Sanders v. Davis

23 F.4th 966

Ronald L. SANDERS, Petitioner-Appellant,

v.Ronald DAVIS, Warden, San Quentin State Prison, Respondent-Appellee.

No. 17-16511

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 25, 2021 Pasadena, California

Filed January 13, 2022

Nina Rivkind (argued), Berkeley, California, for Petitioner-Appellant.

Lewis A. Martinez (argued) and Ryan McCarroll, Deputy Attorneys General; Louis M. Vasquez, Supervising Deputy Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Fresno, California; for Respondent-Appellee.

Before: M. Margaret McKeown, Richard A. Paez, and Eric D. Miller, Circuit Judges.

PAEZ, Circuit Judge:

In 1982, Ronald Sanders was convicted for the murder of Janice Allen and sentenced to death following a jury trial. Sanders's attorney, Frank Hoover, had never represented a capital defendant before and conducted a minimal penalty phase investigation. Sanders told Hoover that he viewed a life without parole ("LWOP") sentence as unacceptable and that he did not want Hoover to present a penalty defense. Viewing Sanders's objection as a personal choice that was not his role to challenge, Hoover presented no evidence and made no argument during the penalty phase.

In this appeal, Sanders challenges the district court's denial of his habeas petition under 28 U.S.C. § 2254 following an evidentiary hearing. He contends that Hoover rendered ineffective assistance of counsel at the penalty phase due to Hoover's failure to investigate mitigation evidence and properly inform and advise him about the penalty phase.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). In this pre-Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (1996) ("AEDPA") case, we reverse and remand. We conclude that Hoover's minimal mitigation investigation and his failure to adequately inform and advise Sanders about the penalty phase constituted deficient performance. We further conclude that Hoover's deficient performance prejudiced Sanders, because there is a reasonable likelihood that Sanders would have allowed the presentation of a penalty defense had Hoover reasonably informed and advised him, and because there is a reasonable likelihood that at least one juror would have changed her mind and voted to impose an LWOP sentence.

I.

A.

We briefly recite the facts of the crime. In doing so, we draw from the California Supreme Court decision affirming Sanders's conviction on direct appeal. See People v. Sanders , 51 Cal.3d 471, 273 Cal.Rptr. 537, 797 P.2d 561, 565–67 (Cal. 1990).

On January 21, 1981, Sanders participated in a botched attempt to rob a couple, Dale Boender and Janice Allen, in Bakersfield, California. 273 Cal.Rptr. 537, 797 P.2d at 565–66. Boender made a living selling cocaine and marijuana, and had previously sold drugs to an acquaintance of Sanders, Brenda Maxwell. Id. , 273 Cal.Rptr. 537, 797 P.2d at 565. Maxwell, her aunt Donna Thompson, and Sanders launched a plan to rob Boender of money and drugs. Id. Boender and Allen arrived at Maxwell's home to make a sale, but when the two entered, Sanders began beating Boender with a piece of a pool stick. Id. , 273 Cal.Rptr. 537, 797 P.2d at 566. Boender and Allen escaped. Id. After staying with a relative for two days, Boender and Allen returned to their apartment and told their roommates about the assault at Maxwell's home. Id.

Meanwhile, Sanders was concerned that Boender would identify him, and Maxwell was concerned that Boender would recognize that she had set him up. Id. The two discussed these concerns with each other. Id. They picked up another person, John Cebreros, and then headed to Thompson's home. Id. While at Thompson's home, Maxwell made calls to people that both she and Boender knew and claimed that she had been victimized along with Boender. Id.

Around dinnertime on January 23, 1981, the day Boender and Allen returned to their apartment, Boender opened the door to his apartment when he heard a knock and saw Cebreros and Sanders at the door. Id. Sanders was armed with a gun and pushed Boender to the ground. Id. Boender and Allen were bound and blindfolded. Id. One of the assailants asked Boender where he kept his cocaine and removed money from Boender's pocket. Id.

Boender also heard rummaging around the apartment, muffled talking (including one of the assailants saying he wanted to leave), and banging noises. Id. Boender was dragged to a different room and felt a blow to the head, after which he could not recall anything more. Id.

