim vouchers may be considered a basis for denying the requested claims by Judge Ronald S. Lew CR: None present (et) (Entered: 07/10/1997) 10/02/1997 82 ORDER by Judge Ronald S. Lew GRANT in part DENY in part motion for partial summary judgment [59-1]. Therefore, Claim XXIII is procedurally barred in federal crt & the mot for S/J is GR as to tht claim. Crt GRANTS S/J on the following claims or portion of claims: IV (A) (7) (a) (relating to refrences to religion by the prosecutor); IV (A) (7) (b); IV (A) (7) (f); IV (B) (2); V(D)(1); V(D)(8) (relating to re-advisement of Miranda rights); etc. Respondent's mot for partial S/J is DENIED as to all remaining claims. [ENTERED 10-3-97] Mld all cpys w/ntc. (et) (Entered: 10/03/1997) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 4/46

App. K - 286 9/26/2019 CM/ECF - California Central District 10/23/1997 83 NOTATION of clerical error by respondent James Rowland, respondent Daniel Vasquez on ord on resp's mot for partial sum jgm (twdb) (Entered: 11/05/1997) 02/24/1998 84 ORDER by Judge Ronald S. Lew ; status conf set on 9:00 3/23/98 (el) (Entered: 02/25/1998) 03/23/1998 85 MINUTES: ; status conference held Ptnr's cnsl to submit req for funds & mtn re appt of cnsl w/in one month; crt to set fur stat conf at that time. by Judge Ronald S. Lew CR: Roger May (el) (Entered: 03/25/1998) 04/24/1998 86 NOTICE of UNDER SEAL flg pur to the CJA by petitioner Francis G Hernandez (el) Modified on 05/04/1998 (Entered: 05/04/1998) 04/24/1998 87 EX PARTE AND IN CAMERA APPLICATION filed by petitioner Francis G Hernandez for investigative & expert funds ; decl of Edward M Medvene***FILED UNDER SEAL*** (el) Modified on 05/04/1998 (Entered: 05/04/1998) 04/24/1998 88 EX PARTE AND IN CAMERA APPLICATION filed by petitioner Francis G Hernandez to confirm continuation of cnsl ; decl of Edward M Medvene in suppt ***FILED UNDER SEAL*** (el) (Entered: 05/04/1998) 04/24/1998 LODGED/PROPOSED ORDER submitted by petitioner Francis G Hernandez for exparte motion to confirm continuation of cnsl [88-1] .(FWD TO CRD) (el) (Entered: 05/04/1998) 04/24/1998 LODGED/PROPOSED ORDER submitted by petitioner Francis G Hernandez for exparte motion for investigative & expert funds; decl of Edward M Medvene [87-1] . (FWD TO CRD) (el) (Entered: 05/04/1998) 04/27/1998 89 EX PARTE AND IN CAMERA APPLICATION filed by petitioner Francis G Hernandez for investigative & expert funds ; decl of Edward M Medi***FILED UNDER SEAL*** (el) (Entered: 05/04/1998) 04/27/1998 90 EX PARTE & IN CAMERA APPLICATION filed by petitioner Francis G Hernandez to confirm cont of cnsl ; decl of Edward M Medvene in suppt***FILED UNDER SEAL*** (el) (Entered: 05/04/1998) 05/14/1998 91 ORDER by Judge Ronald S. Lew granting exparte motion to confirm cont of cnsl [90-1] *****FILED UNDER SEAL*** (shb) (Entered: 05/21/1998) 06/09/1998 92 ORDER by Judge Ronald S. Lew denying exparte motion for investigative & expert funds [89-1] and granting an evidentiary hrg. (pbap) (Entered: 06/11/1998) 06/16/1998 93 EX PARTE APPLICATION filed by petitioner Francis G Hernandez for extension of deadline to file petitioners mot setting 4th claims on which he seeks evidentiary hearing ; Decl of Edward M Medvene in suppt Lodged proposed order (shb) (Entered: 06/17/1998) 06/18/1998 94 ORDER by Judge Ronald S. Lew granting exparte motion for extension of deadline to file petitioners mot setting 4th claims on which he seeks evidentiary hearing [93-1] It is further ord that petitioner is directed to file his motion setting forth fhose claims on which he seeks an evidentiary hearing on or before 7/13/98. (shb) (Entered: 06/22/1998) 07/14/1998 95 NOTICE OF DISCREPANCY AND ORDER by Judge Ronald S. Lew that petitioners designation of claims on which he seeks an evidentiary hearing is to be filed and processed. (shb) (Entered: 07/15/1998) 07/14/1998 96 Petitioners designation of claims on which he seeks an evidentiary hearing (shb) (Entered: 07/15/1998) 07/14/1998 97 AMENDMENT by petitioner Francis G Hernandez to designation of claims on which he https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 5/46

App. K - 287 9/26/2019 CM/ECF - California Central District seeks an evidentiary hearing [96 1] (shb) (Entered 07/21/1998) 07/27/1998 98 EX PARTE APPLICATION filed by respondent James Rowland, respondent Daniel Vasquez for clarification , or in the alt issuaance of a briefing schedule Lodged proposed orde (shb) (Entered: 07/31/1998) 07/31/1998 99 REPLY by petitioner Francis G Hernandez to response to request for clarification [98-1], or in the alt issuaance of a briefing schedule [98 2] (shb) (Entered 08/05/1998) 08/05/1998 100 REPLY by respondent James Rowland, respondent Daniel Vasquez to Opposition to request for clarification [98-1], or in the alt for issuaance of a briefing schedule [98-2] (shb) (Entered: 08/07/1998) 08/21/1998 101 NOTICE by petitioner Francis G Hernandez of under seal filing pursuant to the Crimimal Justice Act (shb) (Entered 08/31/1998) 08/21/1998 102 Second EX PARTE APPLICATION and in camera APPLICATION filed by petitioner Francis G Hernandez for investigative and expert funds Decl of Edward M Medvene Lodged proposed order *****FILED UNDER SEAL***** (shb) Modified on 08/31/1998 (Entered: 08/31/1998) 09/09/1998 103 ORDER by Judge Ronald S Lew granting exparte motion for investigative and expert funds [102-1] *****FILED UNDER SEAL***** (shb) (Entered: 09/11/1998) 09/29/1998 104 Crt set a br sched for petr's evid hrg mot. On/about 12/2/98, petr shall fi a mot setting forth the clms on which he seeks an evid hrg & the legal & factual bases for those clms. Resp shall fi an oppo to the mot on/bef 1/6/99, & petr shall fi a reply on/bef 1/20/99 The crt will then take the mot under subm by Judge Ronald S. Lew (lori) (Entered: 09/30/1998) 12/02/1998 105 NOTICE OF MOTION AND MOTION by petitioner Francis G Hernandez for evidentiary hearing (et) (Entered: 12/04/1998) 12/02/1998 106 DECLARATION of Edward M. Medvene by petitioner Francis G Hernandez re motion for evidentiary hearing [105-1] (et) (Entered: 12/04/1998) 01/05/1999 107 NOTICE by petitioner Francis G Hernandez of under seal filing pursuant to the Criminal Justice Act (shb) (Entered 01/06/1999) 01/05/1999 108 EX PARTE APPLICATION and In Camera filed by petitioner Francis G Hernandez for expert funds Decl of Edward M Medvene Lodged prop ord *****FILED UNDER SEAL***** (shb) (Entered: 01/06/1999) 01/06/1999 109 EX PARTE APPLICATION filed by respondent Daniel Vasquez for permission to exceed page limit ; Decl of Robert Henry Lodged prop ord (shb) (Entered 01/08/1999) 01/13/1999 110 ORDER by Judge Ronald S. Lew granting exparte motion for permission to exceed page limit [109-1] (shb) (Entered: 01/15/1999) 01/13/1999 111 OPPOSITION by defendant Arthur Calderon to motion for evidentiary hearing [105 1] (shb) (Entered: 01/15/1999) 01/20/1999 112 REPLY brief by petitioner Francis G Hernandez in suppotf of motion for evidentiary hearing [105-1] (shb) (Entered: 01/22/1999) 01/28/1999 113 REQUEST filed by defendant Arthur Calderon for hearing on motion , or in the alt request for leave to file clarifying brief Lodged (shb) (Entered 01/29/1999) 02/19/1999 114 RESPONSE by petitioner Francis G Hernandez to to exparte motion for hearing on motion [113-1], to exparte motion request for leave to file clarifying brief [113-2] (shb) (Entered: 02/23/1999) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 6/46

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07/12/1999 115 ORDER by Judge Ronald S. Lew directing respondent to lodge copy of petitioner's audio-taped confession and transcript. (shb) (Entered: 07/14/1999) 08/11/1999 116 SECOND ORDER by Judge Ronald S. Lew directing respondent to lodge copy of petitioner's audio-taped confession and transcript. This crt orders respondent to lodge a copy of petitioner's tape recorded statement and transcript by 9/1/99 or provide the crt with good cause why he cannot lodge these items by that date. (shb) (Entered: 08/12/1999) 08/13/1999 117 NOTICE by defendant Arthur Calderon of lodging copy of audio tape cassette and copy of transcript of tape; Decl of Nancy Gayton; Decl of Robert Henry (shb) (Entered: 08/23/1999) 08/13/1999 LODGED 1 envelope submitted by defendant Arthur Calderon (FWD TO CRD) (shb) (Entered: 08/23/1999) 12/21/1999 119 ORDER by Judge Ronald S. Lew GRANT in part DENY in part motion for evidentiary hearing [105-1], briefing sched: by 2/22/00 jnt stip re discov, wit lists, 4/21/00 DCO, 6/23/00 narrative stmts & depos subm to crt w/exh. mots in limine, briefing on merits of outstanding clms (dmjr) (Entered: 12/22/1999) 01/08/2000 154 RESPONSE by petitioner Francis G Hernandez re motion reply [152-1] (ab) (Entered: 01/09/2001) 02/25/2000 120 ORDER by Judge Ronald S. Lew re jnt stip & req for modification of scheduling ord (see doc for details) (dmjr) (Entered: 02/28/2000) 02/29/2000 PLACED IN FILE - NOT USED jnt stip & ord (dmjr) (Entered: 03/03/2000) 03/22/2000 121 Jnt stmt & ORDER by Judge Ronald S. Lew re discov on juror misconduct issues (see doc for details) (dmjr) (Entered: 03/24/2000) 05/02/2000 122 JNT STIP & REQ by Judge Ronald S. Lew to modify sched ord fld 2/25/00 ; discovery ddl set on 7/1/00 & 8/31/00 . **see doc for various dates** (pbap) (Entered: 05/03/2000) 06/20/2000 123 JOINT STIPULATION and ORDER To Modify Sched Ord: On 5/2/00, this Hon Crt issued it's Ord Re Joint Stip for Modification of Sched Ord, setting dates for the completion of disc & subm of briefing on the clms which the Crt has ord an evid hrg. (See doc for fur details.) Discov on juror misconduct clms must be completed on 8/15/00, additionally, the ptys must subm a joint stip re discov pertaining to the ineffective assist of cnsl clm. Wit lsts & offers of proof on the juror misconduct clms must be subm on 8/29/00. Narrative stmnts & depo testimony of all juror misconduct wits must be subm to the Crt along w/any exh (see doc for fur details.) Discov re the ineffective assist of cnsl clms must be subm by 10/15/00. Narrative stmnts & depo testimony of all ineffective assit of cnsl must be subm alowng w/any exh & motions in limine to excl portions of testimony contained in the depos must be subm by 11/30/00. Briefing on the merits of all remaining clms must be subm by 12/30/00 by Judge Ronald S. Lew (yl) (Entered: 06/21/2000) 07/31/2000 124 Jnt stip & REQUEST to modify 5/2/00 scheduling ord (dmjr) (Entered: 08/02/2000) 07/31/2000 125 ORDER by Judge Ronald S. Lew re jnt stip & req to modify scheduling ord. Respondent to provide crt w/info re new allegations of juror misconduct before further depos of any jurors not on 3/22/00 stip are conducted (dmjr) (Entered: 08/02/2000) 08/07/2000 126 RESPONSE by respondent re order [125-1] & req for expedited decision. Lodged ord (dmjr) (Entered: 08/08/2000) 08/09/2000 127 REPLY by petitioner Francis G Hernandez to response to order re joint stip and request to https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 7/46

App. K - 289 9/26/2019 CM/ECF - California Central District modify ord scheduling ord [126-1] (shb) (Entered: 08/11/2000) 08/10/2000 128 ORDER by Judge Ronald S. Lew re jnt stip & req for modification of scheduling ord (see doc for details) (dmjr) (Entered: 08/14/2000) 08/10/2000 PLACED IN FILE - NOT USED prop ord (dmjr) (Entered: 08/14/2000) 08/10/2000 PLACED IN FILE - NOT USED prop ord (dmjr) (Entered: 08/14/2000) 08/14/2000 129 REPLY by respondent re [127-1] (dmjr) (Entered: 08/14/2000) 08/25/2000 130 NOTICE by respondent of taking deposition of Audrey Jaeger, Karen McCracken on 8/30/00 2pm & on 8/29/00 10am respectively (dmjr) (Entered: 08/29/2000) 08/25/2000 131 NOTICE OF MOTION AND MOTION by petitioner for order for face to face depo (dmjr) (Entered: 08/29/2000) 08/25/2000 132 OPPOSITION by respondent to motion for order for face to face depo [131-1] (dmjr) (Entered: 08/29/2000) 08/28/2000 133 REPLY by petitioner Francis G Hernandez to response to motion for order for face to face depo [131-1] (shb) (Entered: 08/30/2000) 08/28/2000 133 REQUEST by petitioner Francis G Hernandez for expedited decision (shb) (Entered: 08/30/2000) 08/28/2000 133 REQUEST by petitioner Francis G Hernandez for stay telephonic depo pending decision (shb) (Entered: 08/30/2000) 08/28/2000 LODGED/PROPOSED ORDER submitted by petitioner Francis G Hernandez for motion request [133-1], for motion request [133-1] .(FWD TO CRD) (shb) (Entered: 08/30/2000) 08/29/2000 134 APPLICATION by respondent to suspend discov on joror misconduct for 3 months re juror Viola Howes (dmjr) (Entered: 08/31/2000) 09/01/2000 135 NOTICE by respondent of clarification of unopposed applic to suspend discov on juror misconduct clm (dmjr) (Entered: 09/05/2000) 09/01/2000 136 NOTICE by respondent of taking deposition of Karen McCracken on 9/6/00 11am (dmjr) (Entered: 09/05/2000) 09/07/2000 138 ORDER by Judge Ronald S. Lew re jnt stip & req for modification of scheduling ord (see doc for details) (dmjr) (Entered: 09/13/2000) 09/08/2000 137 NOTICE by respondent of taking deposition of G Barber on 9/12/00, C R Solimanon 9/13/00, M Manchester on 9/13/00 (dmjr) (Entered: 09/11/2000) 09/13/2000 PLACED IN FILE - NOT USED proposed ord gr petitioners mot to stay telephonic depos (shb) (Entered: 09/15/2000) 09/13/2000 PLACED IN FILE - NOT USED Proposed ord gr petitioners mot to stay telephonic depos (shb) (Entered: 09/15/2000) 09/13/2000 139 ORDER by Judge Ronald S. Lew denying motion for order for face to face depo [131-1] (shb) (Entered: 09/15/2000) 09/14/2000 140 Authorized STATEMENT re jnt stmt of parties on ineffective assistance of cnsl discov phase by petitioner (dmjr) Modified on 09/26/2000 (Entered: 09/18/2000) 09/29/2000 141 ORDER by Judge Ronald S. Lew directing parties to subm jnt stip re discov by 10/13/00 (dmjr) (Entered: 10/02/2000)

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App. K - 290 9/26/2019 CM/ECF - California Central District 10/31/2000 142 Joint discovery STATEMENT of ineffective assistance of cnsl & req to trifurcate evidentiary hrg on question of ineffective assistance of cnsl (dmjr) (Entered: 11/01/2000) 10/31/2000 143 AMENDMENT to [142-1] (dmjr) (Entered: 11/01/2000) 10/31/2000 144 NOTICE OF ERRATA correcting amend [143-1] (dmjr) (Entered: 11/01/2000) 10/31/2000 PLACED IN FILE - NOT USED prop ord (dmjr) (Entered: 11/01/2000) 10/31/2000 145 ORDER by Judge Ronald S. Lew req to trifurcate evidentiary hrg denied, crt approves jnt stmt on ineffective assistance of cnsl & jnt stip for modification of scheduling ord (see doc for details) (dmjr) (Entered: 11/02/2000) 11/28/2000 146 NOTICE by defendant Jeanne Woodford of taking deposition of Viola Howes on 3/20/01 at 2:00pm (shb) (Entered: 11/29/2000) 12/06/2000 147 NOTICE OF MOTION AND MOTION by defendant to waive atty-client privelege & compel disclosure of atty client info & req modification of scheduling ord ; motion hearing set for 9:00 1/8/01 Lodged ord (dmjr) (Entered: 12/13/2000) 12/26/2000 148 EX PARTE APPLICATION filed by petitioner to extend time to file resp to mot to declare waiver of atty-client privilege & compel discolosure of priviliged info & req modification of sccheduling ord Lodged ord (dmjr) (Entered: 12/28/2000) 12/27/2000 149 RESPONSE by petitioner to to motion to waive atty-client privelege & compel disclosure of atty client info [147-1] (dmjr) (Entered: 01/02/2001) 12/29/2000 150 DECLARATION of G R Weinheimer by petitioner re motion to waive atty-client privelege & compel disclosure of atty client info [147-1] (dmjr) (Entered: 01/03/2001) 12/29/2000 151 DECLARATION of G R Weinheimer by petitioner re exparte motion to extend time to file resp to mot to declare waiver of atty-client privilege & compel discolosure of priviliged info [148-1] (dmjr) (Entered: 01/03/2001) 01/02/2001 152 REPLY by defendant Jeanne Woodford to opposition to motion to waive atty-client privelege & compel disclosure of atty client info [147-1] (shb) (Entered: 01/03/2001) 01/03/2001 153 MINUTES: taking motion to waive atty-client privelege & compel disclosure of atty client info [147-1] off calendar & matter is under subm, no appearances by Judge Ronald S. Lew CR: n/a (dmjr) (Entered: 01/04/2001) 01/09/2001 155 Supplemental DECLARATION of Gail Weinheimer by petitioner Francis G Hernandez re motion to waive atty-client privelege & compel disclosure of atty client info [147-1] (shb) (Entered: 01/10/2001) 01/10/2001 156 SUPPLEMENTAL by petitioner Francis G Hernandez re declaration of Gail Weinheimer in suppt of response to reply to opposition to declare waiver of atty client privilege [155- 1] (shb) (Entered: 01/10/2001) 01/11/2001 157 REQUEST by defendant Jeanne Woodford to strike response to reply to opposition to motion to declare waiver of attorney client privilege, etc; memo of points and authorities (shb) (Entered: 01/12/2001) 01/12/2001 158 ORDER by Judge Ronald S. Lew granting motion request [157-1] and req for modification of scheduling ord. (pbap) (Entered: 01/16/2001) 01/12/2001 159 Unopposed EX PARTE APPLICATION filed by defendant Jeanne Woodford to extend disc cut-off date to 30 days following crt's ruling on mtn declare waiver (pbap) (Entered: 01/19/2001) 01/16/2001 PLACED IN FILE - NOT USED prop ord (pbap) (Entered: 01/19/2001) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 9/46

