and Submitted November 12, 2013 Pasadena, California
from the United States District Court for the Central
District of California Manuel L. Real, District Judge,
Presiding D.C. No. 2:97-cv-04591-R
R. Drozdowski (argued), Deputy Federal Public Defender; K.
Elizabeth Dahlstrom, Research & Writing Specialist;
Office of the Federal Public Defender, Los Angeles,
California; for Petitioner-Appellant.
J. Beale (argued), Deputy Attorney General; Holly Wilkens,
Supervising Deputy Attorney General; Julie L. Garland, Senior
Assistant Attorney General; Kamala D. Harris, Attorney
General; Office of the Attorney General, San Diego,
California; for Respondent-Appellee.
Before: Harry Pregerson, A. Wallace Tashima, and Marsha S.
Berzon, Circuit Judges.
Corpus / Death Penalty
panel affirmed the district court's denial of habeas
relief in a case in which California state prisoner John
Visciotti raised (1) a penalty-phase ineffective assistance
claim, focused on the allegation that key aggravating
evidence was introduced only as a result of counsel's
errors during the penalty proceedings; (2) a new claim that
the cumulative effect of counsel's ineffectiveness during
both the guilt and penalty phases of trial ultimately
prejudiced the penalty proceedings; and (3) a claim that the
trial judge's closure of the death-qualification voir
dire proceedings violated Visciotti's Sixth Amendment
right to a public trial.
panel held that, whether or not the ineffective assistance of
counsel claims have merit, they are foreclosed by the Supreme
Court's prior decision in this case, Woodford v.
Visciotti, 537 U.S. 19 (2002) (per curiam).
the trial judge's closure of death-qualification voir
dire, to which counsel did not object, the panel held that de
novo review continues to apply, post-AEDPA, to a contention
that ineffective assistance of trial counsel constitutes
cause to excuse a procedural default. The panel concluded
that counsel's failure to object to the closure of
death-qualification voir dire did not constitute deficient
performance, and that Visciotti therefore cannot demonstrate
cause to excuse his default of the public trial right claim.
Judge Berzon, joined by Judge Pregerson, wrote separately to
emphasize that this case illustrates that Supreme Court
summary reversals cannot, and do not, reflect the same
complete understanding of a case as decisions after plenary
BERZON, Circuit Judge:
1983, an Orange County jury convicted John Visciotti of
first-degree murder, attempted murder, and robbery. The same
jury then sentenced Visciotti to death.
direct, automatic appeal, the California Supreme Court
affirmed the judgment in its entirety. People v.
Visciotti, 2 Cal.4th 1 (1992) ("Visciotti
I"). Visciotti filed a state petition for writ of
habeas corpus, alleging ineffective assistance of his counsel
(IAC) during the guilt and penalty phases of his trial in
violation of the Sixth Amendment. See Strickland v.
Washington, 466 U.S. 668 (1984). The California Supreme
Court assumed that counsel afforded Visciotti
"inadequate representation in some respects" during
the penalty phase, but determined that Visciotti was not
prejudiced and so denied his petition. In re
Visciotti, 14 Cal.4th 325, 330 (1996)
next brought a federal habeas petition, alleging, among many
other claims, ineffective assistance of counsel during the
guilt and penalty phases of his trial. The district court
granted Visciotti's habeas petition as to the penalty
phase and denied it as to his conviction. We affirmed.
See Visciotti v. Woodford, 288 F.3d 1097 (9th Cir.
