McDermott v. Johnson

85 F.4th 898

Maureen McDERMOTT, Petitioner-Appellant, v. Deborah K. JOHNSON, Warden, Central California Women's Facility, Respondent-Appellee.

No. 17-99005

United States Court of Appeals, Ninth Circuit

Argued and Submitted June 20, 2023 Seattle, Washington

Filed October 26, 2023

Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding, D.C. No. 2:04-cv-00457-DOC

Lauren Collins (argued) and Michael D. Weinstein, Assistant Federal Public Defenders; Hilary Potashner and Cuauhtemoc Ortega, Federal Public Defenders; Amy Karlin, Interim Federal Public Defender; John S. Crouchley, Attorney; Federal Public Defender's Office, Los Angeles, California; for Petitioner-Appellant.

Seth P. McCutcheon (argued), Douglas L. Wilson, A. Scott Hayward, John Yang, and Xiomara Costello, Deputy Attorneys General; Ronald S. Matthias, Senior Assistant Attorney General; Xavier Becerra, California Attorney General; California Attorney General's Office, Los Angeles, California; for Respondent-Appellee.

Before: Kim McLane Wardlaw, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges.

OPINION

WARDLAW, Circuit Judge:

On April 3, 1990, Maureen McDermott was sentenced to death after a California jury found her guilty of attempted murder and first-degree murder of Stephen Eldridge, finding true the special circumstances of lying in wait and murder for financial gain. McDermott now appeals the district court's denial of her 28 U.S.C. § 2254(d) habeas petition.

In her federal habeas petition, McDermott argues, inter alia, that during trial the prosecutor committed prejudicial misconduct during penalty-phase closing arguments by quoting the Bible. Because the state court habeas decision was not contrary to "clearly established Federal law, as determined by the Supreme Court of the United States," Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d), we affirm the district court's denial of McDermott's prosecutorial misconduct claim.

Further, we grant a Certificate of Appealability ("COA") as to McDermott's claim that the prosecutor improperly used peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but nevertheless affirm the district court's denial of habeas relief on that claim. Finally, we deny COAs as to McDermott's remaining ineffective assistance of counsel claims.

I.

On April 28, 1985, Stephen Eldridge was stabbed to death in the home he shared with McDermott. People v. McDermott, 28 Cal. 4th 946, 962-66, 123 Cal.Rptr.2d 654, 51 P.3d 874 (2002). McDermott hired Jimmy Luna, McDermott's former coworker and friend, to murder Eldridge. Luna, in turn, hired the brothers Marvin and Dondell Lee to assist him. The three jointly stabbed Eldridge to death on April 28, 1985.

At the time of the murder, McDermott was a 37-year-old registered nurse working at Los Angeles County-USC Medical Center during the day, while providing nursing care to an individual named Lee LaPorte at his home in the evening. Eldridge was a 27-year-old self-employed landscaper. Eldridge and McDermott lived together in a home that they owned as joint tenants. In December 1984, McDermott and Eldridge each bought $100,000 in life insurance, designating the other as the sole beneficiary. In early 1985, McDermott and Eldrige's relationship deteriorated.

Near the end of February 1985, McDermott and Luna planned Eldridge's murder. McDermott told Luna that she was the beneficiary of Eldridge's insurance policy and offered him $50,000 to kill Eldridge. Luna agreed. McDermott told Luna that she wanted Eldridge stabbed because a gun would make too much noise and that she wanted the murder to look like a "homosexual murder" so that the police would not investigate it as vigorously as other killings.

On three occasions, McDermott arranged for Luna to be in the house with Eldridge to facilitate the murder; however, each time Luna became frightened and did not carry out the plan. McDermott then suggested that Luna find someone to assist him.

In March 1985, Luna asked his friend Marvin Lee to help him commit the murder. He offered Marvin $3,000, and Marvin agreed. On March 21, 1985, Luna and Marvin attempted to kill Eldridge, threatening him with a knife, cutting his buttocks and yelling homosexual epithets. Again, the murder attempt failed. Eldridge ran away, and Luna and Marvin left. Eldridge was taken by ambulance to a hospital for treatment.

After the failed murder attempt, McDermott and Luna spoke on several occasions during which they discussed the plan to kill Eldridge and what they would do with the anticipated insurance proceeds.