App. K - 291 9/26/2019 CM/ECF - California Central District 01/16/2001 160 ORDER by Judge Ronald S. Lew n respondents mot to declare waiver of attorney-client privilege and request for modification of scheduling order. i The crt finds that petitioner's attorney-client privilege reg Torelli has been waived e the matters challenged... any info that is relevant to Petitioner's ineffective assistance of cnsl claims... The crt finds that it would be premature to draft a more specific order at this time... Prehearing schedule as follows: 2/16/01: discovery re deficiency prong of the ineffective assistance of cnsl; 3/1/01: Narravive stmnts and depo testimony; 3/19/01: ptys shall file simultaneous briefing; 3/20/01: telephonic depo of Viola Howes; 3/21/01: discovery re juror misconduct claims; 4/19/01: The ptys shall file simultaneous oppositions; 4/20/01: narrative stmnts an depo testimony; 5/7/01: The ptys shall file their respective replies to the oppositions; 5/8/01 the ptys shall file simultaneous briefings re juror misconduct claims; 6/7/01: The parties shall file simultaneous oppositions to the opposing parties briefs; 6/24/01: THe parties will file their respective replies to the oppositions re juror misconduct claims. (See original order for specific detains) (shb) (Entered: 01/19/2001) 01/22/2001 161 ORDER by Judge Ronald S. Lew denying exparte motion to extend disc cut-off date to 30 days following crt's ruling on mtn declare waiver [159-1] as moot (dmjr) (Entered: 01/23/2001) 01/25/2001 162 NOTICE OF DEPOSITION by defendant Jeanne Woodford of taking deposition of John Torelli on 02/01/01; issued subpoena (jp) (Entered: 01/31/2001) 02/20/2001 163 STATUS REPORT by defendant Jeanne Woodford (shb) (Entered: 02/21/2001) 02/20/2001 163 Unopposed EX PARTE APPLICATION filed by defendant Jeanne Woodford for modificatioj of scheduling order (shb) (Entered: 02/21/2001) 02/26/2001 164 ORDER by Judge Ronald S. Lew motifying the scheduling ord (see doc for details) (dmjr) (Entered: 02/28/2001) 03/23/2001 165 Unscheduled Joint STATUS REPORT (shb) (Entered: 03/26/2001) 08/22/2001 166 STIPULATION and ORDER by Judge Ronald S. Lew req to modify scheduling ord fld 2/26/01 addressing the dates for the filing of briefing as fols: 9/15/01 the ptys shall file narrative stmts & depot testimony re the deficiency prong along w/any exhs; 10/30/01 the ptys shall file simultaneous briefing re whether trial cnl's performance was deficient; 11/29/01 the ptys shall file simultaneous opps on the merits of the question whether trial cnsl's performance was deficient; 12/11/01 the ptys shall file their simultaneous reply briefs. The Crt will then take the matter under subm; 1/10/02 the ptys shall file narrative stmts & depo testimony re the jury misconduct clms along w/any exhs; 2/25/02 the ptys shall file simultaneous briefs re the merits of the juror misconduct clms; 3/25/02 the ptys shall file simultaneous opps on the merits of the jury misconduct clms; 4/12/02 the ptys shall file simultaneous reply briefs. The Crt will take the juror misconduct clms under subm (see doc for fur details) (SEND) (rl) (Entered: 08/23/2001) 09/27/2001 167 Supplemental NOTICE by defendant Jeanne Woodford of lodging of documents and index of record pursuant to Local RUle 26.8.7; Lodged 1 box with CRD (shb) (Entered: 09/28/2001) 09/27/2001 LODGED 1 box of tanscripts submitted by defendant Jeanne Woodford (FWD TO CRD) (shb) (Entered: 09/28/2001) 09/28/2001 168 EX PARTE APPLICATION filed by respondent to file 2 narrative stmts in excess of the 25 page limitation ; Decl of Robert S Henry; Lodged ord & narrative stmts (rl) (Entered: 10/03/2001) 09/28/2001 169 NARRATIVE STATEMENT of John Torelli (rl) (Entered: 10/03/2001)

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App. K - 292 9/26/2019 CM/ECF - California Central District 10/01/2001 172 PETITIONER'S NARRATIVE SUMMARY of trial cnsl's investigation and presentation of mental state defenses at guilt phase and mitigating evidence at penalty phase (rl) (Entered 10/05/2001) 10/02/2001 170 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to permit the filing of a Narrative Stmt in excees page limitation applicable to briefs set forth in local rule 3.10; Decl of Ronald A Dinicola; Lodged ord (rl) Modified on 10/10/2001 (Entered: 10/04/2001) 10/02/2001 171 NARRATIVE STATEMENT of Charles Downing by respondent Daniel Vasquez (rl) (Entered: 10/04/2001) 10/02/2001 173 ORDER by Judge Ronald Lew granting ex parte application to permit the filing of a Narrative Stmt in excees page limitation [170-1]; IT IS ORD that the Narrative Stmt be fld (SEND) (jj) (Entered: 10/09/2001) 10/04/2001 175 ORDER by Judge Ronald Lew IT IS HEREBY ORD that petr's narrative stmt be fld (SEND) (rl) (Entered: 10/10/2001) 10/05/2001 174 STIPULATION and ORDER by Judge Ronald Lew requesting the Crt to modify scheduling ord fld 2/26/01 by extending by 14 days each of the due dates for filing of the briefing as follows: 10/1/01 the ptys shall file narrative stmts & deposition testimony re the deficiency prong along w/any exhs. 11/15/01 the ptys shall file simultaneous briefing re whether trial cnls's performance was deficient. 12/13/01 the ptys shall file simultaneous opp on the merits of the question whether trial cnsl's performance was deficient. 12/31/01 the ptys shall file their simultaneous reply briefs. 1/24/02 the ptys shall file narrative stmts & deposition testimony re the jury misconduct clms along w/any exhs. 3/11/02 the ptys shall file simultaneous briefs re the merits of the juror misconduct clms. 4/8/02 the ptys shall file simultaneous opps on the merits of the jury misconduct clms. 4/26/01 the ptys shall file simultaneous reply briefs. The Crt will take the juror misconduct clms under subm (see doc for fur details) (SCAN) (rl) (Entered: 10/10/2001) 11/15/2001 176 JOINT STIPULATION and request to modify scheduling by Judge Ronald Lew: 11/30/01 the ptys shall file simultaneous briefing re whether trial cnsl's performance was deficient. 12/28/01 the ptys shall file simultaneous opps on the merits of the question whether trial cnsl's performance was deficient 1/15/02 the ptys shall file their simultaneous reply briefs. The Crt will then take the matter under subm. 2/8/02 the ptys shall file narrative stmts & depo testimony re the jury misconduct clms, along w/any exhs. 3/26/02 the ptys shall file simultaneous briefs re the merits of the juror misconduct clms 4/23/02 the ptys shall file simultaneous opps on the merits of the jury misconduct clms. 5/11/02 the ptys shall file simultaneous reply briefs. The Crt will take the juror misconduct clms under subm (see doc for fur details) (SEND) (rl) (Entered 11/19/2001) 11/29/2001 177 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file his brief addressing the performance of his trial cnsl at the guilt & penalty phases of his triali; Lodged propsd ord (rl) (Entered: 11/30/2001) 11/30/2001 178 POST EVIDENTIARY HEARING BRIEF FILED by respondents on the 1st prong of petr's ineffective assistance of cnsl clm (adequacy of trial cnsl's investigation); Lodged propsd ord (rl) (Entered: 12/03/2001) 11/30/2001 179 EX PARTE APPLICATION filed by resps James Rowland, Daniel Vasquez to file PA in excess of 25 page limitation ; Decl of Robert S Henry (rl) (Entered: 12/04/2001) 12/04/2001 180 ORDER by Judge Ronald Lew granting ex parte application to file PA in excess of 25 page limitation [179 1](SEND) (rl) (Entered 12/05/2001) 12/04/2001 181 ORDER by Judge Ronald Lew granting ex parte application to extend time to file his https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 11/46

App. K - 293 9/26/2019 CM/ECF - California Central District brief [177-1] on the performance of his trial cnsl to and through 12/5/01 (SEND) (rl) (Entered: 12/05/2001) 12/05/2001 182 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file his brief to & through 12/11/01 addressing the performance of his trial cnsl at the guilt & penalty phases of his trial; Lodged propsd ord (rl) Modified on 05/14/2002 (Entered: 12/06/2001) 12/05/2001 183 DECLARATION in suppt of ex parte appl by petitioner Francis G Hernandez re ex parte application to extend time to file his brief [182-1] on deficient performance of cnsl (rl) (Entered: 12/06/2001) 12/11/2001 184 EX PARTE APPLICATION filed by petitioner Francis G Hernandez for lv to exceed 25 page limitation to file petr's brief on the deficient performance of trial cnsl purs to local rule 3.10; Lodged propsd ord (rl) (Entered: 12/12/2001) 12/11/2001 185 DECLARATION by petitioner Francis G Hernandez in suppt of ex parte application for lv to exceed 25 page limitation to file petr's brief on the deficient performance of trial cnsl [184-1] (rl) (Entered: 12/12/2001) 12/11/2001 186 PETITIONER'S BRIEF on trial cnsl's deficient performance filed by petitioner Francis G Hernandez (rl) (Entered: 12/12/2001) 12/13/2001 187 ORDER by Judge Ronald Lew granting ex parte application to extend time to file his brief [182-1] to & through 12/11/01 (SEND) (rl) (Entered: 12/14/2001) 12/14/2001 188 JOINT STIPULATION and ORDER by Judge Ronald Lew and request to modify scheduling ord IT IS SO ORD that on 2/15/02 the ptys shall file simultaneous opps on the merits of the question whether trial cnsl's performance was deficient. 3/4/02 the ptys shall file their simultaneous reply briefs. The Crt will then take the matter under subm. 4/6/02 if the Crt has not issd any addtl briefing schedule the ptys shall file narrative stmts & deposition testimony re the jury misconduct clms, along w/any exhs. 5/13/02 the ptys shall file simultaneous briefs re the merits of the juror misconduct clms. 6/10/02 the ptys shall file simultaneous opps on the merits of the jury misconduct clms. 6/30/02 the ptys shall file simultaneous reply briefs. The Crt will take the juror misconduct clms under subm (SEND) (rl) (Entered: 12/18/2001) 12/14/2001 189 ORDER by Judge Ronald Lew granting ex parte application for lv to exceed 25 page limitation to file petr's brief on the deficient performance of trial cnsl [184-1] (rl) (Entered: 12/26/2001) 02/14/2002 190 JOINT STIPULATION and ORDER by Judge Ronald Lew and request to modify scheduling ord IT IS SO ORD that: 3/15/02 the ptys shall file simultaneous opps on the merits of the question whether trial cnl's performance was deficient. 4/3/02 the ptys shall file their simultaneous reply briefs. The Crt will then take the matter under submission. 5/6/02 the ptys shall file narrative stmts & depo testimony re the jury misconduct clms along w/any exhs. 6/12/02 the ptys shall file simultaneous briefs re the merits of the juror misconduct clms. 7/30/02 the ptys shall file simultaneous opps on the merits of the jury misconduct clms. 8/20/02 the ptys shall file simultaneous reply briefs. The Crt will take the juror misconduct clms under submission (see doc for fur details) (rl) (Entered: 02/15/2002) 03/15/2002 191 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time in which to file his opp to resp's post-evidentiary hrg brief and petr's mot to strike to & through 3/29/02; Decl of Gail R Weinheimer; Lodged propsd ord (rl) (Entered: 03/25/2002) 03/29/2002 192 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 12/46

App. K - 294 9/26/2019 CM/ECF - California Central District file petr's opp to resp's post-evidentiary hrg brief and petr's mot to strike ; Decl of Gail R Weinheimer; Lodged propsd ord (rl) (Entered: 04/04/2002) 04/02/2002 193 ORDER by Judge Ronald Lew granting ex parte application to extend time to file petr's opp to resp's hrg brief and petr's mot to strike [192-1] to & through 4/6/02, granting ex parte application to extend time in which to file his opp resp's post-evidentiary hrg brief and petr's mot to strike [191-1] to & through 4/6/02 (rl) (Entered: 04/04/2002) 04/03/2002 194 JOINT STIPULATION and ORDER by Judge Ronald Lew modifying scheduling ord [190-1]. Ptys shall file their simultaneous reply briefs 5/15/02. Crt will then take the matter under submission. Should crt rule that trial cnsl's performance was not deficient, the ptys will brief the merits of the remaining claims within 30 days following the later of either (1) the issuance of the Crt's ruling on the question of the adequacy of cnsl's performance, or (2) the issuance of the Crt's ruling, if it is still pending, regarding the juror misconduct issues. If the crt rules that trial cnsl's performance was deficient, it will issue a new ord reflecting the schedule for disposing of the 2nd stage of the ineffective assistance of cnsl question & the remaining claims. The ptys shall file narrative stmts & depo testimony re the jury misconduct claims 6/15/02. Ptys shall file simultaneous briefs re the merits of the juror misconduct claim 7/30/02. Ptys shall file simultaneous opps on the merits of the jury misconduct claims 8/30/02. In lieu of mots in limine, each pty shall include in its opp any obj it deems appropriate to the admissibility of any evidence upon which the opposing pty's brief relies for any point. Crt will then consider both the objs contained in the opp & the objs lodged at the depo & decide whether to consider the evidence in its ruling re the jury misconduct claims. The ptys shall file simultaneous reply briefs 9/30/02. Crt will take the juror misconduct claims under submission. (gk) (Entered: 04/12/2002) 04/15/2002 195 JOINT STIPULATION and ORDER by Judge Ronald Lew request to modify scheduling ord: In light of the above and taking into account the length & substance of the briefing submitted thus far & cnsl's obligations in other matters, the ptys agree that a modification of the scheduling ord is necessary as fols: 4/22/02 the ptys shall file their simultaneous opps and mots to strike; 5/29/02 the ptys shall file their simultaneous reply briefs. The Crt will then take the matter under submission. If the Crt rules that trial cnl's performance was deficient, it will issue a new ord reflecting the schedule for disposing of the 2nd stage of the ineffective assistance of cnsl question. 7/1/02 the ptys shall file narrative stmts & deposition testimony re the jury misconduct clms, along w/any exhs. 8/13/02 the ptys shall file simultaneous briefs re the merits of the juror misconduct clms. 9/13/02 the ptys shall file simultaneous opps on the merits of the jury misconduct clms; 10/14/02 the ptys shall file simultaneous reply briefs. The Crt will take the juror misconduct clms under submission. The ptys will brief the merits of the remaining clms (other than ineffective assistance of cnsl & juror misconduct) w/in 30 days fol the later of either 1) the issuance of the Crt's ruling on the question of the adequacy of cnl's performance or 2) the issuance of the Crt's ruling re the juror misconduct issues (see doc for fur details) IT IS SO ORD (rl) (Entered: 04/17/2002) 04/18/2002 197 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file petr's opp to resp's post-evidentiary hrg brief ; Lodged ord (rl) (Entered: 04/29/2002) 04/18/2002 197 MOTION by petitioner Francis G Hernandez to strike ; Decl of Edward M Medvene; Lodged ord (rl) (Entered: 04/29/2002) 04/23/2002 196 [PROPOSED] ORDER by Judge Ronald Lew granting ex parte application to extend time to file petr's opp to resp's post-evidentiary hrg brief and petr's mot to strike [192-1] to and through 4/30/02, granting ex parte application to extend time in which to file his opp to resp's post-evidentiary hrg brief and petr's mot to strike [191-1] to and through 4/30/02 (rl) (Entered: 04/24/2002) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 13/46

App. K - 295 9/26/2019 CM/ECF - California Central District 04/30/2002 199 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file petr's opp to resp's post-evidentiary hrg brief and petr's mot to strike ; Decl of Edward M Medvene; Lodged propsd ord (rl) (Entered: 05/02/2002) 05/01/2002 198 ORDER by Judge Ronald Lew granting motion to strike [197-1] granting ex parte application to extend time to file petr's opp to resp's post-evidentiary hrg brief [197-1]to & through 5/8/02 (rl) (Entered: 05/02/2002) 05/08/2002 200 EX PARTE APPLICATION filed by petitioner to extend time to 5/17/02 to file opp to post-hrg brief & mot to strike & modification to scheduling ord Lodged ord (dmjr) (Entered: 05/09/2002) 05/13/2002 PLACED IN FILE NOT USED [propsd] ord modifying scheduling order (rl) (Entered: 05/14/2002) 05/13/2002 201 ORDER REGARDING SCHEDULING by Judge Ronald Lew denying ex parte application to extend time to 5/17/02 to file opp to post-hrg brief & mot to strike & modification to scheduling ord [200-1]. Instead, the ptys will adhere to the fol schedule re the ineffective assistance clms: 5/17/02 the ptys shall file their simultaneous oppositions & motions to strike/objs to the admissibility of evidence; 5/31/02 the ptys shall file their simultaneous reply briefs. The pty shall submit a joint status report re the depositions that must be completed & the length of time necessary to complete each deposition. The joint status report is due on 5/24/02. The Crt fur orders that it grants funds for only one of Petr's attorneys to attend any future depositions. Additionally, the ptys shall submit to the Crt transc of any juror depositions that have already been completed. The ptys shall furnish the Crt w/addtl depo transc as they are completed. All juror depositions must be completed, & transc & exhs provided to the Crt NLT 6/28/02. The Crt imposes the fol schedule re the briefing of the juror misconduct clms: 7/26/02 the ptys shall file simultaneous briefs re the merits of the juror misconduct clms. The ptys shall also file mots to strike & objs to the record. The Crt dispenses w/the requirement to file narrative stmts, no narrative stmts will be rcd; 8/23/02 the ptys shall file simultaneous oppositions. No replies shall be rcd. The ptys shall brief the merits of the remaining clms (other than the ineffective assistance of cnsl & juror misconduct clms) by 9/30/02. Oppositions must be filed by 10/31/02. No replies will be rcd. The ptys must plan carefully to meet these deadlines. No fur extensions of time are contemplated (rl) (Entered: 05/15/2002) 05/17/2002 202 OBJECTIONS by petitioner Francis G Hernandez to motion to strike [197-1] evidence and argument contained in Resp's narrative stmt of Charles Downing and post evidentiary hrg brief (rl) (Entered: 05/20/2002) 05/17/2002 206 EX PARTE APPLICATION filed by resp Jeanne Woodford to filed PA in excess of 25 page limitation ; Decl of Robert S Henry; Lodged order & opposition (rl) (Entered: 05/24/2002) 05/17/2002 207 EX PARTE APPLICATION filed by petitioner Francis G Hernandez for lv to file opp to resp's brief on the merits on the 1st prong of petr's ineffective assistance of cnsl clm in excess of 25 page limitation ; Decl of Edeard M Medvene; Lodged order & opposition (rl) (Entered: 05/24/2002) 05/21/2002 203 JOINT STATUS REPORT and request for modification of scheduling order by petitioner, defendant Jeanne Woodford (rl) (Entered: 05/23/2002) 05/22/2002 204 ORDER by Judge Ronald Lew granting petr's Ex Parte Appl for lv to file opp to Resp's brief on the merits on the 1st Prong of Petr's ineffective assistance of cnsl clm in excess of 25 page limitation (rl) (Entered: 05/23/2002) 05/22/2002 205 ORDER by Judge Ronald Lew granting ex parte application for lv to exceed 25 page limitation to file petr's brief on the deficient performance of trial cnsl [184-1] (rl) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 14/46