2002) ("Visciotti III"). The United States
Supreme Court summarily reversed our decision, holding that
we "exceed[ed] the limits imposed on federal habeas
review by" the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110
Stat. 1214 (codified at 28 U.S.C. § 2254). Woodford
v. Visciotti, 537 U.S. 19, 20 (2002) (per curiam)
remand and further proceedings, the district court denied
Visciotti's remaining claims. Visciotti appeals that
denial. He asserts two species of claims. First, he contends
that his counsel's ineffective assistance during the
guilt and penalty phases of trial requires habeas relief as
to his death sentence. Acknowledging that the Supreme Court
expressly denied relief on his ineffective assistance of
counsel claim, he argues that the Court did not decide the
particular claims he now appeals. Second, he claims that the
trial judge's closure of the death qualification voir
dire proceedings violated his Sixth Amendment right to a
I extensively details the facts of this case. 2 Cal.4th
at 28-33. We thus recite only a brief summary of the events
here, as described by the Supreme Court in Visciotti
[Visciotti] and a co-worker, Brian Hefner, devised a plan to
rob two fellow employees, Timothy Dykstra and Michael
Wolbert, on November 8, 1982, their payday. They
invited the pair to join them at a party. As the four were
driving to that supposed destination in Wolbert's car,
[Visciotti] asked Wolbert to stop in a remote area so that he
could relieve himself. When all four men had left the car,
[Visciotti] pulled a gun, demanded the victims' wallets
(which turned out to be almost empty), and got Wolbert to
tell him where in the car the cash was hidden. After Hefner
had retrieved the cash, [Visciotti] walked over to the seated
Dykstra and killed him with a shot in the chest from a
distance of three or four feet. [Visciotti] then raised the
gun in both hands and shot Wolbert three times, in the torso
and left shoulder, and finally, from a distance of about two
feet, in the left eye. [Visciotti] and Hefner fled the scene
in Wolbert's car. Wolbert miraculously survived to
testify against them.
Visciotti IV, 537 U.S. at 20.
parents retained Roger Agajanian for representation in the
pretrial proceedings, at the trial, and on appeal. Agajanian
was admitted to the bar in July 1973, had never before the
Visciotti case tried a capital case that went to a jury, and
had never conducted a penalty phase trial. See Visciotti
II, 14 Cal.4th at 336.
outset of Visciotti's 1983 trial, the court mentioned
that it would conduct "sequestered voir dire." The
court explained to the pool of prospective jurors that,
because the state could seek the death penalty, "we must
. . . inquire of each prospective juror individually to
determine in private with just the court, the two attorneys,
possibly the defendant and the court personnel present, your
attitudes and . . . attempt to determine if there exists any
prejudice or bias that may affect your attitude toward the
imposition of the capital punishment." On July 5, 6, 7,
11, 12, 13, and 14, the court conducted the death
qualification voir dire. The clerk's transcript for each
day reveals that the examinations were conducted "in
chambers, " in the presence of only the court, counsel,
court reporters, and, some of the time,
Visciotti.Agajanian never objected to this practice
on the record. Nor did the judge make findings on the record
justifying the private voir dire sessions.
prosecution's case was "based in major part on the
testimony of Michael Wolbert, and on [Visciotti's]
confessions." Visciotti I, 2 Cal.4th at 28. Of
particular relevance to this appeal, the parties agreed at
the start of trial that the prosecution would not in its
guilt phase case-in-chief present evidence of Visciotti's
previous conviction for assaulting William Scofield with a
deadly weapon. Visciotti had pleaded guilty to that offense
in 1978 and served time in state prison. The prosecution
abided by this agreement.
nevertheless had Visciotti testify about his criminal
history, including his 1978 conviction:
In his guilt phase testimony, [Visciotti] claimed that the
1978 incident occurred when two men who had a problem with
his roommate, Doug Favello, kicked in the door of the
apartment he shared with Favello, ran in, and cut
Favello's throat. A third person with a gun remained at
the door. [Visciotti] testified that he picked up the knife
dropped by the person who had stabbed Favello, ran after the
fleeing intruders, and stabbed the one who had slashed
Favello's throat just as that person (Scofield) was
trying to enter his own room. On cross examination
[Visciotti] conceded that he and several friends went to
Scofield's room later that night, denied that they had
kicked in the door to that room or that anyone had been in
bed in the room, and denied seeing, let alone stabbing, a
woman who had been in the room.
