No. ____________ IN THE FRANCIS HERNANDEZ, Petitioner, v. 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 peti- tions 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 per- formance 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.