and Submitted August 2, 2016 Pasadena, California
from the United States District Court No. 2:96-cv-02584-ABC
for the Central District of California Audrey B. Collins,
District Judge, Presiding
Jonathan C. Aminoff (argued) and Mark R. Drozdowski, Deputy
Federal Public Defenders; Hilary Potashner, Federal Public
Defender; Office of the Federal Public Defender, Los Angeles,
California; for Petitioner-Appellant.
Aarons (argued) and A. Scott Hayward, Deputy Attorneys
General; Lance E. Winters, Senior Assistant Attorney General;
Gerald A. Engler, Chief Assistant Attorney General; Office of
the Attorney General, Los Angeles, California; for
Before: Diarmuid F. O'Scannlain, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.
panel affirmed the district court's denial of a habeas
corpus petition in a death penalty case.
petitioner was convicted after a jury trial and sentenced to
death for two counts of first-degree murder, burglary, and
robbery. Distinguishing Gautt v. Lewis, 489 F.3d 993
(9th Cir. 2007), the panel held that the petitioner was not
denied procedural due process through inadequate notice of an
attempted rape special circumstance, and his constitutional
rights were not violated when the prosecutor presented this
special circumstance to the jury.
panel expanded the certificate of appealability to include
additional claims but held that these claims lacked merit.
The panel held that the petitioner did not establish
guilt-phase ineffective assistance of counsel in his
attorney's concession of guilt on the burglary counts,
failure to object to the attempted rape special circumstance,
or failure to investigate and present voluntary intoxication
and mental health defenses.
panel held that the petitioner did not establish
penalty-phase ineffective assistance in counsel's failure
to investigate and present mitigating evidence based on the
petitioner's substance abuse, neurological and
psychological problems, and family background. The panel
concluded that the petitioner did not establish an Eighth
Amendment claim based on intellectual disability under
Atkins v. Virginia.
RAWLINSON, CIRCUIT JUDGE.
death penalty case, Petitioner Tracy Cain (Cain) challenges
the district court's denial of his federal habeas
petition. Cain was convicted and sentenced to death for the
murder of a couple, William and Modena Galloway, who resided
in a home next to Cain's father. The district court
denied Cain's habeas petition, but granted a certificate
of appealability (COA) on Cain's claim that he did not
receive adequate notice of the attempted rape special
circumstance. We affirm the district court's denial of
Cain's habeas petition.
criminal complaint, Cain was charged with the first-degree
murders of the Galloways. The complaint further alleged
special circumstances premised on multiple murder, rape or
attempted rape, robbery or attempted robbery, and burglary in
connection with Mrs. Galloway's murder. With respect to
the rape special circumstance, Special Allegation No. 4
It is further alleged that the murder of Modena Shores
Galloway was committed by defendant, Tracy Dearl Cain, while
the defendant was engaged in the commission or attempted
commission of the crime of rape, in violation of Penal Code
section 261, within the meaning of Penal Code section
complaint also alleged special circumstances based on
multiple murder, burglary, and robbery or attempted robbery
associated with Mr. Galloway's murder. Cain was also
separately charged with the offenses of rape, burglary, and
second amended information alleged the same basic offenses
and special circumstances, albeit with some additional
details. Unlike the original criminal complaint, the amended
information did not specifically allege attempted rape as a
special circumstance. Instead, Special Allegation 6 stated:
It is further alleged that the murder of Modena Shores
Galloway was committed by defendant, Tracy D. Cain, while the
defendant was engaged in the commission of rape in violation
of Penal Code Section 261, within the meaning of Penal Code
did not raise any pre-trial objections to the allegations in
the amended information addressing the attempted rape special
circumstance. See People v. Cain, 892 P.2d 1224,
1248 (Cal. 1995) (In Bank) (explaining that, after the
prosecution's rebuttal, "the trial court raised
the issue of whether the information had provided
defendant with sufficient notice of the attempted rape basis
of the special circumstance") (emphasis added).
evidence at trial established that the Galloways lived next
door to Cain's father. See id. at 1233. Mr.
Galloway, who was sixty-three years old, suffered from poor
health and a back injury, and "had a habit of keeping
large amounts of cash in his house." Id.
the relevant period, Cain's father went on a trip,
leaving Cain and his younger brother, Val, at the residence.
