Michaels v. Davis

51 F.4th 904

Kurt MICHAELS, Petitioner-Appellant,

v.Ron DAVIS, Acting Warden of San Quentin State Prison; Attorney General for the State of California, Respondents-Appellees.

No. 15-99005

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 25, 2018 San Francisco, California

Filed October 18, 2022

Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California; Michael R. Belter, Law Office of Michael R. Belter, Monterey, California; for Petitioner-Appellant.

Michael T. Murphy (argued), Deputy Attorney General; Holly D. Wilkens, Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Attorney General's Office, California Department of Justice, San Diego, California; for Respondents-Appellees.

Before: Ronald M. Gould, Marsha S. Berzon, and Carlos T. Bea, Circuit Judges.

Per Curiam Opinion;

Partial Majority Opinion by Judge Bea

Dissent by Judge Berzon

OPINION

PER CURIAM:

Kurt Michaels was convicted and sentenced to death in California for the 1988 murder of JoAnn Clemons. On appeal from the district court's denial of his federal habeas petition, Michaels raised sixteen claims, two of which are uncertified. Reviewing his appeal under the deferential standards established in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see 28 U.S.C. § 2254(d), we affirm the district court with respect to all claims. This per curiam opinion addresses all issues except the penalty phase prejudice. The accompanying separate opinion and dissent address penalty phase prejudice.

I. Background

A. Murder of JoAnn Clemons

In the fall of 1988, twenty-two-year-old Kurt Michaels lived in an apartment in Oceanside, California, with four roommates. At the time, Michaels was dating sixteen-year-old Christina Clemons, then confined at Broad Horizons, an adolescent rehabilitation facility. Christina's mother JoAnn Clemons lived nearby, in Escondido.¹ Christina testified at trial that she had been physically and sexually abused by her mother from an early age. As recently as that September, Christina said, her mother struck her with a cast iron pan and forced her to engage in digital penetration and oral sex.

While on release from Broad Horizons for the weekend to stay with her mother in early September, Christina obtained a key to her mother's apartment. On September 29, Christina was again released from Broad Horizons for the weekend. This time, she went to visit Michaels in Oceanside. While there, Christina decided that she "wasn't going to go through it anymore," and told Michaels that she wanted her mother killed. Christina warned Michaels that she would commit suicide if Clemons were not killed. Velinda Davis, one of Michaels's roommates, overheard Michaels tell Christina, "Now we can knock off the old lady." According to Davis, Christina replied, "And then we can get the money." Christina gave Michaels her key to Clemons's apartment.

The next evening, Michaels asked Mark Hebert, another roommate, if he wanted to go to Escondido to do a "tax." According to Hebert, doing a "tax" referred to collecting a debt, usually through the use of force or the threat of force. Michaels promised Hebert some of the proceeds of the "tax," and Hebert agreed to participate. Michaels also recruited roommate Darren Popik to come along. Michaels told Popik that Clemons had $100,000 in life insurance coverage, which would go to Christina, and that these insurance proceeds would help Michaels and Christina start a new life. Michaels promised Popik $2,000 to $5,000 from the proceeds of Clemons's life insurance policy, as well as whatever was found in Clemons's apartment. Hebert and Popik arranged for an acquaintance, Joseph Paulk, to drive the getaway car after the "tax."

On the night of October 1,² Michaels and Popik left the Oceanside apartment, telling Davis that they were going to "tax" someone. At the last minute, Hebert decided not to participate. After Michaels and Popik left, Davis noticed that one of her kitchen knives was missing.

Dennis Crone, Michaels's former neighbor, testified that Michaels and Popik visited him at around 7:30 p.m. Michael Crawford, Dennis Crone's brother-in-law, spent time with Michaels and Popik at Crone's home and later gave them a ride to an intersection about a mile and a half away from Clemons's apartment building. Michaels and Popik stayed outside Clemons's apartment complex for two or three hours, waiting for Clemons to go to sleep. Michaels then used the key Christina had given him to enter the apartment; Popik accompanied him. When Michaels entered Clemons's bedroom, he tripped, waking Clemons. Popik initially tried to flee, but Michaels prevented him from leaving. Popik then began striking Clemons repeatedly in the face, and Michaels stabbed Clemons in the back with a knife, breaking it. Popik went into the kitchen and brought back another knife. Michaels used that knife to cut Clemons's throat.