App. K - 296 9/26/2019 CM/ECF - California Central District (Entered: 05/23/2002) 05/22/2002 208 RESPONDENT'S OPPOSITION TO "petr's brief on trial counsel's deficient performance" and objs to evidence [186-1] (rl) (Entered: 05/24/2002) 05/22/2002 209 OPPOSITION filed by petitioner Francis G Hernandez to brief on the merits on the 1st prong of petr's ineffective assistance of cnsl clm [178-1] (rl) (Entered: 05/28/2002) 05/24/2002 210 ORDER by Judge Ronald Lew re joint status report and denying request for extension. On 5/21/02, the ptys submitted a joint status report. In this report Resp's cnsl made an unopposed request to extend the briefing schedule by 1 month. The opening briefs re the juror misconduct clms are not due until 7/26/02. The Crt finds that 6 weeks is ample time to complete this briefing. Accordingly, the request for extension is DENIED [203-1]. The briefing schedule, therefore remains as previously ordered w/the exception of the modifications (see doc for fur details) IT IS SO ORDERED (rl) (Entered: 05/28/2002) 05/31/2002 211 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file his reply to resp's opp to petr's brief on trial counsel's deficient performance and objs to evidence to & through 6/3/02; Decl of Gail R Weinheimer; Lodged order (rl) (Entered: 06/03/2002) 05/31/2002 212 RESPONSE by resps James Rowland, Daniel Vasquez re objection to evidence [208-1] (rl) (Entered: 06/03/2002) 05/31/2002 213 EX PARTE APPLICATION filed by resps James Rowland, Daniel Vasquez to file resp's reply to petr's opp to resp's brief on trial counsel's deficient performance in excess of the 25-page limitation ; Decl of Robert S Henry; Lodged order & reply (rl) (Entered: 06/03/2002) 05/31/2002 215 REPLY by resps James Rowland, Daniel Vasquez re petr's opp to resp's brief on trial counsel's deficient performance [208-1] (rl) (Entered: 06/06/2002) 05/31/2002 217 ORDER by Judge Ronald Lew granting ex parte application to extend time to file his reply to resp's opp to petr's brief on trial counsel's deficient performance and objs to evidence [211-1] to & through 6/3/02 (rl) (Entered: 06/06/2002) 06/03/2002 214 REPLY by petitioner Francis G Hernandez re resp's opp to petr's brief on trial counsel's deficient performance and objs to evidence [208-1] (rl) (Entered: 06/04/2002) 06/04/2002 216 ORDER by Judge Ronald Lew granting ex parte application to file resp's reply to petr's opp to resp's brief on trial counsel's deficient performance in excess of the 25-page limitation [213-1] (rl) (Entered: 06/06/2002) 06/06/2002 218 JOINT STATUS REPORT by petitioner Francis G Hernandez, defendant Jeanne Woodford on forthwith lodging order (rl) (Entered: 06/07/2002) 06/10/2002 219 EX PARTE APPLICATION filed by petitioner Francis G Hernandez for leave to file the corrected copy of Petr's Opp to Resp's Brief on the merits on the 1st Prong of Petr's Ineffective Assistance of Cnsl Clm fld on 5/17/02 ; Lodged ord & opp; Decl of Edward M Medvene in suppt thereof (wm) (Entered: 06/11/2002) 06/10/2002 496 CORRECTED OPPOSITION to Respondent's BRIEF on the Merits on the First Prong of Petitioner's Ineffective Assistance of Counsel Claim 178 filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 05/01/2006) 06/11/2002 220 ORDER by Judge Ronald Lew IT IS SO ORD that: the Crt direct the ptys to file a joint stip re discov by 8/9/02. In their joint stip, the ptys shall list the witnesses that they intend to call at the hrg along w/a brief description re the nature of the witnesses' testimony (see doc for fur details) (rl) (Entered: 06/13/2002) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 15/46

App. K - 297 9/26/2019 CM/ECF - California Central District 07/03/2002 221 JOINT REQUEST filed by both parties Francis G Hernandez, Jeanne Woodford to vacate order directing filing of discov stip by 8/9/02 (dw) (Entered: 07/11/2002) 07/03/2002 221 REQUEST filed by petitioner, defendant for modification of briefing sched (dw) (Entered: 07/11/2002) 07/23/2002 222 ORDER by Judge Ronald Lew denying request for modification of briefing sched [221- 1]. Petr shall file his request for funds by 9/9/02. The Crt fur orders that the juror depositions shall be lodged NLT 8/1/02. Both parties should be prepared that the Crt will set a schedule that will expeditiously bring this case to a close (rl) (Entered: 07/24/2002) 07/24/2002 224 SUPPLEMENTAL NOTICE of lodging of documents and index of record, purs to local rule 83-17-7 by resps James Rowland, Daniel Vasquez; Lodged depos w/CRD (rl) (Entered: 07/26/2002) 07/25/2002 223 JOINT APPLICATION filed by petitioner Francis G Hernandez, respondent Jeanne Woodford to file PA in excess of 25 page limitation ; Decl of Robert S Henry; Lodged propsd order (rl) (Entered: 07/26/2002) 07/26/2002 225 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file his brief on jury misconduct to & through 7/30/02; Decl of Edward M Medvene; Lodged propsd order (rl) (Entered: 07/29/2002) 07/26/2002 226 STIPULATION filed as to facts re juror misconduct issue (rl) (Entered: 07/29/2002) 07/30/2002 230 PETITIONER'S BRIEF ON JUROR MISCONDUCT (rl) (Entered: 08/02/2002) 07/31/2002 227 POST EVIDENTIARY HEARING BRIEF FILED by resps James Rowland, Daniel Vasquez on juror misconduct [226-1] (rl) (Entered: 08/01/2002) 08/02/2002 228 ORDER by Judge Ronald Lew granting ex parte application to extend time to file his brief on jury misconduct [225-1] to & through 7/30/02 (rl) (Entered: 08/02/2002) 08/02/2002 229 ORDER by Judge Ronald Lew granting application to file post-evidentiary briefs on juror misconduct in excess of 25 page limitation [223-1] (rl) (Entered: 08/02/2002) 08/23/2002 231 Joint APPLICATION filed to exceed page limitation on opp briefs on juror misconduct Lodged ord (dmjr) (Entered: 08/26/2002) 08/23/2002 232 EX PARTE APPLICATION filed by defendant Jeanne Woodford for a 3 working day ext of time to & through 8/28/02 in which to file brief in opp to Petr's brief on jury misconduct currently sched to be fld on 8/23/02 ; Lodged ord; Decl of Robert S Henry in suppt thereof (wm) (Entered: 08/26/2002) 08/27/2002 233 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file petr's opp to resp's post-evidentiary hrg brief on juror misconduct ; Decl of Gail R Weinheimer; Lodged order (rl) (Entered: 08/28/2002) 08/28/2002 234 ORIGINAL SIGNED DECLARATION of Gail R Weinheimer by petitioner Francis G Hernandez re ex parte application to extend time to file petr's opp to resp's post- evidentiary hrg brief on juror misconduct [233-1] (rl) (Entered: 09/03/2002) 08/30/2002 235 OPPOSITION filed by respondents to brief on juror misconduct and objections in lieu of mot in limine [227-1] (rl) (Entered: 09/03/2002) 08/30/2002 239 OPPOSITION BRIEF FILED by petitioner Francis G Hernandez on juror misconduct (rl) (Entered: 09/10/2002) 09/03/2002 236 ORDER by Judge Ronald Lew IT IS HEREBY ORD that both parties are granted permission to file their simultaneous opp briefs on juror misconduct in excess of the 25 page limitation [231-1] (rl) (Entered: 09/04/2002) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 16/46

App. K - 298 9/26/2019 CM/ECF - California Central District

09/03/2002 237 ORDER by Judge Ronald Lew granting ex parte application to extend time to file petr's opp to resp's hrg brief on juror misconduct [233-1] to & through 8/30/02 (rl) (Entered: 09/04/2002) 09/03/2002 238 ORDER by Judge Ronald Lew IT IS HEREBY ORD that the time for Respondent to file its "Opposition to Petr's Brief on Jury Misconduct" is extended up to & incl 8/28/02 [232- 1] (rl) (Entered: 09/04/2002) 09/09/2002 240 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file request for funds ; Decl of Gail R Weinheimer; [propsd] ord (rl) (Entered: 09/10/2002) 09/23/2002 241 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to extend time to file his request for funds to & through 9/25/02; Decl of Gail R Weinheimer; [proposed] Lodged order (rl) (Entered: 09/24/2002) 09/25/2002 242 APPLICATION filed by petitioner Francis G Hernandez for filing under seal Petr's Ex Parte and in camera request for investigative and expert funds (under separate cover); Lodged propsd order & ntc of under seal filing (rl) (Entered: 09/26/2002) 09/26/2002 243 JOINT REQUEST filed by petitioner Francis G Hernandez for clarification of scheduling , or in the alternative jint request for enlargement of time to brief remaining claims ; Lodged propsd order (rl) (Entered: 09/27/2002) 09/27/2002 244 ORDER by Judge Ronald Lew: Petr's ex parte application to extend time to file request for funds to & through 9/23/02 [240-1] is GR (dw) (Entered: 09/30/2002) 09/27/2002 245 ORDER by Judge Ronald Lew upon petr's application [242-1] that petr's ex parte and in camera request for investigative and expert funds [242-1] may be fld under seal. (gk) (Entered: 09/30/2002) 09/27/2002 246 ORDER by Judge Ronald Lew GR petr's ex parte appl for an ext of time to file his Opp to Respondent's Post-Evid Hrg Br on Juror Misconduct, to and through 9/25/02. (pbap) (Entered: 10/01/2002) 09/27/2002 247 NOTICE of under seal filing by petitioner Francis G Hernandez of petr's ex parte and in camera request for investigative and expert funds (under separate cover) (rl) Modified on 10/01/2002 (Entered: 10/01/2002) 10/08/2002 251 MOTION by petitioner Francis G Hernandez for leave to file responses to resp's evidentiary objections on petr's claim of juror misconduct (rl) (Entered: 10/09/2002) 10/09/2002 252 EX PARTE APPLICATION filed by respondent Jeanne Woodford, Warden to clarify respondent's position re "Petr's mot for lv to file responses, etc" (pbap) (Entered: 10/11/2002) 11/20/2002 253 ORDER by Judge Ronald Lew denying motion for leave to file responses to resp's evidentiary objections on petr's claim of juror misconduct [251-1] (rl) (Entered: 11/21/2002) 01/27/2003 254 ORDER RE SCHEDULING by Judge Ronald Lew: IT IS SO ORDERED: The parties shall file a jt stip re discov on or before 3/14/03; ; discovery ddl set on 6/30/03 ; Direct testimony decls & deposition transcripts shall be submitted by 7/31/03; Simultaneously final briefing re the remaining claims in the petn including the prej prong of the ineffective assistance claims must be submitted by 9/15/03; Oppositions to the final briefing shall be filed by 10/15/03; (See doc for fur info) (dw) (Entered: 01/28/2003) 03/03/2003 255 EX PARTE APPLICATION filed by petitioner Francis G Hernandez to modify order regarding scheduling filed 1/27/03 ; Declaration of Edward M Medvene; Lodged https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 17/46

App. K - 299 9/26/2019 CM/ECF - California Central District proposed order (wm) (Entered: 03/04/2003) 03/05/2003 256 ORDER REGARDING EX PARTE APPLICATION TO MODIFY SCHEDULING ORDER by Judge Ronald Lew: The Court grants the request for modification of the scheduling order [255-1] but cautions the parties that it will not grant any further extensions (dw) (Entered: 03/06/2003) 03/05/2003 PLACED IN FILE - NOT USED: [PROPOSED] ORDER (dw) (Entered: 03/07/2003) 04/30/2003 257 JOINT DISCOVERY STATEMENT by petitioner (dw) (Entered: 05/02/2003) 05/06/2003 258 ORDER REGARDING PROPOSED JOINT DISCOVERY STATEMENT by Judge Ronald Lew: The request for copy of the prosecution's entire file is DENIED. Request for discovery is DENIED. Petitioner seeks a subpoena duces tecum for the employment records of Frank Hernandez, Petitioner's adoptive father including insurance records reflecting the family's medical treatment between 1962 and 1995. The Court finds good cause and GRANTS the request. Access shall be limited however to records that existed at the time of Petitioner's trial. (See document for further information) (dw) (Entered: 05/07/2003) 05/30/2003 259 NOTICE of Under Seal Filing by petitioner Francis G Hernandez (dw) (Entered: 06/03/2003) 05/30/2003 261 NOTICE of Under Seal Filing by petitioner Francis G Hernandez (dw) (Entered: 06/03/2003) 05/30/2003 PLACED IN FILE - NOT USED - Application to Modify Scheduling Order (dw) (Entered: 06/06/2003) 06/05/2003 263 ORDER DENYING APPLICATION TO MODIFY SCHEDULING ORDER AND DENYING UNDER SEAL FILING by Judge Ronald Lew: On 5/30/03 Petitioner submitted an under seal application to modify the scheduling order. The Court has considered the reasons given for the latest request for extension and finds that Petitioner has been given sufficient time to conduct investigation and discovery. Accordingly the request is denied. Petitioner's request to submit the application to modify the scheduling order under seal also is denied. Although Petitioner's funding application which was filed concurrently should remain confidential the application to modify the scheduling order affects both parties and may not be filed under seal. (dw) (Entered: 06/06/2003) 06/05/2003 PLACED IN FILE - NOT USED: Order for Under Seal Filing of the Application to Modify Scheduling Order (dw) (Entered: 06/09/2003) 06/05/2003 265 ORDER FOR UNDER SEAL FILING OF PETITIONER'S SUPPLEMENTAL EX PARTE AND IN CAMERA REQUEST FOR INVESTIGATIVE FUNDS by Judge Ronald Lew: IT IS HEREBY ORDERED that Petitioner's Supplemenatal Ex Parte and In Camera Request for Investigative Funds may be filed under seal (dw) (Entered: 06/10/2003) 06/20/2003 267 EX PARTE APPLICATION filed by defendant for order enforcing joint discovery statement to limit witnesses ; Declaration of Robert S. Henry; Exhibits; Lodged order (dw) (Entered: 06/23/2003) 06/24/2003 268 RESPONSE by petitioner to ex parte application for order enforcing joint discovery statement to limit witnesses [267-1] (dw) (Entered: 06/25/2003) 06/24/2003 268 REQUEST filed by petitioner for modification of scheduling order; Lodged order (dw) (Entered: 06/25/2003) 06/25/2003 269 Supplement to Ex Parte Application for Order Enforcing Joint Discovery Statement etc. https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 18/46

App. K - 300 9/26/2019 CM/ECF - California Central District by defendant to ex parte application for order enforcing joint discovery statement to limit witnesses [267-1] (dw) (Entered: 06/26/2003) 06/25/2003 270 Supplemental Declaration by petitioner in support of Petitioner's Response to ex parte application for order enforcing joint discovery statement limit witnesses [267-1], ex parte application to modify order regarding scheduling filed 1/27/03 [255-1] (dw) (Entered: 06/26/2003) 06/30/2003 271 PETITIONER Fracis G. Hernandez update re respondents ex parte application for discovery cutoff; Third supplemental, Declaration of Edward M. Medvene (rm) (Entered: 07/02/2003) 07/02/2003 272 ORDER RE RESPONDENT'S EX PARTE APPLICATION FOR ORDER ENFORCING JOINT DISCOVERY STATEMENT TO LIMIT WITNESSES by Judge Ronald Lew: The Court has considered Respondent's Ex Parte Application for order enforcing joint discovery statement to limit witnesses [267-1] filed on 6/20/03. ; 1) The lay witnesses to be introducted by Petitioner in his case-in-chief shall be limited to those witnesses identified in the Joint Discovery Statment filed on 4/30/03 and the other lay witnesses identified on or before 6/30/03 so long as their declarations are provided to Respondent by 7/15/03. 2) The lay witnesses to be introduced by Respondent shall be limited to the witnesses identified in its final witness list provided to Petitioner by 7/25/03 3) Both parties shall file their final witness lists with the Court by 7/25/03. 4) The expert witnesses to be intorduced by Petitioner in his case-in-chief shall be limited to those experts disclosed to Respondent on or before 6/30/03 so long as their declarations are filed on or before 8/15/03. 5) Respondent shall file a list of rebuttal witnesses to Petitioner's list of expert witnesses on or before 8/29/03. 6) Discovery cutoff date shall be extended form 8/15/03 to 9/30/03 . 7) The parties shall submit the declarations and deposition transcripts to the Court by 10/30/03. 8) All lay witnesses depositions must be completed by the new discovery cut-off date of 9/30/03. (See document for further information) (dw) (Entered: 07/03/2003) 07/02/2003 PLACED IN FILE - NOT USED proposed order (ab) (Entered: 07/03/2003) 07/02/2003 PLACED IN FILE - NOT USED proposed order limiting petitioners witness lists (ab) (Entered: 07/03/2003) 07/02/2003 273 MOTION by defendant for leave to issue subpoena duces tecum , to take deposition of death row inmate represented by counsel ; and request to allow appearance and briefing on motion by counsel (dw) (Entered: 07/07/2003) 07/14/2003 274 EX PARTE APPLICATION filed by petitioner Francis G Hernandez for a two day extension of time in which to file response to motion for leave to conduct discovery ; declaration of Gail R Weinheimer; Lodged ORDER (ab) (Entered: 07/15/2003) 07/15/2003 275 ORDER by Judge Stephen V. Wilson for Judge Ronald S.W. Lew: Petitioner's Ex Parte Application for 2 Day Extension of Time in which to file his Response to Respondent's Motion for Leave to Issue Subpoena Duces Tecum and to Take Deposition of Death Row Inmate Represented by Counsel to and through 7/16/03 is granted. It is further ordered that Respondent's time for filing a Reply will also be extended by 2 days. The Hearing Date of 7/28 is vacated; The motions will be heard on 8/4 at 9:00am. Petitioner is to notify all affected parties (dw) (Entered: 07/16/2003) 07/16/2003 276 RESPONSE by Third Party Douglas Clark to motion for leave to issue subpoena duces tecum and take deposition of Douglas Clark [273-1] (dw) (Entered: 07/17/2003) 07/16/2003 277 OPPOSITION by petitioner to Respondent's motion for leave to issue subpoena duces tecum and take deposition of death row inmate represented by counsel [273-1] (dw) (Entered: 07/17/2003) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 19/46

App. K - 301 9/26/2019 CM/ECF - California Central District 07/18/2003 278 NOTIFICATION OF PETITIONER'S SUBMISSION OF UNTIMELY DECLARATION IN VIOLATION OF THIS COURT'S ORDER ETC by defendant (dw) (Entered: 07/21/2003) 07/21/2003 279 EX PARTE APPLICATION filed by petitioner Francis G Hernandez for 4 days in which to file response to respondent's moton re Declaration of Naomi Hernandez ; Declaration of Edward M. Medvene in support thereof; Lodged proposed order (dw) (Entered: 07/22/2003) 07/23/2003 280 ORDER by Judge Ronald Lew: Petitioner's Ex Parte Application for 4 Days in which to file Response to Respondent's Motion Re Declaration of Naomi Hernandez [279-1] to and including 7/25/03 is granted (dw) (Entered: 07/24/2003) 07/24/2003 281 REPLY by Respondent to Opposition of Petitioner and Third Party Clark to motion for leave to issue subpoena duces tecum [273-1] (dw) (Entered: 07/25/2003) 07/25/2003 282 RESPONSE by petitioner to Respondent's Notification of Petitioner's Submission of Untimely Declaration Allegedly in violation of this Court's Order etc. [278-1]; Declaration of Edward M. Medvene (dw) (Entered: 07/28/2003) 07/25/2003 283 FINAL LAY WITNESS list submitted by defendant (dw) (Entered: 07/28/2003) 07/25/2003 284 FINAL WITNESS list submitted by petitioner (dw) (Entered: 07/28/2003) 07/29/2003 287 NOTICE OF DISCREPANCY AND ORDER by Judge Ronald Lew ordering Letter from Inmate Douglas Clark addressed to judge dated 7/20/03 submitted received on 7/24/03 is not to be filed but instead rejected; Denial based on: LR 11-4.1 no copy provided for judge. FRCvP Rule 5(d) No proof of service attached to document. Letter format, LR 83- 2.11; Non party submission (dw) (Entered: 08/04/2003) 07/31/2003 JOINT STIPULATION filed by respondent, petitioner re Depositions of Petitioner's Lay Witnesses (dw) (Entered: 08/01/2003) 07/31/2003 286 JOINT STIPULATION OF PARTIES filed by petitioner, respondent re depositions of petitioner's lay witnesses (dw) (Entered: 08/01/2003) 08/01/2003 285 MINUTES (IN CHAMBERS) by Judge Ronald Lew: Respondent's Motion for leave to issue subpoena duces tecum; To Take Deposition of Death Row Inmate Represented by Counsel; and Request to Allow Appearance and Briefing on Motion by Counsel [273-1] is taken UNDER SUBMISSION by the Court. No appearances are necessary on 8/4/03. The Court's order will issue; CR: Not Present (dw) (Entered: 08/01/2003) 08/05/2003 288 ORDER RE RESPONDENT'S NOTIFICATION OF PETITIONER'S SUBMISSION OF UNTIMELY DECLARATION by Judge Ronald Lew: The Court has considered Respondent's Notification of Petitioner's Submission of Untimely Declaration in Violation of This Court's Order and the corresonding response. The Court declines to exclude witness Naomi Kuhl Hernandez from the evidentiary hearing. The parties have been aware of Naomi Kuhl Hernandez's status as a lay witness in this case for quite some time and the untimely disclosure of her declaration has not caused any harm. Respondent shall have until 8/15/03 to file either an amended witness list or a notice that her witness list has not changed. (dw) (Entered: 08/06/2003) 08/07/2003 289 ORDER DENYING RESPONDENT'S MOTION FOR DISCOVERY by Judge Ronald Lew denying motion for leave to issue subpoena duces tecum [273-1], denying motion to take deposition of death row inmate represented by counsel [273-2]. Request for Discovery is DENIED (See document for further information) (dw) (Entered: 08/08/2003) 08/13/2003 290 EX PARTE APPLICATION filed by respondent Arthur Calderon for order limiting scope https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 20/46