Visciotti I, 2 Cal.4th at 30 n.5.
rebuttal, the prosecution called Robert D. McKay, a Crime
Scene Investigator for the Anaheim Police Department, to
contradict Visciotti's testimony concerning the 1978
incident. McKay had investigated the scene of the 1978
incident, including Scofield's room. He testified with
respect to the door to the apartment that it "appeared
it had been forced open, " as the door molding and
latching had been partially destroyed and there was a hole in
the adjoining wall from "where the doorknob would have
struck the wall." He authenticated several photographs
he had taken of the crime scene, including images of two
knives, blood-stained bedding, and the damaged door to the
same night, at a hospital, McKay observed and photographed
two injured parties: Scofield and Kathy Cusack. He
authenticated at trial a photograph he had taken of several
of Cusack's stab wounds while she lay half naked on a
table in the hospital emergency room. McKay testified that
Cusack suffered from seven wounds, including "a deep
laceration to the lower right breast area, a deep long cut to
the inside of the right thigh, a cut to the right side, and
four cuts to the back of the right arm." McKay later
returned to the police department, where he observed Favello.
He testified that Favello "did not have blood on his
clothing or on his body, " nor any evidence of an injury
to his neck.
29, 1983, the jury found Visciotti guilty of first degree
murder of Dykstra, attempted murder of Wolbert, and robbery.
Visciotti I, 2 Cal.4th at 27-28. The jury "also
found that the murder was committed under the special
circumstance of murder in the commission of robbery, and that
[Visciotti] had personally used a firearm in the commission
of the offenses." Id. at 28 (internal citation
penalty trial began several days later. As the California
Supreme Court recounted, "[t]he only evidence presented
by the [prosecution] in the initial phase of the penalty
trial was the testimony of William Scofield, the victim of
the June 15, 1978, assault with a deadly weapon offense to
which [Visciotti] had pleaded guilty and for which he had
served a prison term." Visciotti I, 2 Cal.4th
testified as follows: At the time of the incident, he lived
with Kathy Cusack in the same complex as Doug Favello. The
dispute between him and Favello had arisen out of
Favello's "loss" of Cusack's cat. At
Cusack's request, Scofield spoke with Favello about the
loss of the cat. Their conversation degenerated into a fist
fight. Later that evening, Scofield went to Favello's
room armed with a knife and continued the argument. He did
not strike Favello with the knife he brandished.
following night, "five or six guys kicked the door [to
Scofield's room] down, " dragged him out of the
room, and assaulted him with some combination of baseball
bats, sticks, knives, and an ice pick. Scofield testified
that Visciotti, part of this group, stabbed him in his back.
During the altercation, Cusack remained in the room. When
Scofield returned to the room, he saw her "covered with
blood." Scofield's back required surgery.
prosecution next called Cusack to testify. Agajanian objected
on the ground that Visciotti had pleaded guilty only to
stabbing Scofield and was not charged in the criminal
information with assaulting Cusack. The court initially
overruled the objection.
after Cusack was sworn in but before the prosecution began to
examine her, the court again called counsel to the bench. The
court asked the prosecutor whether the Notice of Evidence of
Aggravation informed Visciotti that the prosecution would
rely on Cusack's testimony during the penalty phase. The
prosecutor replied that Cusack's testimony related to
facts "that are an integral part of the transaction
concerning [Visciotti's] prior felony conviction, "
which was included in the Notice. As the initial 1978 criminal
complaint had expressly referred to an assault on Cusack, the
prosecutor argued, even "a preliminary, absolutely
minimal threshold type of investigation on the part of the
defense which I'm sure a competent attorney like Mr.
Agajanian . . . would do . . . would alert them to the fact
there was more than one victim alleged."
court noted that the Notice "refers strictly to a
conviction for which the defendant stands accused . . . that
is, the assault with a deadly weapon upon William Scofield. .
. . [It] talks about what appears to be a single violation .