See id. at 1234. On the night of the Galloways'
murders, Cain and Val had a party at their father's
house. See id. Ulysses Anthony Mendoza (Mendoza),
Floyd Clements (Clements), David Cerda (Cerda), Rick Albis
(Albis), and Kevin Walker (Walker) attended the party.
testified that Cain was agitated and upset during the party.
Cain threatened Mendoza and others when he was unable to find
ten dollars that was missing, and kicked a hole in a door
because he was angry with his brother.
related that, at approximately 11:00 pm, Cain asked Mendoza
to accompany him to the 7-Eleven to purchase beer. As they
were walking to the 7-Eleven, Cain asked Mendoza if he
"wanted to help him burglarize or rob that house next
door to his house." According to Mendoza, Cain stated
that he wanted to burglarize the residence "so he can
get thousands." Mendoza refused because he
"[d]idn't have the nerve."
7-Eleven, Mendoza and Cain met Richard Willis (Willis) and
Willis' friend, Shawn. Cain asked them if they had any
cocaine. While riding in Shawn's vehicle, Cain made a
"strangling motion" to Mendoza, after which Mendoza
asked to be dropped off for fear that "something foolish
would happen." Mendoza returned to the Cain residence.
Cain arrived at the residence, he "called [Mendoza] a
pussy . . . [b]ecause [Mendoza] wouldn't help him."
Mendoza then saw Cain and Cerda leave the residence. Cerda
returned to the Cain residence alone. At some point, Val
asked Cerda to check on his brother. After a few seconds or
minutes, Cerda returned without Cain. When Cain eventually
returned to the residence, he "had blood on his hat,
inner part of his hat, on his cheek, on his right foot, [and]
on his pant leg." Cain stated that "he had
thousands" and Mendoza recalled that Cain had "a
lot of money in his left palm." Cain also remarked that
he "blipped somebody."
next morning, Mendoza observed Cain sleeping in a recliner in
the living room. Mendoza noticed that Cain had $500 next to
him on a table. Mendoza also observed that Cain's
"knuckles were torn up." Later in the day, Mendoza
and Cain went shopping. Cain paid cash for new basketball
shoes, a hat, and a car stereo. According to Mendoza, Val
asked Cain if he had killed someone and Cain responded,
"That's on them. . . ."
following day, Mendoza attended a barbecue at the Cain
residence. During the barbecue, Cain threatened Mendoza if he
refused to let Cain use his truck. Mendoza noticed that Cain
had placed a box in the truck containing rags, sticks, and
wires. Cain subsequently disposed of the box near the beach.
Frederick Lovell, Chief Medical Examiner for Ventura County,
performed an autopsy on Mr. Galloway's body. Dr. Lovell
observed numerous bruises on Mr. Galloway's body and
"hemorrhage over the entire left side of [his] head from
front to back on bone, and . . . hemorrhage in and around the
brain underneath." Dr. Lovell stated that there was a
minimum of thirteen separate blows on Mr. Galloway's body
and that Mr. Galloway died from trauma to his
Ronald O'Halloran, Assistant Medical Examiner for Ventura
County, examined Mrs. Galloway's body. Dr. O'Halloran
observed "multiple injuries on [Mrs. Galloway's]
face." Mrs. Galloway suffered "a baselar skull
fracture" and "a hemorrhage in the space around the
determined that Mrs. Galloway died from "traumatic head
injuries." Dr. O'Halloran observed Mrs. Galloway
"lying on her back on the bed . . . with her feet and
legs extending over the side of the bed." According to
Dr. O'Halloran, Mrs. Galloway's "legs were
spread wide apart, exposing her genital area; and she was
nude from the waist down." There was also "a pillow
lying over her head" and "blood splatters on the
wall." "There was moist fluid coming out of her
vaginal area, and . . . a streak of brownish-red material
that appeared to be blood coming from or coming from close to
her vaginal area."
Mrs. Galloway's autopsy, Dr. O'Halloran
"surgically removed the vagina and examined it" for
injuries. Dr. O'Halloran discovered "a one
centimeter long tear . . . inside the vaginal opening. . .
." Due to the lack of hemorrhage, Dr. O'Halloran
opined that he may have caused the tear during his
examination. Dr. O'Halloran also noted that the absence
of injuries did not preclude a finding that Mrs. Galloway was
Jones (Jones), a criminalist, testified as a hair expert.
Jones determined that fifteen hairs found in Mrs.