Shortly after midnight, Clemons's neighbors heard sounds of a struggle coming from her apartment and called the police. When officers arrived, a neighbor told them that she had earlier seen two men walking toward Clemons's apartment. The officers knocked on the door of Clemons's apartment while Michaels and Popik were still inside, but the two escaped via a balcony. Entering the apartment, officers found Clemons's body in the bedroom. Popik was arrested near the apartment complex, but Michaels escaped in the getaway car driven by Paulk.

After leaving the crime scene, Michaels went to Camp Pendleton, a nearby Marine base, to visit two acquaintances, Rodney Hatch and Leon Madrid. Michaels told Hatch that he had cut a woman's throat during a robbery; he informed Madrid and two other witnesses that he was running from the law and "made a motion across [his] throat with his finger" when asked if he killed someone.

Two weeks later, police arrested Michaels while he was working at a nearby carnival. Michaels was interrogated soon after his arrest by detectives Allen and Gaylor. Michaels confessed during the interrogation that he had murdered Clemons and described the crime in detail. He told interrogators that he had killed Clemons "so Christina would not have to go back with her mother." Michaels eventually signed a statement saying that he had killed Clemons so Christina would not be forced to live with her mother and "revert to her old habits and problems." The admissibility of large parts of that confession is a major issue in this appeal.

B. State Trial and Direct Appeal

Michaels was charged with (1) the capital murder of Clemons with four special circumstances (financial gain, lying in wait, robbery, and burglary); (2) robbery; and (3) burglary. All three counts alleged the use of a knife and the infliction of great bodily injury.

The trial court initially appointed attorneys James Burns and Charles Duff to represent Michaels. Before trial, Burns was relieved due to conflicts with Michaels, and Duff was relieved for "personal reasons." In their place, the trial court appointed attorneys Richard Grossberg and Mark Chambers. Soon after the new appointments, Michaels filed two motions to remove Grossberg as lead counsel, contending that Grossberg was providing ineffective representation, and Grossberg moved to be relieved from the case. The trial court denied both motions. Michaels, unwilling to work with Grossberg, moved to represent himself. Michaels was permitted to proceed pro se, but Chambers and Grossberg remained on the scene as advisory counsel. As it turned out, Chambers conducted the entirety of the defense case; Grossberg did not participate in the trial. People v. Michaels, 28 Cal. 4th 486, 521, 122 Cal.Rptr.2d 285, 49 P.3d 1032 (2002) ("Michaels I").

Michaels's case proceeded to trial in April 1990. The only contested issues at the guilt phase were the degree of the murder, whether Michaels committed robbery and burglary, and whether the special circumstances were satisfied. Michaels maintained that he had killed Clemons to protect Christina from continued sexual and physical abuse by her mother; the prosecution argued that Michaels's motive was stealing Clemons's property and allowing Christina to collect the proceeds of her mother's life insurance policy. Id. at 501, 122 Cal.Rptr.2d 285, 49 P.3d 1032. The jury convicted Michaels on all counts and found all the alleged special circumstances true. Id. at 500, 122 Cal.Rptr.2d 285, 49 P.3d 1032.

The prosecution devoted most of the penalty phase to Michaels's criminal history and past misconduct, which included misdemeanor convictions for the theft of firearms from a neighbor as a juvenile, illegal possession of weapons, threatening Chad Fuller, and participating in the robbery of Chad Fuller, as well as multiple arrests. Chad Fuller testified about how Michaels had threatened him with a gun on one occasion, and a week or two later had helped two other men rob him. Fuller also testified that Michaels had returned much of the stolen property. Michaels's childhood neighbor testified that, as a teenager, Michaels had stolen his car and gun but later returned them. A childhood friend testified that, as a teenager, Michaels had shown him a revolver. The prosecution played a tape of Michaels's interrogation in full, and also introduced two pieces of paper on which Michaels had written lists of names, characterizing each document as a "hit list." These lists were admitted to show that Michaels sought a reputation as a professional killer, not that he intended to kill anyone on the lists. Michaels I, 28 Cal 4th. at 534, 122 Cal.Rptr.2d 285, 49 P.3d 1032

In mitigation, Michaels's sister and mother testified that Michaels's father was a violent alcoholic who beat him and his mother; that he witnessed his father sexually molesting his sister when she was young; and that he had attempted suicide at age eleven. Michaels's family moved...