App. K - 302 9/26/2019 CM/ECF - California Central District of evidentiary hearing to law witnesses only , and to exclude all expert testimony ; Lodged PROPOSED ORDER (ab) (Entered: 08/14/2003) 08/15/2003 291 UNOPPOSED EX PARTE APPLICATION filed by petitioner for 3 business days extension of time in which to file expert declarations ; Declarations of Edward M. Medvene; Lodged proposed order (dw) (Entered: 08/18/2003) 08/15/2003 292 DECLARATION of Dorothy Otnow Lewis by petitioner re ex parte application for 3 business days extension of time in which to file expert declarations [291-1] (dw) (Entered: 08/18/2003) 08/15/2003 293 NOTICE OF DISCREPANCY AND ORDER by Judge Ronald Lew ordering Letter from Douglas Clark addressed to Judge Lew, dated 8/1/03 submitted by petitioner Francis G Hernandez received on 8/6/03 is not to be fld but instead rejected; Denial based on: Letter format 83-2.11 (rl) (Entered: 08/21/2003) 08/20/2003 294 OPPOSITION by petitioner to Respondent's ex parte application for order limiting scope of evidentiary hearing to law witnesses only [290-1]; Declaration of Edward M. Medvene; Exhibit (dw) (Entered: 08/21/2003) 08/20/2003 295 DECLARATION of Michael P. Maloney PH.D by petitioner re opposition [294-1] (dw) (Entered: 08/21/2003) 08/20/2003 296 DECLARATION of Sheila Balkan Ph.D by petitioner to Opposition to Respondent's ex parte application for order limiting scope of evidentiary hearing to law witnesses only [290-1] (dw) (Entered: 08/21/2003) 08/20/2003 297 DECLARATION of June Madsen Clausen Ph.D by petitioner to Opposition to Respondent's ex parte application for order limiting scope of hearing to law witnesses only [290-1] (dw) (Entered: 08/21/2003) 08/27/2003 298 ORDER REGARDING SCHEDULING OF FINAL BRIEFING by Judge Ronald Lew: The Court further orders the parties to submit their simultaneous final briefing by 12/5/03. Oppositions shall be filed by 1/9/04. No replies will be received. (See document for further information) (dw) (Entered: 08/28/2003) 08/27/2003 299 ORDER by Judge Ronald Lew: Petitioner's Ex Parte Application for a Three Business Day Extension of Time in which to file the declarations of his experts to and through 8/20/03 [291-1] is granted. (dw) (Entered: 08/28/2003) 08/27/2003 PLACED IN FILE - NOT USED: Order Limiting Scope of Evidentiary Hearing to Lay Witnesses only and Excluding Expert Testimony (dw) (Entered: 08/28/2003) 08/27/2003 300 ORDER REGARDING RESPONDENT'S EX PARTE APPLICATION TO LIMIT SCOPE OF EVIDENTIARY HEARING AND EXCLUDE EXPERT TESTIMONY by Judge Ronald Lew: Under Federal Rule of Civil Procedure 35(a) the Court may order a mental examination where the mental condition of a party is in controversy if good cause is shown. The Court further finds there is good cause for Respondent to conduct a mental examination. The Court directs Petitioner to subject himself to a mental examination by Respondent's expert as soon as possible and before the discovery cut-off date. The Court further finds that the presence of counsel will hamper the ability of the examiner to have meaningful one-on-one communication with Petitioner and may cause counsel to become a witness to the proceedings. Therefore Petitioner shall be examined by Respondent's expert without counsel present. (See document for further information) (dw) (Entered: 08/29/2003) 08/29/2003 301 MOTIONS by defendant to strike expert declarations , and for order requiring petitioner to submit to a mental examination ; motion hearing set for 9:00 9/22/03 (dw) (Entered: 09/03/2003) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 21/46

App. K - 303 9/26/2019 CM/ECF - California Central District

08/29/2003 302 REPLY by defendant to Petitioner's Opposition to ex parte application [290-2]; Declaration of Robert S Henry (dw) (Entered: 09/03/2003) 08/29/2003 303 LIST OF WITNESSES IN REBUTTAL TO PETITIONER'S EXPERT WITNESSES submitted by defendant (dw) (Entered: 09/03/2003) 09/05/2003 304 UNSCHEDULED STATUS REPORT by defendant (dw) (Entered: 09/08/2003) 09/05/2003 304 REQUEST filed by defendant for resetting of discovery cut off date ; Declaration of Robert S Henry; Lodged proposed order (dw) (Entered: 09/08/2003) 09/08/2003 305 OPPOSITION by petitioner to Respondent's motion to strike expert declarations [301-1] and for an Order Requiring Petitioner to Submit to a Mental Examination (dw) (Entered: 09/09/2003) 09/15/2003 306 REPLY by respondent Jeanne Woodford to opposition to motion to strike expert declarations [301-1] (pbap) (Entered: 09/16/2003) 09/18/2003 307 ORDER DENYING MOITON TO STRIKE EXPERT DECLARATIONS AND GRANTING REQUEST TO RESET DISCOVERY CUT-OFF DATE by Judge Ronald Lew: 1) Respondent's motion to strike expert declarations [301-1] is denied; 2) Respondent's Request for an Order requiring Petitioner to submit to a mental health evaluation [301-2] is moot. 3) Respondent's motion to extend discovery-cutoff date [304- 1] is granted. Respondent must provide Dr. Martell's report to Peititioner by 12/15/03. Dr. Martell's deposition must be taken by 1/16/04. Any rebuttal testimony must be taken by 2/20/03 on which date discovery shall be concluded. The Court further orders that deposition transcripts and witness declarations shall be provdied to he court by 3/19/04. Final briefing must be submitted by 4/16/04 and oppositions must be filed by 5/14/04. (See document for further information) (dw) (Entered: 09/19/2003) 09/18/2003 PLACED IN FILE NOT USED respondent's proposed order resetting discovery cut off date and briefing schedule, lodged 9/5/03. (gk) (Entered: 09/22/2003) 09/29/2003 308 MOTIONS by defendant to strike direct testimony of Dorothy Otnow Lewis for Refusal to Make Witness Available for Cross Examination , and for reconsideration of a) Court's Previous Denial of Motion to Strike and b) Limit on Time for Deposition of Lewis; Declaration of Robert S. Henry (dw) (Entered: 09/30/2003) 09/29/2003 309 NOTICE OF INTENT AND EX PARTE APPLICATION filed by defendant Jeanne Woodford for Expedited order Compelling petitioner to a) Submit to deposition and b) Disclose Identities , and make available for deposition John Does I thru X ; Declaration of Robert S Henry (dw) (Entered 09/30/2003) 10/07/2003 310 OPPOSITION by petitioner to Respondent's ex parte application a) to Depose Additional Witnesses and Compel Deposition of Petitioner and b) Disclose Identities of or make available for deposition John Does I-X; Declaration of Ronald A Di Nicola in support thereof [309-1] [309-2] (dw) (Entered: 10/08/2003) 10/08/2003 311 REPLY by respondent to Petitioner's Opposition to Respondent's Ex Parte Application to Depose Petitioner and to Compel Disclosure of Identities etc [309-1] (dw) (Entered: 10/09/2003) 10/08/2003 312 PROOF OF SERVICE by petitioner on 10/7/03 of Petitioner's Opposition to Respondent's Ex Parte Application A) to Depose Additional Witnesses and Compel Deposition to Petitioner and B) to Disclose Identities of or make available for deposition John Does I-X; Declarations of Ronald A Di Nicola in support thereof (dw) (Entered: 10/09/2003)

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App. K - 304 9/26/2019 CM/ECF - California Central District 10/10/2003 313 RESPONSE by petitioner to Respondent's Reply to Petitioner's Ex parte application to Depose Petitioner and to Compel Disclosure of Identities etc [309-1] (dw) (Entered: 10/14/2003) 10/14/2003 314 RESPONSE by petitioner to motion to strike direct testimony of Dr Lewis for Refusal to Make Witness Available for Cross Examination [308-1] (dw) (Entered: 10/15/2003) 10/14/2003 315 REPLY by defendant to Petitioners Response re ex parte application to Depost Petitioner and to Compel Disclosure of Identities [309-1] (dw) (Entered: 10/15/2003) 10/15/2003 316 REPLY by respondents Arthur Calderon, Jeanne Woodford to response to motion to strike direct testimony of Dorothy Otnow Lewis for Refusal to Make Witness for Cross Examination [308-1], motion for reconsideration of a) Court's Previous Denial of Motion to Strike and b) Limit on Time for Deposition of Lewis; [308-2] (ab) (Entered: 10/16/2003) 10/29/2003 317 ORDER REGARDING REQUEST TO COMPEL PETITIONER TO SUBMIT TO DEPOSITION DISCLOSE IDENTITIES OF INDIVIDUALS STRIKE TESTIMONY OF EXPERT AND RECONSIDER LENGTH OF DEPOSITION by Judge Ronald Lew: The Court authorizes the deposition of Naomi Schilling Hernandez Kuhl, David Hernandez and Morris Silverstein. The Court denies Respondent's request to depose John Larkin. The Court also issues a protective order pursuant to Bittaker v Woodford 331 F.3d. 715 (9th Circuit 2003) All discovery granted to Respondent. The Court grants Respondent's motion to the following extent: Any information regarding the identity of Petitioner's mother that was provided by third parties to his present counsel and their agents is not protected by the attorney-client privilege and must be disclosed to Respondent. [308-1] [308-2] [309-1] [309-2] (See document for further information) (dw) (Entered: 10/29/2003) 10/29/2003 PLACED IN FILE - NOT USED PROPOSED ORDER TO COMPEL (pj) (Entered: 10/30/2003) 11/04/2003 318 MAIL Returned [317-1] addressed to J Bruce Robertson (shb) (Entered: 11/05/2003) 11/12/2003 324 APPLICATION filed by petitioner for filing under seal request for funding for depositions Lodged order (dmjr) (Entered: 11/17/2003) 11/12/2003 325 NOTICE by petitioner of under seal filing of rquest for funding for depositions. Lodged order (dmjr) (Entered: 11/17/2003) 11/13/2003 319 NOTICE of Deposition of Morris Silverstein by defendant (dw) Modified on 11/14/2003 (Entered: 11/14/2003) 11/13/2003 320 NOTICE of Deposition of Naomi Hernandez Kuhl by petitioner (dw) (Entered: 11/14/2003) 11/13/2003 321 NOTICE of Deposition of Francis G Hernandez by respondent (dw) (Entered: 11/14/2003) 11/13/2003 322 NOTICE of Deposition of Dr Jane Clausen by respondent (dw) (Entered: 11/14/2003) 11/13/2003 323 NOTICE of Deposition of David Hernandez by Respondent (dw) (Entered: 11/14/2003) 11/17/2003 326 AMENDED NOTICE OF DEPOSITION by defendant (dw) (Entered: 11/18/2003) 11/18/2003 328 AMENDED NOTICE OF DEPOSITION by Respondent (dw) (Entered: 11/21/2003) 11/20/2003 329 AMENDED NOTICE OF DEPOSITION by Respondent (dw) (Entered: 11/21/2003) 11/21/2003 327 ORDER FOR UNDER SEAL FILING OF PETITIONER'S EX PARTE AND IN CAMERA REQUEST FOR FUNDING UNDER DEPOSITIONS by Judge Ronald Lew: https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 23/46

App. K - 305 9/26/2019 CM/ECF - California Central District IT IS HEREBY ORDERED that Petitioner's Ex Parte and In Camera Request for Funding for Depositions [324-1] may be filed under seal (dw) (Entered: 11/21/2003) 11/21/2003 PLACED IN FILE - NOT USED: [PROPOSED] ORDER lodged on 11/12/03 (dw) (Entered: 11/24/2003) 11/26/2003 332 NOTICE OF DEPOSITION by defendant (dw) (Entered: 12/01/2003) 12/02/2003 344 FURTHER RESPONSE to Respondent's Ex Parte Application Re: Discovery Cutoff; 334 ; Second Supplemental Declaration of Edward M Medvene; Exhibit - Nunc pro tunc to 6/27/01 filed by Petitioner Francis G Hernandez. (dw, ) (Entered: 01/14/2004) 12/08/2003 334 UNOPPOSED EX PARTE APPLICATION filed by respondent Jeanne Woodford to amend discovery schedule ; Declaration of Robert S Henry; Lodged Proposed Order (mch) (Entered: 12/11/2003) 12/09/2003 333 EX PARTE REQUEST filed by defendant for expedited ruling on request for permission to depose Dr. Faye Girsh and Dr. Amer Rayyes , and for schedule to conduct such depositions ; Memorandum of Points and Authorities; Declaration of Robert S. Henry (dw) (Entered: 12/10/2003) 12/12/2003 335 OPPOSITION by petitioner to Respondent Ex Parte Request for expedited ruling on request for permission to depose Dr. Faye Girsh and Dr. Amer Rayyes [333-1] and for Schedule to conduct such depostions (dw) (Entered: 12/15/2003) 12/15/2003 336 REPLY by defendant to Opposition to Ex Parte Application for expedited ruling on request for permission to depose Dr. Faye Girsh and Dr. Amer Rayyes [333-1] (dw) (Entered: 12/16/2003) 12/18/2003 337 ORDER by Judge Ronald Lew: Petitioner's Ex Parte Application to File a Corrected Copy of Petitioner's Opposition to Respondent's Brief on the Merits of Prong One of Petitioner's Ineffective Assistance of Claim [219-1] is granted (dw) (Entered: 12/19/2003) 12/18/2003 338 ORDER REGARDING MISCELLANEOUS MATTERS by Judge Ronald Lew: Petitioner's Ex parte application to extend time to file his request for funds [241-1] is denied as moot. Respondent's Ex parte application to to clarify her position regarding Petitioner's motion for leave to file responses [251-1] is denied as moot. (dw) (Entered: 12/19/2003) 12/31/2003 339 NOTICE of Under Seal Filing of [Proposed] Order Re Petitioner's Supplemental Ex Parte and In Camera Application for Funding for Expert Despositions filed by petitioner Francis G Hernandez. Lodged proposed order (dw, ) (Entered: 01/08/2004) 12/31/2003 340 NOTICE of Under Seal Filing of Petitioner's Supplemental Ex Parte and In Camera Application for Expert Depositions filed by petitioner Francis G Hernandez. (dw, ) (Entered: 01/08/2004) 12/31/2003 354 APPLICATION For Filing Under Seal [Proosed] Order Re Petitioner's Supplemental Ex Parte and In Camera Application for Funding for Expert Depositions [Filed Under Seal] filed by Petitioner Francis G Hernandez. Lodged Proposed Order. (dw, ) (Entered: 01/30/2004) 01/06/2004 343 NOTICE of the parties' agreement scheduling expert depositions filed by petitioner Francis G Hernandez. (sv) (Entered: 01/13/2004) 01/12/2004 PLACED IN FILE - NOT USED re [Proposed] Order Re Petitioner's Supplemental Ex Parte and In Camera Application for Funding for Expert Depositions submitted by Petitioner Francis G Hernandez. (dw, ) (Entered: 01/17/2004) 01/20/2004 345 ORDER Denying Respondent's Ex Parte Requests to Depose Drs. Faye Grisch and Amer https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 24/46

App. K - 306 9/26/2019 CM/ECF - California Central District Rayyes and to Amend the Court Ordered Discovery Schedule by Judge Ronald S.W. Lew: The Court having read and carefully considered the pleadings DENIES both of Respondent's requests 333 334 (dw, ) (Entered: 01/21/2004) 01/20/2004 346 NOTICE of Deposition filed by Respondent Jeanne Woodford. (dw, ) (Entered: 01/25/2004) 01/20/2004 347 NOTICE of Deposition (of Sheila Balkan) filed by Respondent Jeanne Woodford. (dw, ) (Entered: 01/25/2004) 01/20/2004 351 NOTICE of Under Seal Filing of Petitioner's Renewed Supplemental Ex Parte and In Camera Application for Funding for Expert Assistance and Second Counsel for Expert Deposition filed by Petitioner Francis G Hernandez. (dw, ) (Entered: 01/26/2004) 01/28/2004 PLACED IN FILE - NOT USED [PROPOSED] ORDER RE DISCLOSURE OF IDENTITIES ISSUES SCHEDULED submitted by Respondent Jeanne Woodford. (dw, ) (Entered: 02/02/2004) 01/30/2004 355 ORDER FOR UNDER SEAL FILING OF PETITIONER'S RENEWED SUPPLEMENTAL EX PARTE AND IN CAMERA APPLICATION FOR FUNDING FOR EXPERT ASSISTANCE AND SECOND COUNSEL FOR EXPERT DEPOSITION by Judge Ronald S.W. Lew: IT IS HEREBY ORDERED that Petitioner's Renewed Supplemental Ex Parte and In Camera Application for Funding for Expert Assistance and Second Counsel for Expert Deposition may be filed under seal(dw, ) (Entered: 02/02/2004) 01/30/2004 PLACED IN FILE - NOT USED re [PROPOSED] ORDER [Filed Under Seal] submitted by Petitioner Francis G Hernandez. (dw, ) (Entered: 02/04/2004) 02/19/2004 357 JOINT APPLICATION TO MODIFY SCHEDULING ORDER BECAUSE OF DR. MALONEY'S MEDICAL UNAVAILABILITY; ORDER by Judge Ronald S.W. Lew: IT IS SO ORDERED: 1) Rebuttal testimony must be taken by 4/9/04 on which date discovery shall be concluded; 2) Deposition transcripts and witness declarations shall be provided to the Court by 5/7/04. Final briefing must be submitted by 6/6/04 and oppositions must be filed by 7/5/04. No replies shall be received(dw, ) (Entered: 02/20/2004) 02/19/2004 358 DECLARATION of Daniel A. Martell, PH.D. filed by Respondent Jeanne Woodford. (dw, ) (Entered: 02/20/2004) 03/09/2004 359 EX PARTE MOTION to Compel Disclosure of Billing Records and Notes Reviewed by Dr. Martell Prior to Testifying; Declaration of Edward M. Medvene; filed by Petitioner Francis G Hernandez. (dw, ) (Entered: 03/11/2004) 03/09/2004 360 APPLICATION For Under Seal Filing of Petitioner's Ex Parte and In Camera Application for Funding for Expert Assistance to Present Rebuttal Evidence; filed by Petiitoner Francis G Hernandez. Lodged Order. (dw, ) (Entered: 03/11/2004) 03/09/2004 361 NOTICE of Under Seal Filing of Petitioner's Ex Parte and In Camera Application for Funding For Expert Assistance to Present Rebuttal Evidence filed by Petitioner Francis G Hernandez. (dw, ) (Entered: 03/11/2004) 03/11/2004 363 NOTICE of filing Under Seal filed by Respondent Jeanne Woodford. (pbap, ) (Entered: 03/18/2004) 03/11/2004 365 OPPOSITION to EX PARTE MOTION to Compel Disclosure of Billing Records and Notes Reviewed by Dr. Martell Prior to Testifying; Declaration of Edward M. Medvene; 359 filed by Respondent Jeanne Woodford. (pbap, ) (Entered: 03/18/2004)