. . and it talks about a conviction." In the end, the
court precluded Cusack from testifying at all. The
prosecution offered no further evidence in its aggravation
"theory was to invoke jury sympathy for
[Visciotti's] family." In particular, Agajanian
presented evidence from various family members and friends
that Visciotti "had never been violent toward anyone in
[his] family, " and that "he was violent only when
under the influence of drugs." Visciotti I, 2
Cal.4th at 34.
through Visciotti's mitigation presentation, the
prosecution moved for permission to introduce Cusack as a
rebuttal witness at the close of Visciotti's case. The
court granted the motion, holding "that the evidence
introduced by the defense is opinion evidence by every
defense witness offered [during the penalty phase] . . . that
the defendant is in fact a non-violent person. The people are
entitled as a matter of law to rebut that by competent
evidence. Specific acts of violence and rebuttal are relevant
and are appropriate to rebut an opinion that the defendant is
in fact a non-violent person, so the court shall allow the
witness to testify as requested."
in turn, moved for a continuance "to find out all of
this information that this lady is apparently going to be
testifying to . . . ." After the court denied this
motion, Agajanian moved for production of "certain
reports . . . to help us prepare for this witness and
determine the truthfulness of the statements." The court
granted the second motion.
California Supreme Court summarized Cusack's testimony as
She first met [Visciotti] on June 12, 1978, at a party in
[Visciotti's] apartment. She had not seen him again until
the early morning hours of June 15 when he and several other
men broke into the apartment she shared with Scofield.
[Visciotti] had a knife. When the other men, who were beating
Scofield with bats and sticks, dragged Scofield out of the
room, [Visciotti] remained in the room where Cusack was
standing on the bed. He stabbed her through the right
forearm, which she had raised to protect herself, stabbed her
farther up that arm, and when she fell down onto the bed,
slashed her leg. He then stabbed her in the ankle. When
[Visciotti] attempted to stab Cusack in the abdomen she told
him she was pregnant. He nonetheless tried again to stab her
in the abdomen, but she rolled over and he stabbed her in the
side. He then stabbed her in the chest, slashed her shoulder,
stabbed her in the area of her breast. After stabbing Cusack
eight or more times, [Visciotti] began to carve up the walls
of the apartment, and to cut up the posters and pictures.
When Cusack hit him over the head with a stick, [Visciotti]
ran out of the apartment. She . . . had to be hospitalized
for treatment of her wounds.
Visciotti I, 2 Cal.4th at 33-34 (footnote omitted).
Cusack added that she was four months pregnant at the time of
the attack. Id. at 33 n.7. Cusack was the last
witness to testify in the penalty phase of Visciotti's
his closing argument, the prosecutor emphasized
Visciotti's attack on Cusack as the primary example of
Visciotti's history of violence. While the prosecutor
noted that Visciotti's conviction for assaulting Scofield
qualified as an aggravating prior conviction, he emphasized
Cusack's perspective on the incident.
part, Agajanian delivered a closing argument that the
California Supreme Court, on direct appeal, described as
"a rambling discourse, not tied to particular
evidence." Visciotti I, 2 Cal.4th at 82 n.45.
Agajanian "did not argue that any statutory mitigating
factor was present." Rather than arguing against the
aggravating factors or for any mitigating factors,
Agajanian's "approach was to note the tragedy and
the impact of the murder victim's death on other people,
and to ask the jury not to add to the tragedy or cause others
to suffer the same impact by condemning [Visciotti] to
death." Id. at 66 n.35. And, as Justice Brown
noted in her California Supreme Court habeas dissent
"Agajanian systematically conceded nine of the eleven
aggravating and mitigating factors set forth in Penal Code
section 190.3 . . . to the prosecution." Visciotti
II, 14 Cal.4th at 365 (Brown, J., dissenting). To the
extent Agajanian asserted any theory, it was to "ask
the jury to spare [Visciotti's] life because he was the
only bad child of a loving family who would suffer if
petitioner were to be executed." Id. at 331.
jury began deliberating on the afternoon of August 3. After
nearly two days of deliberations, the jury condemned
Visciotti to death.
Direct Appeal and State Post-Conviction Proceedings
automatically appealed to the California Supreme Court.
Agajanian continued to represent him for about seven years
following his conviction. During that time, Agajanian filed
but a single, thirty-page brief on Visciotti's behalf.
Also during that period, Agajanian was convicted in an
unrelated matter, in the District of Vermont, of two counts
of criminal contempt. ...