Galloway's panties, pajama bottom, slipper socks, and
pajama top were microscopically similar to Cain's hair
samples. Jones eliminated Mendoza, Cerda, and Clements as
sources of the pubic hairs found on Mrs. Galloway's body.
Jones also performed a chemical analysis of enzymes in the
hair samples and determined that he could not eliminate Cain.
Bruce Woodling testified as an expert on sexual assault. Dr.
Woodling related that he had examined approximately 2, 000
sexual assault victims. After examining Mrs. Galloway, Dr.
Woodling concluded that Dr. O'Hallaron's testimony
that he may have caused the vaginal tear was not a
"likely explanation." Dr. Woodling related that he
had never observed a similar tear during removal and
examination of the vagina in the rape cases in which he
participated. Dr. Woodling opined that the laceration was
"a classic injury of a forced penile-type penetration .
Billy Tatum of the Oxnard Police Department testified that he
investigated the Galloway homicides. Detective Tatum spoke
with Mendoza and did not observe any injuries on
Mendoza's hands. Detective Tatum subsequently obtained an
arrest warrant for Cain and interviewed Cain at the police
station. The tape recorded interview was played to the jury.
the taped interview, Cain initially stated that he remained
at his residence on the night of the Galloways' murders,
except to go to the store, and "stayed at home" the
following day. Cain related that he found out about the
Galloways' murders on the following Monday, when he
returned home from work. Cain explained that the bruise on
his shoulder was from his girlfriend and the cuts on his
fingers were from playing with his dog.
eventually admitted that he went into the Galloways'
residence, but denied committing the murders. After inquiring
if the police had any evidence that Cain "killed them,
" Cain admitted that he and other individuals entered
the residence on Saturday to "wipe[ ] away the
fingerprints." Cain also eventually acknowledged that he
was in the Galloways' residence during the murders, and
he asserted that Albis placed a pillow cover over Mrs.
Galloway's face. Cain mentioned that Cerda and Mendoza
hit Mr. Galloway and Mendoza struck Mr. Galloway with a
chair. According to Cain, his fingerprints may have been on
the chair because he "picked it up and . . . moved
it." Cain conveyed that he did not know who raped Mrs.
Galloway, but that Albis struck her in the hallway and placed
her on the bed.
Tatum testified that there was a malfunction in the audio
tape during the interview, and the tape "just stopped
playing . . . on Side 1." During the malfunction, Cain
admitted to stealing $500 from the Galloways' residence.
to jury deliberations, the trial court expressed concern
about the attempted rape special circumstance. Specifically,
the trial court observed that the information did not
specifically charge attempted rape, although the information
charged attempted robbery. Cain's counsel responded:
But to be quite candid about it, I've read Section 190.2
numerous times. I'm aware it says commission or attempted
commission. I can't in good conscience say that I am
surprised at this late date. I think it's clear the
entire thrust of the testimony from all the doctors was an
actual rape . . . I'm aware of the section. I'm aware
how it is plead, and I'm aware of these jury
instructions. And I'm not going to sit here and pretend
that I'm surprised and I'm going to holler foul at
the D.A. at this late time. . . . I was aware and I heard
[the prosecutor] and I could have objected but I didn't
because I think that he's entitled to argue under Section
190.2 commission or attempted commission. . . . But I
don't think Tracy Cain and the defense is [sic]
prejudiced. . . .
on counsel's statement, the trial court did not pursue
the issue further.
trial court instructed the jury that it could find the
special circumstance if "the murder was committed while
the defendant was engaged in or was an accomplice in the
commission or attempted commission of a burglary[, ] a
robbery or a rape" and that "the defendant intended
to kill a human being or intended to aid another in the
killing of a human being[.]" The trial court also
instructed the jury that "the special circumstance
referred to in these instructions is not established if the
burglary, robbery or rape was merely incidental to the
commission of the murder."
jury found Cain guilty of first-degree murder, burglary, and
robbery, but acquitted Cain on the rape charge. The jury
determined that Cain murdered Mr. Galloway during the
commission or attempted commission of burglary and robbery.
The jury also concluded that Cain murdered Mrs. Galloway
during the commission or attempted commission of rape,
burglary, and robbery.
the penalty phase, Anita Parker (Parker) testified that she
was assaulted by Cain. According to Parker, Cain struck her
in the head with a tire iron and kicked her during an
Perez (Perez), a juvenile detention officer, related that
Cain hit him with his fist as Perez was escorting Cain.
According to Perez, his nose was broken ...