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App. K - 307 9/26/2019 CM/ECF - California Central District 03/15/2004 366 ORDER FOR UNDER SEAL FILING OF PETITIONER'S EX PARTE AND IN CAMERA APPLICATION FOR FUNDING FOR EXPERT ASSISTANCE TO PRESENT REBUTTAL EVIDENCE AND ORDER by Judge Ronald S.W. Lew: IT IS HEREBY ORDERED that Petitioner's Ex Parte and In Camera Application for Funding for Expert Assitance to Present Rebuttal Evidence 360 may be filed under seal.(dw, ) (Entered: 03/19/2004) 03/19/2004 368 REPLY to OPPOSITION to EX PARTE MOTION to Compel Disclosure of Billing Records and Notes Reviewed by Dr. Martell Prior to Testifying 359 filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 03/26/2004) 03/23/2004 369 Petitioner's Withdrawal of Testimony of Michael P. Maloney, Ph.D. 295 and Joint Request to Strike Testimony. (gk, ) (Entered: 04/05/2004) 04/06/2004 371 JOINT APPLICATION to Modify Scheduling Order 357 . Lodged Proposed Order. (gk, ) (Entered: 04/14/2004) 04/07/2004 370 ORDER Re: Petitioner's Ex Parte Application to Compel Production of Documents for Discovery by Judge Ronald S.W. Lew. The Court having read and carefully considered the pleadings GRANTS Petitioner's request that the document filed under seal be produced by Respondent for discovery. The Court GRANTS Petitioner's request for discovery of the intake sheet. The Court DENIES Respondent's request because Respondent has failed to provide good cause for the request. (EX PARTE APPLICATION to Compel 359 ) (dw, ) (Entered: 04/13/2004) 04/15/2004 374 EX PARTE APPLICATION to Compel Disclosure and Production of Intake Notes of Dr. Dorothy O. Lewis, Dr. June Clausen and Dr. Sheila Balkan filed by Respondent Jeanne Woodford. Lodged Proposed Order. (kca, ) (Entered: 04/19/2004) 04/16/2004 372 ORDER TO MODIFY SCHEDULING ORDER by Judge Ronald S.W. Lew: The parties Application to Modify Scheduling Order 371 is hereby granted as follows: Rebuttal testimony must be taken by 5/9/04 on which date discovery shall be concluded. Deposition transcripts and witness declarations shall be provided to the Court by 6/8/04. Final briefing must be submitted by 7/8/04 and oppositions must be filed by 8/7/04. No replies shall be received(dw, ) (Entered: 04/19/2004) 04/26/2004 375 REPLY to Attorney General's Motion for Discovery 374 filed by petitioner Francis G. Hernandez. (gk, ) (Entered: 05/05/2004) 05/05/2004 376 JOINT APPLICATION To Modify Scheduling Order filed by Petitioner Francis G Hernandez, Respondent Jeanne Woodford. Lodged Proposed Order. (dw, ) (Entered: 05/14/2004) 05/25/2004 377 ORDER by Judge Ronald S.W. Lew upon the parties' 376 Joint Applicationto Modify Scheduling Order that rebuttal testimony must be taken by 6/8/2004, on which date discovery shall be concluded. Deposition transcripts and witness declarations shall be provided to the Court by 7/8/2004. Final briefing on the prejudice prong of the ineffective assistance of counsel claim must be submitted by 8/7/2004, and oppositions must be filed by 9/6/2004. No replies shall be received. (gk, ) (Entered: 05/26/2004) 05/25/2004 378 MINUTES (In Chambers) by Judge Ronald S.W. Lew: Respondent's Ex Parte Application to Compel Disclosure and Production of Intake Notes 374 is denied on the grounds that this Court cannot compel disclosure of documents where there is no evidence the documents exist and that petitioner is deliberating withholding them. Court Reporter: Not Present. (gk, ) (Entered: 05/26/2004) 05/25/2004 PLACED IN FILE - NOT USED re Proposed Order re production of documents for discovery submitted by Respondent Jeanne Woodford. Lodged 4/15/2004. (jp, ) (Entered: https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 26/46

App. K - 308 9/26/2019 CM/ECF - California Central District 06/03/2004) 06/04/2004 379 JOINT APPLICATION to Modify Scheduling Order filed by Petitioner Gail R Weinheimer and Respondent Jeanne Woodford Lodged Order. (dw, ) (Entered: 06/08/2004) 06/14/2004 380 ORDER TO MODIFY SCHEDULING ORDER by Judge Ronald S.W. Lew: The parties Joint Application to Modify Scheduling Order is hereby granted as follows: Rebuttal testimony must be taken by 7/8/04 on which date discovery shall be concluded. Deposition transcripts and witness declarations shall be provided to the Court by 8/7/04. Final briefing on the prejudice prong of the ineffective assistance of counsel claim must be submited by 9/6/04 and oppositions must be filed by 10/6/04. No replies shall be received. (dw, ) (Entered: 06/15/2004) 07/07/2004 381 JOINT APPLICATION to Modify Scheduling Order 380 filed by Petitioner Francis G Hernandez and Respondent Jeanne Woodford.Lodged Order (dw, ) (Entered: 07/13/2004) 07/22/2004 382 NOTICE of Under Seal Filing filed by Petitioner Francis G Hernandez. (dw, ) (Entered: 07/26/2004) 07/26/2004 384 ORDER MODIFYING SCHEDULING ORDER by Judge Ronald S.W. Lew: IT IS HEREBY ORDERED that the Scheduling Order filed 6/14/04 is hereby modified as follows: Rebuttal testimony must be taken by 9/15/04 on which date discovery shall be concluded. Deposition transcripts and witness declarations shall be provided to the Court by 10/15/04. Final briefing on the prejudice prong of the ineffective assistance of counsel claim must be submitted by 11/15/04 and oppositions must be filed by 12/15/04. No replies shall be received. (Related to 123 ) (dw, ) (Entered: 07/27/2004) 08/02/2004 386 APPLICATION For Under Seal Filing of Petitioner's Revised Ex Parte And In Camera Application For Funding For Respondent's Deposition of Petitioner's Rebuttal Expert Dr Ruben Gur (Under Separate Cover) filed by Respondent Francis G Hernandez. Lodged Order and Ex Parte Application. (dw, ) (Entered: 08/04/2004) 08/02/2004 387 NOTICE of Under Seal Filing of Petitioner's Revised Ex Parte and In Camera Application For Funding For Respondent's Deposition of Petitioner's Rebuttal Expert Dr Ruben Gur filed by Petitioner Francis G Hernandez. (dw, ) (Entered: 08/04/2004) 08/12/2004 388 ORDER by Judge Ronald S.W. Lew upon Petitioner's Application For Under Seal Filing of Petitioner's Revised Ex Parte And In Camera Application 386 that Petitioner's Revised Ex Parte and In Camera Application For Funding For Respondent's Deposition of Petitioner's Rebuttal Expert, Dr. Ruben Gur may be filed under seal. (gk, ) (Entered: 08/13/2004) 08/12/2004 391 MINUTES - Proceedings by Judge Ronald S.W. Lew: Given the narrow focus of the evidentiary hearing, the parties are advised that a showing of good cause is required under Rule 6(a) of the Rules Governing Habeas Corpus Cases pursuant to 2254 for any future depositions and for any deposition that is conducted beyond the presumptive seven hour day established by the F.R.Civ.P. 30(d)(2). Court Reporter: None. (gk, ) (Entered: 08/13/2004) 08/12/2004 SEALED DOCUMENT - Proposed order. (pbap, ) (Entered: 08/13/2004) 08/13/2004 394 NOTICE OF UNDER SEAL FILING filed by Petitioner Francis G Hernandez. (dw, ) (Entered: 08/17/2004) 08/20/2004 397 EX PARTE APPLICATION for Seven Hour or Greater Deposition, or in the alternative, to Preclude Consideration of Paragraphs 11 and 12 of Declaration of Reuben Gur, Ph.d.; Exhibits filed by Repondent Jeanne Woodford. Lodged order. (pbap, ) (Entered: 08/23/2004) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 27/46

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08/25/2004 398 RESPONSE to Ex Parte Application for Seven Hour or Greater Deposition, or in the alternative, to Preclude Consideration of Paragraphs 11 and 12 of Declaration of Reuben Gur 397 filed by petitioner Francis G. Hernandez. (gk, ) (Entered: 08/26/2004) 08/26/2004 399 REPLY to Petitioner's Response to "Ex Parte Application for Seven Hour or Greater Deposition, etc." 397 filed by respondent Jeanne Woodford. (gk, ) (Entered: 08/27/2004) 09/10/2004 400 JOINT APPLICATION to Modify Scheduling Order filed by Petitioner Francis G Hernandez and Respondent Jeanne Woodford Lodged Proposed Order. (dw, ) (Entered: 09/13/2004) 09/24/2004 401 MINUTES by Judge Ronald S.W. Lew: The Court having carefully reviewed and considered Respondent's request to preclude consideration of the evidence contained in paragraphs 11 and 12 in Dr. Ruben Gur's declaration DENIES the request. The Court GRANTS Respondent's request to depose Dr. Gur for a period to not exceed 2 days. (Related to EX PARTE APPLICATION for Order 397 ) Court Reporter: None. (dw, ) (Entered: 09/28/2004) 09/27/2004 PLACED IN FILE - NOT USED re proposed order precluding consideration of evidence contained in declaration submitted by Respondent Jeanne Woodford. (pbap, ) (Entered: 09/28/2004) 09/28/2004 404 ORDER To Modify Scheduling Order by Judge Ronald S.W. Lew: Parties Joint Application to Modify Scheduling Order is hereby granted as follows: Rebuttal tesimony must be taken by 10/31/04 on which date discovery shall be concluded. Deposition transcripts and witness declarations shall be provided to the Court by 11/30/04. Final briefing on the prejudice prong of the ineffective assistance of counsel claim must be submitted by 1/30/05 and oppositions must be filed by 2/28/05. No replies shall be received. (Related to400] Application) (dw, ) (Entered: 09/29/2004) 09/29/2004 408 OPPOSITION to Petitioner's "Ex Parte and In Camera Re-Application for Fundings for Neuro-Psychological Testing of Petitioner"; Declaration of Robert S. Henry filed by Respondent Jeanne Woodford. (pbap, ) (Entered: 09/30/2004) 10/07/2004 SEALED DOCUMENT filed by Petitioner Francis G Hernandez regarding proposed order, (pbap, ) (Entered: 10/08/2004) 10/29/2004 411 JOINT APPLICATION to Modify Scheduling Order filed by Petitioner Francis G. Hernandez and Respondent Jeanne Woodford. (pbap, ) (Entered: 11/01/2004) 11/08/2004 412 ORDER RE: JOINT APPLICATION TO MODIFY SCHEDULING ORDER by Judge Ronald S.W. Lew: The Court GRANTS the request. The schedule is modified as follows: 1) Rebuttal testimony shall be taken and discovery shall conclude no later than 1/31/05; 2) Deposition transcripts and witness declarations shall be filed no later than 2/28/05; and 3) Final briefing on the prejudice prong of the claim of ineffective assistance of counsel shall be filed no later than 3/31/05 and oppositions shall be filed no later than 4/30/05. (Related to 411 Application) (dw, ) (Entered: 11/09/2004) 11/12/2004 414 NOTICE of Under Seal Filing by petitioner Francis G. Hernandez. (gk, ) (Entered: 11/16/2004) 12/01/2004 418 NOTICE of Change of Telephone and Facsimile Numbers by attorney Gail R Weinheimer for Petitioner Francis G Hernandez, changing Telephone and Facsimile Numbers to Telephone: 415-488-4876; Facsimile: 415-488-4151. Filed by Petitioner's Attorney Gail R. Weinheimer (pbap, ) (Entered: 12/02/2004) 12/17/2004 419 JOINT APPLICATION to Modify Scheduling Order filed by Respondent Jeanne Woodford, Petitioner, Francis G Hernandez. (dw, ) (Entered: 12/20/2004) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 28/46

App. K - 310 9/26/2019 CM/ECF - California Central District 01/05/2005 420 ORDER RE: JOINT APPLICATION TO MODIFY SCHEDULING ORDER by Judge Ronald S.W. Lew: The Court GRANTS the request to modify the schedule modified as follows: 1) Rebuttal testimony shall be taken and discovery shall conclude no later than 2/28/05. 2) Deposition transcripts and witness declarations shall be filed no later than 3/28/05 and 3) Final briefing on the prejudice prong of the claim of ineffective assistance of counsel shall be filed no later than 4/25/05 and oppositions shall be filed no later than 5/27/05. No reply shall be filed.granting 419 Application (dw, ) (Entered: 01/06/2005) 01/13/2005 421 APPLICATION for Order Permitting the Under Seal Filing of Petitioner's Ex Parte and In Camera Application for Funding for Preparation of Supplemental Declaration by Neuropsychologist Ruben Gur, PH.D. and Request for Expedited Ruling filed by Petitioner Francis G Hernandez. Lodged order & docs to be sealed w/CRD. (pbap, ) (Entered: 01/14/2005) 01/13/2005 422 NOTICE of Under Seal Filing of Petitioner's Ex Parte And In Camera Application For Funding For Preparation of Supplemental Declaration By Neuropsychologist Ruben Gur PH.D and Request for Expedited Ruling filed by Petitioner Francis G Hernandez. (dw, ) (Entered: 01/18/2005) 01/26/2005 PLACED IN FILE - NOT USED re proposed order for funding for preparation of supplemental declaration by Neuropsychologist Ruben Gur, Ph.d submitted by Petitioner Francis G Hernandez. (pbap, ) (Entered: 01/28/2005) 01/26/2005 423 ORDER FOR UNDER SEAL FILING OF PETITIONER'S EX PARTE AND IN CAMERA APPLICATION For Funding For Preparation of Supplemental Declaration By Neuropsychologist Ruben Gur PHD and Request for Expedited Ruling by Judge Ronald S.W. Lew: IT IS HEREBY ORDERED that Petitioner's Ex Parte and In Camera Application for Funding for Preparation of Supplemental Declaration by Neuropsychologist Ruben Gur Ph.D and Request for Expedited Ruling; [Proposed] Order may be filed under sealgranting 421 Application for Order (dw, ) (Entered: 02/01/2005) 02/16/2005 426 JOINT APPLICATION to Modify Scheduling Order 420 filed by Petitioner Francis G Hernandez. Lodged proposed order. (pbap, ) (Entered: 02/17/2005) 02/16/2005 PLACED IN FILE - NOT USED re proposed order to modify scheduling order submitted by Petitioner Francis G Hernandez. (pbap, ) (Entered: 03/03/2005) 02/24/2005 427 ORDER Re: Joint Application to Modify Scheduling Order by Judge Ronald S.W. Lew. The Court GRANTS the request to modify the schedule modified as follows: (1) Rebuttal testimony shall be taken and discovery shall concluded no later ; 3/31/2005; (2) Deposition transcripts and witness declarations shall be filed no later than 4/29/05; and (3) Final Briefing on the prejudice prong of the claim of ineffective assistance of counsel shall be filed no later than 5/31/05; and oppositions shall be filed no later than 6/30/05. No reply shall be filed. No further modifications and extensions of the briefing schedule will be granted.(pbap, ) (Entered: 02/25/2005) 03/10/2005 428 NOTICE of Deposition of Doctor Ruben C. Gur commencing at 10:00 a.m. 3/22/05 & 3/23/05, filed by Respondent Jeanne Woodford. (pbap, ) (Entered: 03/16/2005) 03/16/2005 429 NOTICE OF SUBSTITUTION of Respondent; EX PARTE APPLICATION to Unseal Document Filed by Respondent; and Notation of Informal Agreement to Extend Cut-Off Discovery Date Without Moving Other Discovery Dates Lodged Proposed Order. (dw, ) (Entered: 03/28/2005) 03/25/2005 430 ORDER by Judge Ronald S.W. Lew : Granting 429 Unopposed Ex Parte Application to substitute Respondent, to unseal a document previously filed, and to modify the briefing schedule. (1) Substitute as Respondent Jeanne Woodford with Jill Brown, the Warden of California State Prison at San quentin; (2) Unseal the intake sheet filed on 3/11/04, https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 29/46

App. K - 311 9/26/2019 CM/ECF - California Central District designated on the docket as docket No. 365; and (3) Extend the March 31, 2005 deadline for rebuttal evidence and discovery to 4/29/05. (pbap, ) (Entered: 03/28/2005) 03/25/2005 PLACED IN FILE - NOT USED re (Proposed) Order unsealing document submitted by Respondent Jill Brown. (shb, ) (Entered: 04/05/2005) 03/30/2005 431 DECLARATION of Kathy Treggs filed by Respondent Jill Brown. (sv) (Entered: 04/07/2005) 04/07/2005 432 DECLARATION of DANNY KIM filed by Respondent Jill Brown. (jp, ) (Entered: 04/18/2005) 04/13/2005 433 NOTICE OF ERRATA Re Unattached Exhibits "A" in Declaration of Danny Kim 432 filed by Respondent Jill Brown. (pbap, ) (Entered: 04/20/2005) 04/27/2005 434 JOINT STIPULATION of Parties Re Submission of Peitioner's Evidence on Discovery of Birth Parentage. (pbap, ) (Entered: 04/29/2005) 04/28/2005 435 UNOPPOSED EXPARTE APPLICATION for Extension for Filing of Deposition Transcipts; Declartion of Robert S. Henry filed by Respondent Jill Brown. Lodged order. (pbap, ) (Entered: 04/29/2005) 04/28/2005 436 DECLARATION of Submission of Witness Declarations and Deposition Testimony Re Prejudice Prong of Ineffective Assistance of Counsel Claim filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 04/29/2005) 05/06/2005 437 NOTICE of Interrogatories to Dr. Lee J. Newfield (By Stipulation) filed by Respondent Jeanne Woodford. (pbap, ) (Entered: 05/09/2005) 05/06/2005 438 FINAL JOINT APPLICATION to Modify Scheduling Order for Thirty (30) Days based on Extraordinary Circumstances 427 filed by Petitioner and Respondent. Lodged order. (pbap, ) (Entered: 05/09/2005) 05/09/2005 439 ORDER REGARDING EXPARTE APPLICATION For Open Extension of Time to File Deposition Transcripts by Judge Ronald S.W. Lew : The Court, having read and considered the pleadings, DENIES the request. Without an explanationof why the deponents have failed to sign and return the transcripts, the Court finds, under these circumstances, no more than an thirty day extension of the deadline to 5/29/2005 is warranted. (yl, ) (Entered: 05/10/2005) 05/09/2005 PLACED IN FILE - NOT USED re order on extention of time submitted by respondent (dmjr, ) (Entered: 05/20/2005) 05/11/2005 440 STATUS REPORT ON Unopposed Ex Parte Application for Open Extension of Time for filing of Deposition Transcripts 435 filed by Respondent Jill Brown. (yl, ) (Entered: 05/25/2005) 05/26/2005 441 ORDER by Judge Ronald S.W. Lew : Denying without prejudice 438 FINAL JOINT APPLICATION to Modify Scheduling Order for Thirty (30) Days based on Extraordinary Circumstances. (pbap, ) (Entered: 05/27/2005) 05/26/2005 PLACED IN FILE - NOT USED re proposed order modifying scheduling order submitted by respondent Jill Brown. (pbap, ) (Entered: 05/31/2005) 05/27/2005 442 NOTICE of Lodging of Deposition Transcripts on behalf of respondent and declarations on behalf of petitioner; declaration of Robert S. Henry filed by Respondent Jill Brown. Lodged depos with CRD (1) box(pbap, ) (Entered: 06/01/2005) 06/02/2005 443 FINAL REQUEST for Leave to Modify Scheduling Order filed by Respondent Jeanne Woodford. Lodged proposed order. (pbap, ) (Entered: 06/07/2005) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 30/46