Boender's roommates returned home early the next morning and found Allen's dead body and Boender lying in a pool of blood. Id. Allen and Boender had been bound with electrical cord. Id. Boender had suffered a skull fracture but was conscious when police arrived. Id. Allen died from a head wound that fractured her skull and lacerated her brain. Id. The police arrested Sanders and Cebreros and, among other charges, they were charged with the murder of Allen and the attempted murder of Boender.

B.

Following Sanders's arrest, a Kern County court clerk asked local attorney Frank Hoover to represent Sanders.¹ Hoover initially declined the appointment due to his lack of experience representing capital defendants. Hoover later accepted the appointment, after an attorney with capital defense experience had been appointed to represent Cebreros.²

Hoover had little experience as defense counsel in serious felony cases and little knowledge of the penalty phase of a capital case. After graduating from law school in 1972, Hoover joined the Kern County District Attorney's office. Hoover tried numerous felony cases as a deputy district attorney. He worked on several homicide cases while at the office, but never tried a capital case. After leaving the District Attorney's office, he entered private practice and worked primarily on business litigation and real estate development. He eventually began to accept criminal cases, and characterized the cases he worked on as "[s]imple, easy, petty thefts, drunk driving, assault and battery, [and] prostitution." Once he began working on Sanders's case, Hoover did not seek out training on defending a capital case, although such training was available.

Early in his preparation for trial, Hoover retained the services of Dodd Investigations and Security ("Dodd"). Dodd was owned by a "good friend" of Hoover who had helped Hoover "get ... start[ed] in the whole law enforcement business." When Hoover retained Dodd, he did not know whether Dodd had any experience in conducting investigations for the penalty phase of a capital case. Hoover did not provide Dodd with any specific directions for its investigation.

In one of Hoover's first interviews with Sanders, Sanders provided false information about his background. Sanders told Hoover that he had no criminal history and that he had a master's degree in petroleum geology. Prior to trial, the prosecutor disclosed Sanders's involvement in multiple robberies in 1970, one of which resulted in a 1971 Orange County armed robbery conviction. This disclosure surprised Hoover, who then asked Dodd to look into Sanders's past arrests and convictions in Orange County. Although Dodd identified the witnesses and Sanders's accomplices in those cases, neither Hoover nor Dodd interviewed them.

Hoover focused his investigation and trial preparation on the guilt phase. He told Sanders that "[the] case was remarkably weak for a first-degree death prosecution." Hoover's assessment was based on the lack of physical evidence tying Sanders and Cebreros to the crime, as only the testimony of two unreliable witnesses, Boender and Maxwell, provided the link. In contrast, Cebreros's attorney, Stanley Simrin—an experienced capital defense attorney—began his preparations for the guilt and penalty phases well before the trial began. He worked closely with his investigator, Roger Ruby, on the penalty phase investigation.

At some point before trial, Sanders informed Hoover that he was opposed to an LWOP sentence. Sanders did not want to be executed, but also found LWOP unacceptable and opposed requesting such a sentence. Hoover later testified at the evidentiary hearing that "[Sanders] wanted [him] to work on the case and get an acquittal, which is what [Sanders] felt the evidence should get for him," and that "[Sanders] did not want [him] to do anything that would result in a sentence of life without the possibility of parole." Hoover testified that he did not believe it was his role to change Sanders's mind and that he did not try to change Sanders's mind. As the trial approached, Hoover believed that Sanders would resist the presentation of a penalty defense if he were convicted of capital murder, but Hoover was not worried about Sanders's opposition to a penalty phase defense because he believed acquittal was likely.

The trial ended on August 3, 1981 with a divided jury: eleven to one in favor of a guilty verdict for Sanders and Cebreros on all counts. The court scheduled a retrial in late November 1981. Despite the outcome of the first trial, Hoover continued to devote a "hundred percent of [his] energy" to prevailing at the guilt phase of the retrial because he believed the prosecution's case was weak.

At the second trial, the prosecution presented testimony from Maxwell and Boender, as well as physical evidence and other testimony. Forensic experts testified that Sanders's fingerprints had been found on a roll of duct tape in Maxwell's home. Boender's neighbors testified to hearing noises coming from his apartment that evening, between 8:15 p.m. and 10:00 p.m. The coroner testified to the extent of the damage to Allen's skull, including "the large amounts of blood and brain matter" exposed on her head. Police officers testified that Maxwell and Boender identified Sanders and Cebreros in photographic lineups. A friend of...