On April 28, 1985, Luna met with Marvin and Marvin's brother Dondell Lee. Luna offered Dondell money to help commit the murder. Luna then called McDermott, and they once again discussed the plan: McDermott would leave a front bedroom window open for them to enter the house, and Luna would tie her up so that it looked as if she was a robbery victim.

When Eldridge arrived home, Dondell met him with a rifle (owned by McDermott and provided to him by Luna). Marvin then grabbed Eldridge by the neck in a chokehold and Luna stabbed him repeatedly until he slumped to the floor. At McDermott's request, Luna also cut off Eldridge's penis.

The autopsy found that Eldridge had been stabbed 44 times and that his penis was severed postmortem. McDermott was arrested in August 1985 and charged with attempted murder, murder, and special circumstance allegations of murder for financial gain and lying in wait.

II.

On March 2, 1990, a jury found McDermott guilty of attempted murder and first-degree murder of Eldridge, finding true the special circumstances of murder for financial gain and by means of lying in wait. On April 3, 1990, the jury returned a verdict of death.

McDermott's capital conviction was automatically appealed to the California Supreme Court ("CSC") under California state law. Cal. Const. art. VI; § 11; Cal. Penal Code § 1239. On August 12, 2002, the CSC affirmed McDermott's conviction and sentence. McDermott, 28 Cal. 4th at 1006, 123 Cal.Rptr.2d 654, 51 P.3d 874. On October 30, 2002, the CSC modified its opinion, holding that the trial court did not violate McDermott's statutory rights or her right to due process. The United States Supreme Court denied certiorari. McDermott v. California, 538 U.S. 1014, 123 S.Ct. 1930, 155 L.Ed.2d 851 (2003).

On November 8, 2000, McDermott filed her first state habeas petition in the CSC. On January 14, 2004, the CSC summarily denied the petition "on the merits."

On January 14, 2005, McDermott filed this federal habeas petition and simultaneously filed her second state habeas petition in the CSC. The district court granted McDermott's motion to stay the federal proceedings pending resolution of the state proceedings. On January 3, 2007, the CSC denied the second state habeas petition both on the merits and on procedural grounds.¹ The district court lifted the stay of the federal proceedings on January 25, 2007.

On March 23, 2007, McDermott filed the First Amended Petition ("FAP") in the federal habeas proceeding. On June 25, 2010, the district court granted an evidentiary hearing on several of McDermott's claims, but vacated the hearing after the Supreme Court issued its opinion in Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (holding that federal court review under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits.").

On January 5, 2015, the district court denied on the merits the claims for which it had previously granted an evidentiary hearing and directed the parties to submit briefs addressing the merits of the remaining unadjudicated claims. On August 15, 2017, the court issued an order denying the remaining claims, but granting a COA on McDermott's prosecutorial misconduct claim. McDermott filed a motion to alter, amend, or vacate the judgment, asking the district court to permit further briefing on the procedural bar that formed the basis of its decision on the certified claim. On April 2, 2018, the district court denied the motion. McDermott then filed a motion to expand the COA to include her motion to alter, amend, or vacate the judgment, which the district court denied on May 14, 2018.

III.

We review de novo a district court's denial of habeas relief. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir. 2019). Because McDermott filed her federal habeas petition after April 24, 1996, AEDPA applies to this case. 28 U.S.C. § 2254; Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014).

IV.

A.

The district court did not err in denying McDermott's prosecutorial misconduct claim. McDermott argues that the prosecutor committed misconduct during the penalty phase closing argument by referencing Biblical verses to persuade the jury to impose a death sentence. McDermott argues the following statements were misconduct:

Now, I'm [not] a biblical scholar. I don't know much about the Bible. But most biblical scholars, as I understand it, interpret the commandment "Thou shalt not kill" as in actually meaning "thou shall not commit murder."

And there are in fact several references to the death penalty in the Bible. In Exodus 21, verse 12, the Bible states, "Whoever strikith [sic] a man a mortal blow must be put to death."

And in verse 14, which I would suggest to you is incredibly apropos for this situation, "When a man kills another [man] after maliciously scheming to do so, you must take him from my altar and put him to death."

McDermott did not raise a prosecutorial misconduct claim until her direct appeal. The CSC denied the claim in a reasoned decision, applying California's contemporaneous-objection rule. Citing to People v. Hill, 17 Cal. 4th 800, 820, 72 Cal.Rptr.2d 656, 952 P.2d 673 (1998), the CSC stated that "a defendant may not complain on appeal of prosecutorial...