App. K - 312 9/26/2019 CM/ECF - California Central District 06/02/2005 444 NOTICE of Supplemental Lodging of Deposition Transcript of Sheila Pokras and Substitute lodging of deposition transcript of Ruben Gur and "Addendum"; Declaration of Robert S. Henry filed by Respondent Jill Brown. (pbap, ) Lodged 2 envelopes w/CRD (Entered: 06/07/2005) 06/16/2005 445 RESPONSE of Dr. Lee J. Newfield to Interrogatories filed by Petitioner Francis G Hernandez (pbap, ) (Entered: 06/17/2005) 06/27/2005 446 ORDER MODIFYING SCHEDULING ORDER by Judge Ronald S.W. Lew that the scheduling order of February 24, 2005 427 is hereby MODIFIED as follows: 1) Discovery is closed as of June 15, 2005, with the exception of remaining open solely pending receipt of the response to the interrogatories propounded to Dr. Newfield; 2) Final Briefing on the prejudice prong of the claim of ineffective assistance of counsel shall be filed no later than July 15, 2005, or thirty (30) days after to the filing of responses to the interrogatories propounded to Dr. Newfield, whichever date is earlier; and, 3) Opposition shall be filed no later than thirty (30) days following filing of the final briefing on the prejudice prong. No reply shall be filed. No further modifications and extensions of the briefing schedule will be granted. (jp, ) (Entered: 06/30/2005) 06/28/2005 447 JOINT FINAL STATUS REPORT and Setting of Scheduling Order. Lodged Proposed Order. (jp, ) (Entered: 07/06/2005) 07/07/2005 449 UNOPPOSED EX PARTE APPLICATION to Modify Scheduling Order; Declaration of Edward M. Medvene filed by Petitioner Francis G Hernandez. Lodged order. (pbap, ) (Entered: 07/15/2005) 07/11/2005 448 ORDER by Judge Ronald S.W. Lew, that the scheduling order of 2/24/05 is hereby modified as follows: (1) Discovery is closed as of 6/27/05; (2) Final Briefing on the prejudice prong of the claim of ineffective assistance of counsel shall be filed no later than 7/27/05; and (3) oppositions hsll be field no later than 8/26/05. No reply shall be filed No further modifications and extensions of the briefing schedule will be granted. (pbap, ) (Entered: 07/12/2005) 07/14/2005 PLACED IN FILE - NOT USED re proposed order submitted by Petitioner Francis G Hernandez. (pbap, ) (Entered: 07/15/2005) 07/14/2005 450 MINUTES OF PROCEEDINGS:IN CHAMBERS ORDER by Judge Ronald S.W. Lew that the Court deems moot Petitioner UNOPPOSED EX PARTE APPLICATION to Modify Scheduling Order, filed 7/7/05, 449 . The Court's order filed 7/11/05 modified the briefing schedule as requested in the instant application.Court Reporter: not present. (pbap, ) (Entered: 07/15/2005) 07/21/2005 451 JOINT APPLICATION for Enlargement of Time to File Briefing by Five Court Days filed by Respondent Jill Brown. (pbap, ) (Entered: 07/26/2005) 08/02/2005 453 NOTICE of lodging of proposed order; declaration of Robert S. Henry filed by respondent Jill Brown. (am, ) (Entered: 08/10/2005) 08/04/2005 452 ORDER by Judge Ronald S.W. Lew that the time for filing the briefing on the prejudice prong of the ineffective assistance claim is enlarged from July 27, 2005 to August 5, 2005 re 451 . (jp, ) (Entered: 08/05/2005) 08/05/2005 454 REQUEST for Leave to to file Oversized Respondent's Post Evidentiary Hearing Brief on the Second Prong Of Petitioner's Ineffective Assistance of Counsel Claim (Prejudice: Declaration fo Counsel filed by Respondent Jill Brown. Lodged proposed order and evidentiary brief. (pbap, ) (Entered: 08/11/2005) 08/05/2005 457 BRIEF on prejudice prong of ineffective assistance of counsel claims filed by petitioner Francis G Hernandez. (jp, ) (Entered: 08/16/2005) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 31/46

App. K - 313 9/26/2019 CM/ECF - California Central District

08/11/2005 455 EX PARTE APPLICATION for Ruling on Pending Ex Parte, In Camera Funds Request; Declaration of Edward M. Medvene filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 08/12/2005) 08/11/2005 456 DECLARATION of Edward M. Medvene in Support of EX PARTE APPLICATION for Ruling on Pending Ex Parte, In Camera Funds Request 455 filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 08/12/2005) 08/12/2005 458 POST EVIDENTIARY HEARING BRIEF on the Second prong of petitioner ineffective assistance of counsel claim (prejudice); Exhibit filed by respondent Jill Brown. (jp, ) (Entered: 08/16/2005) 08/12/2005 459 POST EVIDENTIARY HEARING BRIEF on the Second prong of petitioner ineffective assistance of counsel claim (prejudice); Exhibit [Corrected] filed by respondent Jill Brown. (jp, ) (Entered: 08/16/2005) 08/12/2005 460 NOTICE OF ERRATA Filing of "Corrected" BRIEF 458 filed by Respondent Jill Brown. (jp, ) (Entered: 08/16/2005) 08/15/2005 461 EX PARTE APPLICATION AND ORDER by Judge Ronald S.W. Lew that Petitioner Brief on Prejudice Prong of Ineffective Assistance of Counsel Claims be filed. (jp, ) (Entered: 08/16/2005) 08/15/2005 462 ORDER by Judge Ronald S.W. Lew granting 454 Request for Leave to to file Oversized Respondent's Post Evidentiary Hearing Brief on the Second Prong Of Petitioner's Ineffective Assistance of Counsel Claim (Prejudice). (jp, ) (Entered: 08/16/2005) 08/17/2005 463 JOINT APPLICATION for Enlarge Time for filing Opposition Briefs. Lodged order. (pbap, ) (Entered: 08/18/2005) 08/22/2005 464 MINUTES OF PROCEEDINGS: (IN CHAMBERS) ORDER by Judge Ronald S.W. Lew : On 8/11/05, Petitioner filed EX PARTE APPLICATION for Ruling on Pending Ex Parte 455 , seeking a ruling on a funding request filed on 1/13/05, stating he never received a copy of any order regarding the application. An order regarding the application was filed on 1/26/05. Court Reporter: not present. (pbap, ) (Entered: 08/23/2005) 08/22/2005 466 ORDER by Judge Ronald S.W. Lew, Permitting Filing of "Corrected Brief. "Respondent's Post Evidentiary Hearing Brief on the Second Prong of Petitioner's Ineffective Assistance of Counsel Claim (Prejudice); Exhibit, [Corrected]" be filed. (pbap, ) (Entered: 08/24/2005) 08/23/2005 465 ORDER by Judge Ronald S.W. Lew : GRANTING JOINT APPLICATION for Enlarge Time for filing Opposition Briefs 463 on the prejudice prong of the ineffective assistance claim is enlarged from 8/26/05, to 10/10/05. (pbap, ) (Entered: 08/24/2005) 10/07/2005 467 JOINT APPLICATION for Extension of Time for Filing Opposition Briefs filed by Petitioner Francis G Hernandez. and Respondent Jill Brown, Lodged proposed order. (pbap, ) (Entered: 10/11/2005) 10/12/2005 468 ORDER REGARDING MODIFICATION OF Briefing Schedule by Judge Ronald S.W. Lew : The Court, having read and considered the pleadings, GRANTS the request 467 and directs the parties to file before 11/27/2005 opposition to the final briefing on the prejudice prong. The parties are advised no further extensions and modifications of the briefing schedule will be granted. IT IS SO ORDERED. (yl, ) (Entered: 10/13/2005) 10/12/2005 PLACED IN FILE - NOT USED re proposed order enlarging time for filing time for filing simltaneous oppositions to briefs on prejudice prong of ineffective assistance of counsel claim submitted by respondent Jill Brown. (pbap, ) (Entered: 10/18/2005) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 32/46

App. K - 314 9/26/2019 CM/ECF - California Central District 11/01/2005 469 NOTICE of Change of Attorney Information: New Firm Name Law Offices of Edward M. Medvene, 1014 South Westlake Boulevard, Suite #14-185, Westlake Village, CA 91361. telephone (805) 497-2788. Facsimile (805) 496-7009. Filed by Petitioner Francis G Hernandez (pbap, ) (Entered: 11/03/2005) 11/01/2005 FAX number for Attorney Edward M Medvene is (805) 496-7009. (pbap, ) (Entered: 11/03/2005) 11/21/2005 471 JOINT APPLICATION to enlarge time by ten court days for filing opposition briefs. Lodged proposed order. (sv) (mkr). (Entered: 12/07/2005) 11/30/2005 470 ORDER by Judge Ronald S.W. Lew GRANTING JOINT APPLICATION for Extension of Time for Filing Opposition Briefs on Prejudice Prong of Ineffective Assistance of Counsel Claim 467 from 11/27/05 to 12/12/05. (pbap, ) (Entered: 12/01/2005) 12/09/2005 472 FINAL JOINT APPLICATION for Enlarge Time for Filing Opposition Briefs Because of Unanticipated Circumstances filed by Petitioner Francis G Hernandez and Respondent Jill Brown. Lodged proposed order. (pbap, ) (Entered: 12/12/2005) 12/15/2005 473 ORDER by Judge Ronald S.W. Lew : Granting 472 Enlarging Time for Filing Simultaneous Opposition to Briefs on Prejudice Pong of Ineffective Assitance of Counsel Claim from 12/12/05 to 1/11/06 for Filing.(pbap, ) (Entered: 12/16/2005) 01/11/2006 474 JOINT APPLICATION for Enlarge Time for Final Production of Opposition Briefs on Prejudice Prong of Strickland filed by Respondent Jill Brown. Lodged order. (pbap, ) (Entered: 01/17/2006) 01/13/2006 475 ORDER by Judge Ronald S.W. Lew, GRANTING re 474 JOINT APPLICATION for Enlarge Time for Final Production of Opposition Briefs on Prejudice Prong of Strickland from 1/11/06 to 1/20/06.(pbap, ) (Entered: 01/17/2006) 01/20/2006 476 EXPARTE REQUEST for Extension of Time to File Opposition to Respondents Brief on Prejudice filed by petitioner Francis G Hernandez. Lodged proposed order. (bg, ) (Entered: 02/02/2006) 02/02/2006 477 ORDER by Judge Ronald S.W. Lew GRANTING EXPARTE REQUEST for Extension of Time to File Opposition to Respondents Brief on Prejudice 476 , by (10) court days, to and through February 3, 2006. (pbap, ) (Entered: 02/03/2006) 02/03/2006 478 STIPULATION of Parties to Supplement Joint Stipulation filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 02/07/2006) 02/06/2006 479 EXPARTE APPLICATION for Extension of Time to File Opposition to Respondent's Brief on Prejudice filed by Petitioner Francis G Hernandez. Lodged proposed order. (pbap, ) (Entered: 02/07/2006) 02/07/2006 480 EXPARTE APPLICATION for Extension of Time to File Opposition to Respondent's Brief on Prejudice filed by Petitioner Francis G Hernandez. Lodged proposed order. (pbap, ) (Entered: 02/08/2006) 02/10/2006 481 OPPOSITION to Petitioner's Brief on the Prejudice Prong of the Ineffective Assistance of Counsel Claim filed by Respondent Jill Brown. (pbap, ) (Entered: 02/14/2006) 02/10/2006 484 EX PARTE APPLICATION for Relief from Default to File Simultaneous Opposition; Declaration of Robert S. Henry filed by respondent Jill Brown. Lodged proposed order. (pbap, ) (Entered: 02/22/2006) 02/10/2006 485 REQUEST for Leave to to File Oversized Memorandum of Points and Authorities; Declaration of Robert S. Henry filed by respondent Jill Brown. Lodged proposed order. (pbap, ) (Entered: 02/22/2006) https://ecf.cacd.uscourts.gov/cgi-bin/DktRpt.pl?700901315015041-L_1_0-1 33/46

App. K - 315 9/26/2019 CM/ECF - Californ ia Central District 02/10/2006 486 EX PARTE APPLICATION for Order for to File Response to Respondent's Post- Evidentiaiy Hearing on the Second Prong of Petitioner's Ineffective Assistance of Counsel Claim in Excess of Page Limit filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 02/22/2006) 02/10/2006 487 RESPONSE to Respondent's Post-Evidentiaiy Hearing Brief on the Second Prong of Petitioner's Ineffective Assistance of Counsel Claim filed by Petitioner Francis G Hernandez (pbap, ) (Entered: 02/27/2006) 02/10/2006 488 ORDER by Judge Ronald S.W. Lew DENIED AS MOOT Petitioner's EXPARTE APPLICATION for Extension of Time to File Opposition to Respondent's Brief on Prejudice 479 . (pbap,) (Entered: 02/27/2006) 02/10/2006 489 ORDER by Judge Ronald S.W. Lew DENYING as MOOT Petitioner's EXPARTE APPLICATION for Extension of Time to File Opposition to Respondent's Brief on Prejudice. 480 (pbap, ) (Entered: 02/27/2006) 02/10/2006 ORDER by Judge Ronald S.W. Lew DENYING (Premature) Respondent's EX PARTE APPLICATION for Relief from Default to File Simultaneous Opposition 484 . (pbap, ) (Entered: 02/27/2006) 02/10/2006 490 ORDER by Judge Ronald S.W. Lew DENYING (Premature) Respondent's EX PARTE APPLICATION for Relief from Default to File Simultaneous Opposition 484 . (pbap, ) (Entered: 02/27/2006) 02/10/2006 PLACED IN FILE - NOT USED re proposed order granting pennission to file oversized memorandum of points and authorities submitted by respondent Jill Brown. (pbap, ) (Entered: 02/27/2006) 02/10/2006 PLACED IN FILE - NOT USED re proposed order granting ex paite application of petitioner to file petitioner's response to respondent's post-evidentiaiy heai·ing on the second prong of petitioner's ineffective assistance of counsel claim in excess of page limit submitted by petitioner Francis G Hernandez. (pbap, ) (Entered: 02/27/2006) 02/14/2006 482 AMENDED PROOF OF SERVICE serving Proposed order granting ex paite application of petitioner to file petitioner's response to respondent's post-evidentiaiy heai·ing on the Second Prong of Petitioner's ineffective assistance of counsel claim in excess of pages limit upon Robe11 S. Herny, Deputy Attorney General filed by Petitioner Francis G Hernandez, was served on 2/14/06. (pbap, ) (Entered: 02/16/2006) 02/21/2006 483 ORDER by Judge Ronald S.W. Lew re: Filing Opposition Briefs on Strickland Prejudice Prong. Petitioner and Respondent reqeust pennission to file Opposition Briefs on the STrickland Prejudice Prong which exceed the 25 page limit imposed by Local Rules 11 - 6. The Comt, having read and considered both reqeusts, GRANTS the requests. Petitioner filed two requests for extension of the filing dealine of 2/3/06 for Petitioner's Opposition Brief [480} is DENIED. Respondent filed an applicaiton seeking relief from any default in the filing the Opposition Brief before the deadline of 2/3/06. The Comt, having read and considered the reqeusts, DENIED the request. The request is prematme as the Comt has not held Respondent in default for failing to file the brief before the 2/3/06 deadline. The paities filed a request to supplement their joint stipulation, dated 4/21/05, regarding the discove1y of Petitioner's birth pai·ents re 434 , and 478 , ai·e GRANTED. The declaration filed with Exhibit 6 is considered filed with Exhibit 22. The MaiTiage Record of Patricia Ann Myers and Steven Urbano is considered filed with the Joint Stipulation dated 4/21/05.(pbap, ) (Entered: 02/21/2006) 02/28/2006 491 EX PARTE APPLICATION to Pennit Filing of Reply to Section on New Law Contained in Petitioner's Simultaneous Opposition or in the alternative to Strike that Section, https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 34/46

App. K - 316 9/26/2019 CM/ECF - Californ ia Central District Declaration ofRobe1i S. Herny filed by respondent Jeanne Woodford. Lodged proposed order. (pbap, ) (Entered: 03/01/2006) 02/28/2006 492 REPLY To Section II of "Petitioner's Response to Respondent's Post-Evidentiaiy Hearing Brief on the Second Prong of Petitioner's Ineffective Assistance of Counsel Claim' filed by Defendant Jeanne Woodford (pbap, ) (Entered: 03/01/2006) 03/06/2006 PLACED IN FILE - NOT USED re proposed order granting respondent pennission to file reply to section II of petitioner's simultaneous opposition submitted by respondent Jill Brown. (pbap, ) (Entered: 03/07/2006) 03/06/2006 493 ORDER by Judge Ronald S.W. Lew re: Pennission to File Reply to Opposition to Final Briefing on Strickland Prejudice Prong 491 . The paii ies shall file the Reply no later than thiiiy (30) day from the date of this order. The Comi will not grant extensions of the time to file the Reply. (pbap, ) (Entered: 03/07/2006) 03/30/2006 494 JOINT APPLICATION for Enlarge Time by Thi1iy Days for filing of reply Briefs. Lodged proposed order. (pbap, ) (Entered: 04/06/2006) 04/06/2006 495 ORDER by Judge Ronald S.W. Lew DENYING JOINT APPLICATION for Enlai·ge Time by Thniy Days for filing of reply Briefs 494 on The Strickland Prejudice Prong. Both Respondent and Petitioner shall file Replies to the Opposition to the Final Briefing on the prejudice prong not later than 30 days from the date of this order. The Comi will not grant no fmiher extension of the time to the Reply briefing. (pbap, ) (Entered: 04/06/2006) 04/06/2006 PLACED IN FILE - NOT USED re proposed order enlai·ging time for filing stimultaneous replies to opposition briefs on prejudice prong on ineffective assistance claim submitted by respondent Jeanne Woodford. (pbap, ) (Entered: 04/12/2006) 05/05/2006 497 UNOPPOSED EX PARTE REQUEST for an Additional Six Comi Days in Which to File His Reply Brief on Prejudice filed by petitioner Francis G Hernandez. Lodged proposed order. (pcl, ) (Entered: 05/09/2006) 05/08/2006 498 EX PARTE APPLICATION to Delay Filing of Reply Brief Until Petitioner's Filing of Reply Brief; Declaration of Robe1i S. Herny filed by respondent Jill Brown. (pcl, ) (Entered: 05/09/2006) 05/12/2006 499 ORDER by Judge Ronald S.W. Lew GRANTING UNOPPOSED EX PARTE REQUEST for an Additional Six Court Days, until 5/15/06, in Which to File His Reply Brief on Prejudice 497 . (pbap,) (Entered: 05/15/2006) 05/22/2006 500 UNOPPOSED FINAL EXPARTE REQUEST for Additional three (3) Comi Days in Which to File His Reply Brief on Prejudice filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 05/23/2006) 05/25/2006 501 EX PARTE APPLICATION to file Petitioners Reply to Respondents Opposition brief on prejudice under Strickland in excess of page limit; Declaration of Ronald A Di Nicola in support thereof filed by Petitioner Francis G Hernandez. (ir, ) (Entered: 06/01/2006) 05/25/2006 503 REQUEST for Leave to file oversized memorandum of points and authorities; declai·ation of Robert S. Herny filed by respondent Jill Brown. (pbap, ) (Entered: 06/07/2006) 06/01/2006 502 ORDER by Judge Ronald S.W. Lew regarding Request pennission to exceed page limit established for reply to opposition to briefing on Strickland prejudice 501 DENIED. Respondent and Petitioner may file revised replies to the oppositions to the briefing on the prejudice prong no later than thniy (30)days from the date of this order. The replies shall not exceed twenty five (25) pages in length. Respondent and Petitioner may file https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 35/46

App. K - 317 9/26/2019 CM/ECF - California Central District revised replies to the oppositions to the briefing on the prejudice prong no later than thirty (30) days from the date of this order. The replies shall not exceed twenty five (25) pages in length. Comt will not grant any extensions of the time to file the replies. (ir, ) (Entered: 06/01/2006) 06/01/2006 PLACED IN FILE - NOT USED re Petitioner Reply to Respondent Opposition brief on prejudice under Sti·ickland, lodged 5/25/06 submitted by Petitioner Francis G Hernandez. (ir, ) (Entered: 06/01/2006) 06/01/2006 PLACED IN FILE - NOT USED re Reply to Petitioners Opposition to Respondents brief on The Merits regarding the prejudice Prong submitted by Respondent Jill Brown. (ir, ) (Entered: 06/01/2006) 06/30/2006 504 UNOPPOSED APPLICATION for Two-Day Extension of Time to File Petitioner's Brief on Prejudice filed by petitioner Francis G Hernandez. Lodged order. (pbap, ) (Entered: 07/05/2006) 07/05/2006 505 ORDER by Judge Ronald S.W. Lew GRANTING UNOPPOSED APPLICATION for Two-Day Extension of Time to File Petitioner's Brief on Prejudice 504 , from 6/30/06 to 7/ 6/06. (pbap, ) (Entered: 07/06/2006) 07/05/2006 506 REPLY to Petitioner's Opposition to Respondent's Brief on the Merits Regarding the Prejudice Prong 496 filed by Respondent Jill Brown (pbap, ) (Entered: 07/1 4/2006) 07/05/2006 507 REPLY to Respondent's Opposition Brief on Prejudice Under Sti·ickland filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 07/1 4/2006) 09/20/2006 508 ORDER RETURNING CASE FOR REASSIGNMENT by Judge Manuel L. Real. ORDER case retmned to the Clerk for random reassignment pm suant to General Order 224. Case randomly reassigned from Judge Ronald S.W. Lew to Judge Manuel L. Real for all fmther proceedings. The case number will now reflect the initials of the ti·ansferee Judge CV 90-4638 R.(rn,) (Entered: 09/20/2006) 10/30/2006 509 MINUTES OF PROCEEDINGS IN CHAMBERS ORDER held before Judge Manuel L. Real: This Case has Recently Been Transfened from the calendar of Judge Lew to the calendar of Judge Real. The Comt Hereby set This Death Penalty Action for a Mandato1y Status Conference set for 12/4/2006 10:00 AM. Each side shall file A Status repo1t with the comt by 11/20/06.Comt Reporter: none. (pbap, ) (Entered: 10/31/2006) 11/20/2006 510 STATUS REPORT filed by Respondent Jill Brown. (pbap, ) (Entered: 11/21/2006) 11/20/2006 511 STATUS REPORT filed by Petitioner Francis G Hernandez. (pbap, ) (Entered: 11/21/2006) 12/04/2006 512 MINUTES OF Status Conference held before Judge Manuel L. Real : The Comt sets this action for a FINAL EVIDENTIARY HEARING ON ALL CLAIMS still pending in this case, both evidentiaiy and non-evidentiaiy ; Evidentiaiy Heai·ing set for 2/6/2007 09:00 AM.Comt Repo1ter: Leonore LeBlanc. (pbap, ) (Entered: 12/07/2006) 01/04/2007 514 UNOPPOSED EX PARTE APPLICATION To Modify Scheduling Order filed by Petitioner Francis G Hernandez. Lodged proposed order. (yl,) (Entered: 01/18/2007) 01/05/2007 513 ORDER TO MODIFY SCHEDULING ORDER by Judge Manuel L. Real: IT IS HEREBY ORDERED that the Final Heai·ing on all claims still pending in the case is continued to 3/6/07 at 9:00 am. Simultaneous briefs on the remaining claims shall be submitted by 1/27/07 and simultaneous responses by 2/16/07. (klg, ) (Entered: 01/05/2007) 01/09/2007 515 NOTICE of Filing Original Signatm·e Page filed by petitioner Francis G Hernandez. (jj, ) https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 36/46

App. K - 318 9/26/2019 CM/ECF - Californ ia Central District (Entered: 01/22/2007) 01/29/2007 516 UNOPPOSED APPLICATION for Three Day Extension of Time to File Petitioner Brief on remaining claim filed by petitioner Francis G Hernandez. Lodged Proposed Order. (jp) (Entered: 02/06/2007) 02/01/2007 517 ORDER by Judge Manuel L. Real: Having read and considered Petitioner Unopposed Ex Parte APPLICATION for Three Day Extension of Time to File Petitioner Brief on remaining claim 516. Good cause appearing, IT IS ORDERED that: The time for filing the brief is enlarged from 1/27/2007, to 2/1/2007. (jp) (Entered: 02/09/2007) 02/01/2007 518 APPLICATION to File Oversize Memorandum of Points and Authorities in suppo1i respondent brief on the Merit on all remaining claims; Declaration of Robert S Herny filed by respondent Robe1i Ayers Jr Jill Brown. Lodged Proposed Order. (jp) (Entered: 02/09/2007) 02/01/2007 519 BRIEF on Um esolved Claims filed by respondent Robe1i L Ayers. (jp) (Entered: 02/09/2007) 02/01/2007 520 BRIEF on the merits on all remaining claims filed by respondent Robert L Ayers Jr. (jp) (Entered: 02/09/2007) 02/02/2007 521 ORDER by Judge Manuel L. Real: Good cause appearing, IT IS ORDERED that Respondent may file a Memorandum of Points and Authorities in suppo1i respondent brief on the Merit on all remaining claims 518 that exceeds twenty-five (25) pages in lenght. (jp) (Entered: 02/09/2007) 02/15/2007 524 UNOPPOSED REQUEST to Modify Scheduling; Declaration of Gail R. Weinheimer filed by petitioner Francis G Hernandez. Lodged proposed order. (pbap, ) (Entered: 03/08/2007) 02/20/2007 522 ORDER granting petitioners unopposed ex paiie request to modify scheduling order 513 ; time for pa1iies to file response briefs extended to 3/16/07; final hearing on all pending claims will be held 3/27/2007 09:00 AM by Judge Manuel L. Real.(lc, ) (Entered: 02/21/2007) 03/02/2007 523 MINUTES OF PROCEEDINGSIN CHAMBERS ORDER held before Judge Manuel L. Real. Counsel are Notified that on the Court's own motion the: Evidentiaiy Heai·ing set for 3/27/07 at 9:00 is CONTINUED to 5/22/2007 09:00 AM.Comi Repo1ier: none present. (pbap, ) (Entered: 03/02/2007) 03/09/2007 525 ORDER TO SHOW CAUSE WHETHER SUBSTITUTION OF COUNSEL IS NECESSARY AND EXTENDING TIME FOR RESPONSE BRIEFING by Judge Manuel L. Real. Petitioner's Response to Order to Show Cause due by 3/16/2007. The Comi also extends time for the parties to file their response briefs to 3/30/07.(pbap,) (Entered: 03/12/2007) 03/16/2007 526 RESPONSE to Order to Show Cause Whether Substitution of Counsel is Necessaiy; Declai·ations of Edwai·d M. Medvene, Gail R. Weinheimer 525 filed by Petitioner Francis G Hernandez.(pbap, ) (Entered: 03/27/2007) 03/26/2007 527 ORDER by Judge Manuel L. Real Substituting Counsel and Extending time for Response Briefing. Attorney Federal Public Defender for Francis G Hernandez added. Attorney J Brnce Robe1ison; Gail R Weinheimer; Ronald A DiNicola and Edward M Medvene tenninated. Mr. Medvene, Ms. Weinheimer and Mr. DiNicole shall make the record available to the FPD immediately. They also shall submit any billing requests to the Comi's C.J.A. Supervising Attorney no later than 4/23/07. The response briefing presently due 3/30/07, and the evidentiaiy hearing cmTently set for 5/22/07, ai·e https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 37/46

App. K - 319 9/26/2019 CM/ECF - California Central District postponed until fmiher notice. Status Conference set for 4/30/2007 10:00 AM.(pbap, ) (Entered: 03/27/2007) 04/03/2007 528 NOTICE of Appearance filed by attorney Sean K Kennedy, Margo A Rocconi, Brad D Levenson on behalf of Petitioner Francis G Hernandez (pbap, ) (mkr). (Entered: 04/05/2007) 04/03/2007 FAX number for Attorney Sean K Kennedy, Brad D Levenson, Margo A Rocconi is (213) 894-0081. (pbap, ) (Entered: 04/05/2007) 04/24/2007 530 RESPONSE to "Petitioner's Status Repo1i filed in Anticipation of the April 30, 2007 Status Conference 529 . (pbap, ) (Entered: 05/15/2007) 04/30/2007 529 MINUTES of Status Conference held before Judge Manuel L. Real: The Court Orders the paiiies to file fmi her SPECIFIC briefs as to what exactly remains that would require an evidentiaiy hearing by 5/15/07. The matter is CONTINUED for Further Status Conference to 5/21/2007 at 10:00 AM before Judge Manuel L. Real.Cami Repo1ier: Sheri Kleeger. (mg, ) (Entered: 05/02/2007) 05/10/2007 531 EXPARTE APPLICATION for Extension of Time to File Brief Regarding evidentiaiy hearing claims and to continue Sta.tus Conference; Declaration of Margo A. Rocconi filed by Petitioner Francis G Hernandez. Lodged proposed order. (pbap, ) (Entered: 05/15/2007) 05/14/2007 532 CLAIM by Claim Status Report and Declai·ation that No Evidentiaiy Hearing Claims Remain; Declaration of Robe1i S. Herny by Respondent Robe1i Ayers, Jr. (pbap,) (Entered: 05/15/2007) 05/14/2007 533 ORDER by Judge Manuel L. Real GRANTING EXPARTE APPLICATION for Extension of Time to File Brief Regarding Evidentiaiy Hearing Claims and to Continue Status Conference 531 . The Sta.tus Conference scheduled for 5/21/07, 529 , is vacated and is rescheduled for 6/25/2007 10:00 AM before Judge Manuel L. Real. The brief of the paiiies ai·e due on the 6/18/07.(pbap, ) (Entered: 05/15/2007) 05/15/2007 534 NOTICE OF ERRATA of filing of exhibit to Delcaration of Robe1i S. Herny contained in "Respondent's Claim by claim sta.tus repo1i and declai·ation that no evidentiaiy hearing claims remain 532 filed by Respondents Jill Brown, Robe1i Ayers, Jr. (ca) (Entered: 06/04/2007) 05/31/2007 535 SUMMARY JUDGMENT AGAINST DEFENDANT THOMAS SULLIVAN ON THE 2ND, 3RD, 5TH, 6TH, 8TH & 9TH CLAIMS FOR RELIEF by Bankrnptcy Judge Vincent P. Zurzolo: Plaintiff John P. Pringle, Chapter 7 Trnstee, is awai·ded principal damages of $36,610,218.22 against Defendant Thomas Sullivan . [filed 5/14/2007 in the U.S. Bankrnptcy Comi, Los Angeles Division, Bankrnptcy No. LA00-38197 VZ, Adversaiy No. AD 02-01010 VZ]. (gk) ** PURSUANT TO THE NOTICE OF CLERICAL ERROR FILED 6/8/2007 536 , THIS ENTRY WAS DOCKETED ONTO THE WRONG CASE NUMBER. SEE CORRECT CASE NUMBER CV 07-03521 AHS ** Modified on 6/8/2007 (gk, ). (Entered: 06/08/2007) 06/08/2007 536 NOTICE OF CLERICAL ERROR: Due to clerical eITor, Summaiy Judgment Against Defendant Thomas Sullivan on the 2nd, 3rd, 5th, 6th, 8th & 9th Claims for Relief filed 5/31/2007 535 , was dockted onto the wrong case number. See coITect case number CV 07-03521 AHS. (gk) (Entered: 06/08/2007) 06/18/2007 537 PETITIONRE'S BRIEF ON THE CURRENT STATUS OF THE LITIGATION filed by Petitioner Francis G Hernandez. (shh) (Entered: 06/19/2007) 06/25/2007 538 MINUTES OF Fmiher Status Conference re evidentiaiy hearing on remaining claims held before Judge Manuel L. Real. After reviewing all the filings and briings in this https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 38/46

App. K - 320 9/26/2019 CM/ECF - California Central District action, the Comi determines it will not hold a fmi her evidentiaiyhearing in this matter. The Court ORDERS the paii ies to file simultaneous briefs by JULY 25, 2007, on certain claims and/or po1iions of claims as stated by the Comi on the record.Cami Repo1ier: Sheri Kleeger.(pbap) (Entered: 06/26/2007) 06/25/2007 539 ORDER SCHEDULING FINAL MERITS BRIEFING by Judge Manuel L. Real. The paii ies shall file simultaneous merits briefs on or before 7/25/07.(pbap) (Entered: 06/26/2007) 07/16/2007 540 EXPARTE APPLICATION for Extension of Time to File Briefing on Remaining Claims; Declai·ation of Mai·go A. Rocconi filed by Petitioner Francis G Hernandez. Lodged proposed order.(pbap) (Entered: 07/17/2007) 07/23/2007 541 ORDER by Judge Manuel L. Real, re EXPARTE APPLICATION for Extension of Time to File Briefing on Remaining Claims shall be filed no later than August 24, 2007 540 (pj) (Entered: 07/23/2007) 07/24/2007 542 NOTICE OF MOTION AND MOTION to Stay proceedings; pending resolution of state habeas petition filed on June 26, 2007 in IN re Francis G. Hernandez on Habeas Corpus (California Supreme Comi no. S153853); filed by petitioner, Francis G Hernandez; Motion set for hearing on 8/20/2007 at 10:00 AM before Judge Manuel L. Real (ear) (Entered: 08/08/2007) 07/25/2007 543 NOTICE OF Lodgement; Death Penalty Case [28 U.S.C. §2254]; filed by petitioner, Francis G. Hernandez (ear) (Entered: 08/08/2007) 07/31/2007 544 AMENDED DOCUMENT filed by Petitioner Francis G Hernandez. Amendment to Notice of Lodment 543 . (pbap) (Entered: 08/13/2007) 08/06/2007 545 APPLICATION to File Oversize Memorandum of Points and Authorities in Suppo1i of Answer; Declaration ofRobe1i S. Herny in Suppo1i filed by respondent Robe1i Ayers, Jr. Lodged proposed order. (pbap) (Entered: 08/14/2007) 08/06/2007 546 Opposition to Petitioner's MOTION to Stay Proceedings 542 ; Exhibits filed by Respondent Robe1i Ayers, Jr. (pbap) (Entered: 08/14/2007) 08/10/2007 547 ORDER by Judge Manuel L. Real APPLICATION to File Oversize MemorandUIIl of Points and Authorities in Suppo1i of Answer 545. (pbap) (Entered: 08/14/2007) 08/13/2007 550 REPLY to responsent's Opposition to MOTION to Stay Proceedings 542 filed by Petitioner Francis G Hernandez. (ca) (Entered: 08/22/2007) 08/20/2007 548 ORDER by Judge Manuel L. Real DENYING MOTION to Stay proceedings; pending resolution of state habeas petition filed on June 26, 2007 in IN re Francis G. Hernandez on Habeas Corpus (California Supreme Comi no. S153853) 542 (shb) (Entered: 08/21/2007) 08/20/2007 549 MINUTES OF Motion Heai·ing held before Judge Manuel L. Real : RE: Petitioner's motion to stay proceedings. The Comi DENIES the motion. Comi Repo1ier: Margaret Babykin.(wh) (Entered: 08/22/2007) 08/23/2007 551 PETITIONER'S BRIEFING REGARDING CLAIMS SPECIFIED INTHE COURT'S JUNE 26, 2007 ORDER 538 filed by Petitioner Francis G Hernandez. (shb) (Entered: 08/29/2007) 08/24/2007 552 RESPONDENT'S FINAL MERITS BREIEFING; MEMORANDUM of Points and Authorities in Suppo1i filed by Respondents Jill Brown, Robe1i Ayers, Jr. (shb) (Entered: 08/29/2007) 09/27/2007 553 ORDER TRANSFERRING CIVIL ACTION pursuant to Section 3.1 of General Order https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 39/46

App. K - 321 9/26/2019 CM/ECF - California Central District 07.02. ORDER case transfered from Judge Manuel L. Real to the calendar of Judge Ronald S.W. Lew for all fmi her proceedings. The case number will now reflect the initials of the transferee Judge CV 90-4638 RSWL. Signed by Judge Manuel L. Real and Judge Ronald S.W. Lew.(rn) (Entered: 09/27/2007) 11/18/2009 554 STATUS REPORT on Pending Litigation,· Exhibit A filed by Respondent Robert Ayers, Jr. (Herny, Robe1i) (Entered: 11/18/2009) 10/18/2010 555 NOTICE OF APPEARANCE OR REASSIGNMENT of Deputy Public Defender Margo A Rocconi on behalf of Petitioner Francis G Hernandez. Filed by Petitioner Francis G Hernandez. (Rocconi, Margo) (Entered: 10/18/2010) 02/11/2011 556 MINUTES (In Chambers) by Judge Ronald S.W. Lew. On April 28, 2005, petitioner filed Petitioner's Submission of Witness Declarations and Deposition Testimony Re Prejudice Prong of Ineffective Assistance of Counsel Claim 436 . While the table of contents describes Exhibit 21 as containing the deposition of Dr. Daniel Ma1iell and related exhibits, the exhibit includes only the first volume of the deposition. Within five days of entiy of this order, petitioner shall file a con ected version of Exhibit 21 , which contains the second volume of Dr. Maiiell's deposition. (lom) (Entered: 02/11/2011) 02/15/2011 557 NOTICE filed by petitioner Francis G Hernandez. - Notice ofFili ng Corrected Exhibit 21 to Declaration ofSubmi ssion of Witness Declarations and Deposition Testimony Re Prejudice Prong ofIneffective Assistance ofCounsel Claim (Attachments: # l Conected Exhibit 21 )(Rocconi, Mai·go) (Entered: 02/15/2011) 06/23/2011 558 MINUTES (In Chambers) by Judge Ronald S.W. Lew. On or before July 1, 2011 , the paiiies shall each file a separate status repo1i . Each paiiy shall list all objections that paiiy has made to the evidence subinitted as paii of the evidentiaiy heai·ing. For each objection, the paiiy shall (1) note the date on which the objection was made and (2) cite the brief or other filing in which the objection was made, including pinpoint citations to the argument concerning each objection. The paiiies shall liinit the repo1i to objections ah-eady made. The Court will not ente1iain any fmiher objections to the evidentiaiy heai·ing evidence. The Comi does not anticipate granting an extension of time. (lom) (Entered: 06/23/2011) 06/28/2011 559 Joint STIPULATION for Extension of Time to File Status Repo1is Until August 1, 2011 filed by petitioner Francis G Hernandez. (Atta.chments: # l Proposed Order)(Drozdowski, Mai·k) (Entered: 06/28/2011) 06/29/2011 560 MINUTES (In chambers) by Judge Ronald S.W. Lew. On June 23, 201 1, the Comi ordered the pa1iies to file status repo1is detailing the objections each paiiy has made to the evidence subinitted as paii of the evidentiaiy hearing 558 . On June 28, 201 1, the paiiies filed a joint stipulation 559 , seeking a one-month extension oftime. The stipulation is GRANTED in part and DENIED in part. The paiiies shall file their individual status repo1is on or before Monday, July 19, 2011 . (lom) Modified on 6/29/2011 (lom).(emailed Wai·den San Quentin) Modified on 6/29/2011 (lom). (Entered: 06/29/2011) 07/15/2011 561 STIPULATION for Extension of Time to File Status Reports Until August 29, 2011 filed by petitioner Francis G Hernandez. (Atta.chments: # l Proposed Order)(Rocconi, Mai·go) (Entered: 07/15/2011) 07/18/2011 562 ORDER Granting Stipulation for Extension of Time 561 by Judge Ronald S.W. Lew. The Comi's order directing the pa1iies to note their respective objections does not require a review of the 561 documents filed in this matter, as evidenced by the one-week deadline the Comi originally set. The status repo1is shall point to objections contained in the paiiies' briefs dealing with the evidentiaiy heai·ing evidence. These briefs include the paiiies briefing on the deficiency prong, Docket Nos. 178, 186, 202, 209, 214 , 215 , https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 40/46

App. K - 322 9/26/2019 CM/ECF - California Central District 496 , the prejudice prong (Docket Nos. 458 , 459 , 481 , 487 , 492 , 506 , 507]) and juror misconduct (Docket Nos. 227 , 230 , 235 , 239). The paiiies shall not raise any additional objections. The paiiies' status repo1is shall be filed on or before August 1, 201 1. The nearly five weeks afforded the paiiies for this purpose should prove more than sufficient. The Comi will not ente1iain additional requests for extensions of time. (lom) (Entered: 07/18/2011) 08/01/2011 563 RESPONSE filed by Respondent Robe1i Ayers, J1io Stipulation and Order, Set/Reset Deadlines,,,,,,,, 562 Status Report re: Objections Contained in Briefing Dealing with the Evidentiary Hearings (Herny, Robert) (Entered: 08/01/2011) 08/01/2011 564 STATUS REPORT Regarding Evidentiary Objections in the Evidentiary Hearing Briefing on Ineffective Assistance of Counsel and Juror Misconduct filed by Petitioner Francis G Hernandez. (Attachments: # l Attachment (Pages 1-20), # Z. Attachment (Pages 21 -40), # l Attachment (Pages 41 -60))(Rocconi, Mai·go) (Entered: 08/01/2011) 08/11/2011 565 EX PARTE APPLICATION FOR ENLARGEMENT OF TIME to File Response Limited to 7-Page Memorandum of Points and Authorities to the Status Repo1is Filed on August 1, 2011 filed by Respondent Robe1i Ayers, Jr. (Attachments:# l Proposed Order Granting Paiiies Pennission to File 7-Page Response to Status Repo1is on or before September 1, 2011.)(Heruy, Robe1i) (Entered: 08/11/2011) 08/15/2011 566 OPPOSITION re: EX PARTE APPLICATION FOR ENLARGEMENT OF TIME to File Response Limited to 7-Page Memorandum of Points and Authorities to the Status Repo1is Filed on August 1, 2011 565 filed by Petitioner Francis G Hernandez. (Rocconi, Mai·go) (Entered: 08/15/2011) 08/16/2011 567 ORDER by Judge Ronald S.W. Lew: denying 565 Respondent's Ex Paiie Application for for pennission to file responses to the paiiies' August 1, 2011 status repo1is. (lom) (Entered: 08/17/2011) 08/16/2011 568 ORDER RE OBJECTIONS by Judge Ronald S.W. Lew. The pa1i ies have made various objections to evidence submitted as paii of the evidentiaiy heai·ing. Many of these ai·e not trne evidentia1y objections but objections to the ai·guments of counsel. The Comi need not rnle on these objections, as the Court has considered all of the arguments presented by the paiiies in addressing each claim. Having considered the pa1i ies' briefs, the Comi hereby orders as follows: (Refer to attached document for details). (lom) (Entered: 08/17/2011) 08/16/2011 569 ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS 1 , 36 by Judge Ronald S.W. Lew. The Comi hereby GRANTS the petition for writ of habeas corpus on the basis of Claims 4(A)(l ), 4(A)(7)(d ), 4(A)(2), 4(A)(3), 5(C)(7), 5(D)(27), 5(0)(32), 5(D)(40) and cumulative eITor. The Court orders that the sentence of death in the matter of People v. Francis Hernandez, Case No. A-022813 in the California Superior Comi for the County of Los Angeles, be VACATED. All other claims ai·e DENIED. (See attached document for details.) (lom) (Entered: 08/17/2011) 08/16/2011 570 JUDGMENT by Judge Ronald S.W. Lew. IT IS HEREBY ORDERED that Petitioner Francis Gerard Hernandez's petition for writ of habeas corpus be CONDITIONALLY GRANTED and that the sentence of death in the matter of People v. Francis Gerai·d Hernandez, Case No. A-022813 in the California Superior Comi for the County of Los Angeles, be VACATED. IT IS FURTHER ORDERED that respondent shall, within 120 days of date from entiy of this judgment, either grant petitioner a new penalty phase ti·ial or vacate the death sentence and resentence petitioner in accordance with applicable California law and the United States Constitution. Related to: Order, 569 . (MD JS-6, Case Tenninated). (lom) (Entered: 08/17/2011)

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App. K - 323 9/26/2019 CM/ECF - California Central District 08/16/2011 571 Order by Judge Ronald S.W. Lew Pursuant to 28 U.S.C. § 2253 (c)(2), the Comi GRANTS a ce1iificate ofappealability on Claims 5(C)(l), 5(C)(2), 5(C)(3), 5(C)(4), 5(C) (9), 5(C)(l 0),5(D)(l 7), 5(D)(39). The Comi DENIES a ce1iificate of appealability on theremainder of petitioners claims. ( dmap) (Entered: 08/17/2011) 09/16/2011 572 NOTICE OF APPEAL to the 9th CCA filed by Petitioner Francis G Hernandez. Appeal of Order,, 82 , Judgment,, 570 , Order on Petition for Ce1iificate of Appealability, 571 , Order,, 569 (Appeal fee FEE WAIVED.) (Attachments: # l Exhibit A, # 2 Exhibit B, # 1 Exhibit C, # 4 Exhibit D)(Rocconi, Margo) (Entered: 09/16/2011) 09/21/2011 573 NOTIFICATION by Circuit Court of Appellate Docket Number 11-99013, 9th CCA regarding Notice of Appeal to 9th Circuit Comi of Appeals, 572 as to Petitioner Francis G Hernandez. (h-) (Entered: 09/22/2011) 10/06/2011 574 NOTICE of Change of Attorney Infonnation for attorney Gaiy A Liebennan counsel for Respondent Robe1i Ayers, Jr. Changing e-mail and fax number to [email protected], (213) 897-6496. Adding GARY A. LIEBERMAN as attorney as counsel of record for MICHAEL MARTEL for the reason indicated in the G- 06 Notice. ROBERT SPENCER HENRY will no longer receive service of documents from the Clerks Office for the reason indicated in the G-06 Notice.ROBERT SPENCER HENRY is no longer attorney of record for the aforementioned paiiy in this case for the reason indicated in the G-06 Notice. Filed by Respondent MICHAEL MARTEL (Liebennan, Gaiy) (Entered: 10/06/2011) 10/06/2011 575 TRANSCRIPT DESIGNATION AND ORDERING FORM For Dates: 12/04/2006, 04/30/2007, 06/25/2007, 08/20/2007; Comi Repo1ier: Lenore LeBlanc, SheITi Kleeger, Mai·garet Babykin; Comi of Appeals Case Number: 11 -99013; Re: 572 (Rocconi, Mai·go) (Entered: 10/06/2011) 10/13/2011 576 EX PARTE APPLICATION to Stay pending Deadline re New Penalty Phase Pending Petitioner's Appeal re Guilt Phase Memorandum ofPoints & Authorities; Declaration of Ga,y A. Lieberman in Support Thereof filed by Respondent Robert Ayers, Jr. (Attachments: # l Proposed Order re Unopposed Expaiie Application for Stay of Deadline re New Penalty Phase Pending Petitioner's Appeal re Guilt Phase)(Liebe1man, Gaiy) (Entered: 10/13/2011) 10/17/2011 577 ORDER by Judge Ronald S.W. Lew: granting 576 Ex Paite Application to Stay Order. IT IS HEREBY ORDERED that the order in this Comi's Judgment, entered on August 17, 2011 , 570 requiring that the State, "within 120 days ... , either grant petitioner a new penalty phase trial or vacate the death sentence and resentence petitioner, " shall be stayed during the pendency of Petitioner's federal appeal from the Judgment as to the guilt phase. The stay will be lifted upon any dismissal of the appeal, or upon this Comi's filing of the order spreading the mandate of the Court of Appeals. (lorn) (Entered: 10/18/2011) 12/01/2011 578 TRANSCRIPT for proceedings held on 8-20-07 10:19 a.m .. Comi Repo1ier/Electronic Comi Recorder: Margaret Babykin, phone number (626) 963-0566. Transcript may be viewed at the comi public te1minal or purchased through the Comi Repo1ier/Electronic Comi Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/22/2011. Redacted Transcript Deadline set for 1/1/2012. Release of Transcript Restriction set for 2/29/2012. (ha) (Entered: 12/01/2011) 12/01/2011 579 NOTICE OF FILING TRANSCRIPT filed for proceedings 8/20/07 10:19 a.m. (ha) (Entered: 12/01/2011) 12/16/2011 580 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Comi of Appeals, 572 https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 42/46

App. K - 324 9/26/2019 CM/ECF - California Central District filed by Francis G Hernandez, CCA # 11 99013 Order received in this district on 12/16/11 . Appellant's unopposed Motion for New Briefing and To Include A Date For Transcript Production, constru ed as a motion to extend the time to file the opening brief, is granted as follows. See Order for details. (cbr) (Entered: 12/20/2011) 01/03/2012 581 NOTICE of Change of Attorney Infonnation for attorney Gaiy A Liebennan counsel for Respondent Robe1t Ayers, Jr. BEVERLY K. FALK will no longer receive service of documents from the Clerks Office for the reason indicated in the G-06 Notice. Filed by Respondent MICHAEL MARTEL, Acting Wai·den, California State Prison at San Quentin (Liebe1man, Ga1y) (Entered: 01/03/2012) 01/19/2012 582 TRANSCRIPT ORDER for date of proceedings 8/20/2007 to 8/20/2007 re Comt of Appeal case number 11 -99013, as to petitioner Francis G Hernandez Comt Repo1ter Mai·garet Babykin Civil Appeal, Transcript po1tion requested Other Motion to Stay Proceeding; Hearing date 8/20/2007. Civil case appeal. (Atta.chments: # l SF 1034 Public Voucher)(Rocconi, Mai·go) (Entered O1/19 /2012) 01/19/2012 583 TRANSCRIPT ORDER for date of proceedings 4/30/2007 to 6/25/2007 re: Comt of Appeal case number 11 -99013, as to petitioner Francis G Hernandez Comt Repo1ter Sheri Kleeger. Civil Appeal, Transcript portion requested: Other: Status Conference (2); Hearing Dates 4/30/2007 and 6/25/2007. Civil case appeal. (Attachments: # l SF 1034 Public Service Voucher)(Rocconi, Mai·go) (Entered: 01/19/2012)

01/19/2012 584 TRANSCRIPT ORDER for date of proceedings 12/4/2006 to 12/4/2006 re: Comt of Appeal case number 11 99013, as to petitioner Francis G Hernandez Comt Repo1ter Leni LeBlanc. Civil Appeal, Transcript portion requested: Other: Status Conference; Heai·ing Date 12/4/2006 Civil case appeal (Attachments # l SF 1034 Public Service Voucher) (Rocconi, Mai·go) (Entered: 01/19/2012) 02/21/2012 585 TRANSCRIPT for proceedings held on 04/30/2007 1Oa. m .. Comt Repo1ter/Electi-onic Comt Recorder: Sheri Kleeger, phone number 213-894-6604. Transcript may be viewed at the comt public tenninal or purchased through the Comt Repo1ter/Electi·onic Comt Recorder before the deadline for Release of Transcript Resti·iction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/13/2012. Redacted Transcript Deadline set for 3/23/2012. Release of Transcript Resti·iction set for 5/21/2012. (Kleeger, Sheri) (Entered: 02/21/2012) 02/21/2012 586 TRANSCRIPT for proceedings held on 12/4/2006 10:15 a.m . Court Repo1ter: Pat Cuneo, CSR 1600, website www patcuneo com Transcript may be viewed at the comt public tenninal or purchased through the Court Repo1ter before the deadline for Release of Transcript Resti-iction After that date it may be obtained through PACER Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/13/2012. Redacted Transcript Deadline set for 3/23/2012 Release of Transcript Resti·iction set for 5/21/2012. (Cuneo, Pati·icia) (Entered: 02/21/2012) 02/21/2012 587 NOTICE OF FILING TRANSCRIPT filed for proceedings 12/4/2006 10:15 A.M. (Cuneo, Pati-icia) (Entered: 02/21/2012) 02/22/2012 588 TRANSCRIPT for proceedings held on 6/25/2007 1Oa.m .. Comt Repo1ter/Electi-onic Comt Recorder Sheri Kleeger, phone number 213894 6604 Transcript may be viewed at the comt public te1minal or purchased through the Comt Reporter/Electi-onic Comt Recorder before the deadline for Release of Transcript Resti·iction After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/14/2012 Redacted Transcript Deadline set for 3/24/2012 Release of Transcript Resti·iction set for 5/22/2012. (Kleeger, Sheri) (Entered: 02/22/2012) https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 43/46

App. K - 325 9/26/2019 CM/ECF - California Central District 02/24/2012 589 MOTION for Hearing on the conflict of Interest filed by Petitioner Francis G Hernandez. (lom) (Entered: 03/07/2012) 03/06/2012 590 MINUTES (IN CHAMBERS) by Judge Ronald S W Lew denying 589 Petitioner Francis G. Hernandez's Motion for Hearing on Conflict of Interest. Petitioner's Motion must be denied because jurisdiction over this matter rests in the hands of the Comt of Appeals. Even if this Court could exercise jurisdiction over Petitioner's Motion, it would be denied First, Petitioner fails to state what relief or action he seeks from the comt Second, if Petitioner's Motion were considered a new request for habeas relief it would be denied on procedural and substantive grounds (See attached doclllllent for details ) (lom) (Entered: 03/07/2012) 04/18/2012 591 ORDER from 9th CCA filed, CCA # 11-73794. Order received in this district on 4/18/12. We construe Petitioner's prose 28 U.S.C. 2241 petition, filed December 13, 2011, as a petition for a writ of mandamus to compel the disti·ict comt to (a) grant a hearing on all of Petitioner's claims, (b) excuse any procedural defaults based upon the alleged suspension of the writ and delays by the state comts, and (c) order an acquittal. The disti·ict comt on August 17, 2011 granted habeas relief as to Petitioner's sentence. Petitioner's habeas is no longer in the disti·ict comt . The pro se petition for the exti·aordina1y writ of mandamus is denied. All pending motions are denied. (cbr) (Entered: 05/01/2012) 07/02/2012 592 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Comt of Appeals, 572 filed by Francis G Hernandez, CCA # 11 99013 The appellant's unopposed motion for a 3rd extension of time in which to file the opening brief is granted. The briefing schedule has been set Order received in this disu-ict on 7/2/12 (car) (Entered 07/05/2012) 07/23/2012 593 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Comt of Appeals, 572 filed by Francis G Hernandez, CCA # 11-99013. The appellant's unopposed motion for a 4th extension of time in which to file the opening brief is granted. The briefing schedule has been set. Order received in this disu-ict on 7/23/12. (car) (Entered: 07/24/2012) 10/17/2012 594 ORDER from 9th CCA filed, CCA # 11 99013 The appellee's unopposed motion for a 60-day extension of time in which to file the answering brief is granted. The answering brief is due December 21 , 2012 The optional reply brief is due within 14 days after service of the answering brief. Order received in this disu-ict on 10/17/2012. (dmap) (Entered 10/19/2012) 01/02/2013 595 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Comt of Appeals 572 filed by Francis G Hernandez CCA # 11-99013. The appellee's unopposed motion for a second extension of time in which to file the answering brief is granted. The answering brief is due Febrnaiy 19, 2013. The optional reply brief is due within 14 days after service of the answering brief. Order received in this disu-ict on 1/2/2013. (dmap) (Entered: 01/04/2013) 02/21/2013 596 ORDER from 9th CCA filed re Notice of Appeal to 9th Circuit Comt of Appeals 572 filed by Francis G Hernandez, CCA # 11-99013. The Briefing Schedule has been set. Order received in this disu-ict on 2/21/13 (mat) (Entered 02/28/2013) 03/06/2013 597 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Comt of Appeals 572 filed by Francis G Hernandez, CCA # 11-99013. The Briefing Schedule has been set. Order received in this disu-ict on 3/6/13. (mat) (Entered: 03/11/2013) 05/14/2013 598 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Comt of Appeals 572 filed by Francis G Hernandez CCA # 11 99013 The appellants unopposed motion for a second extension of time to file the reply brief is granted. The reply brief is due June 14, 2013 Order received in this disu-ict on 5/14/2013 (dmap) (Entered 05/15/2013) 04/02/2014 599 RECORD ON APPEAL sent to 9th Circuit Court of Appeals. Appeal nlllllber 11-99013. https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 44/46

App. K - 326 9/26/2019 CM/ECF - Californ ia Central District Record consists of28 volumes, 1 bulky document (Doc. 436), and 53 sealed documents. Re Notice of Appeal to 9th Circuit Comi of Appeals, 572 (mkr) (Entered: 04/02/2014) 01/08/2015 600 RECORD ON APPEAL sent to Circuit Comi re:, 008 transcripts and 1 box of Lodged Documents for Appeal case No: 11 -99013. Fo1warded to 9CCA Judge's Chambers. (rsm) Modified on 1/8/2015 Gre). (Entered: 01/08/2015) 01/21/2015 601 ORDER from 9th CCA filed, CCA # 11-99013. The case is refened to the Circuit Mediation Office of this comi for mediation, and its submission is defened pending fmiher order of the comi. The Circuit Mediator will contact the paiiies to schedule mediation and shall provide a status report to the panel within sixty (60) days following this order. Order received in this district on 1/21/15. (mat) (Entered: 01/22/2015) 12/29/2017 602 OPINION from Ninth Circuit Comi of Appeals filed re: Notice of Appeal to 9th Circuit Comi of Appeals, 572 filed by Francis G Hernandez. CCA # 11 -99013.The decision of the District Court is Reversed and Remanded with Instmctions. (shb) (Entered: 01/05/2018) 01/10/2018 603 ORDER from Ninth Circuit Comi of Appeals filed re: Notice of Appeal to 9th Circuit Comi of Appeals, 572 filed by Francis G Hernandez. CCA # 11 -99013. Respondent- Appellee's unopposed motion for an extension of time to file a petition for reheai·ing and/or rehearing en bane is GRANTED. Any petition shall be filed on or before Febmaiy 12, 2018. (mat) (Entered: 01/10/2018) 02/16/2018 604 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Comi of Appeals, 572 filed by Francis G Hernandez. CCA # 11 -99013. Pursuant to G.O. § 3.2.h, Judge Wardlaw has been drawn as the replacementfor Judge Pregerson. The panel for this case will now consist of Circuit JudgesREINHARDT, WARDLAW and NGUYEN.(mat) (Entered: 02/22/2018) 03/07/2018 605 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Comi of Appeals, 572 filed by Francis G Hernandez. CCA # 11 -99013 .Petitioner- Appellants unopposed motion for an extension of time to file hisresponse to the petition for reheai·ing and/or reheai·ing en bane is GRANTED. Theresponse shall be filed on or before April 23, 2018. (shb) (Entered: 03/09/2018) 04/20/2018 606 ORDER from Ninth Circuit Comi of Appeals filed. Petitioner-Appellants unopposed motion for a second extension of time to file his response to the petition for reheai·ing and/or rehearing en bane is GRANTED. The response shall be filed on or before May 7, 2018. re: Notice of Appeal to 9th Circuit Comi of Appeals, 572 . CCA # 11-99013. (yl) (Entered: 04/20/2018) 01/14/2019 607 ORDER AND OPINION from Ninth Circuit Comi of Appeals filed re: Notice of Appeal to 9th Circuit Comi of Appeals, 572 filed by Francis G Hernandez. CCA # 11 -99013. We affnm the district comi's denial of a writ of habeas c01pus as to Hernandezs guilt-phase claims relating to the first-degree murder convictions. AFFIRMED. (cai') (Entered: 01/16/2019) 01/23/2019 608 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Comi of Appeals, 572 filed by Francis G Hernandez. CCA # 11 -99013 .Petitioner- Appellants Unopposed Motion to Extend the Time to File the Petition for Reheai·ing (Dkt. No. 136) is GRANTED. (shb) (Entered: 01/24/2019) 05/03/2019 609 Order and Amended Opinion from Ninth Circuit Comi of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 572 filed by Francis G Hernandez. CCA # 11 - 99013. The panel filed an order withdrawing the prior opinion in this case, and filed a new opinion, which affamed the district comi's denial of a writ of habeas c01pus as to Francis Hernandez's guilt-phase claims relating to his California state convictions for https://ecf cacd.uscourts gov/cgi-bin/DktRpt.pl?700901315015041-L_ 1_ 0-1 45/46

App. K - 327 9/26/2019 CM/ECF - California Central District first degree murder; We affam the district comt's denial of a writ of habeas c01pus as to Hernandez's guilt-phase claims relating to the first-degree murder convictions. AFFIRMED [See doclllllent for complete details ] (mat) (Entered 05/03/2019) 05/13/2019 610 MANDATE of Ninth Circuit Comt of Appeals filed re: Notice of Appeal to 9th Circuit Comt of Appeals, 572 , CCA # 11 -99013.The judgment of this Comt, entered Janua1y 14, 2019 and amended May 3, 2019, takes effect this date. This constitutes the fo1mal mandate of this Comt issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. [See USCA Order and Opinion 607 , and USCA Amended Order and Opinion 609 (mat) (Entered: 05/15/2019)

I PACER Service Center I Transaction Receipt I 09/26/2019 17:04:27 Client fpdcac0087:2550647:0 . Code: ~ I 2 :90-cv-04638-RSWL Desc1·iption: !Docket Repo1t IS earch : Cliteria: End date: 9/26/2019 Billable Pages: 130 IEJl3.00 I

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