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Cain v. Chappell

United States Court of Appeals, Ninth Circuit

September 13, 2017

Tracy Dearl Cain, Petitioner-Appellant,
v.
Kevin Chappell, Warden, Respondent-Appellee.

          Argued and Submitted August 2, 2016 Pasadena, California

         Appeal 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.

          Kim 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 Respondent-Appellee.

          Before: Diarmuid F. O'Scannlain, Johnnie B. Rawlinson, and Consuelo M. Callahan, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus/Death Penalty

         The panel affirmed the district court's denial of a habeas corpus petition in a death penalty case.

         The 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.

         The 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.

         The 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.

          OPINION

          RAWLINSON, CIRCUIT JUDGE.

         In this 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.

         I. BACKGROUND

         In a 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 provided:

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 190.2(a)(17).

         The 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 robbery.

         A 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 Section 190.2(a)(17).

         Cain 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).

         The 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.

         During 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. See id.

         Mendoza 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.

         Mendoza 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."

         At the 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.

         When 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."

         The 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. . . ."

         The 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.

         Dr. 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 brain.[1]

         Dr. 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 brain." Dr.

         O'Halloran 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."

         During 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 raped.

         Edwin 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.

         Dr. 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 . . ."

         Detective 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.

         During 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.

         Cain 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.

         Detective 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.

         Prior 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. . . .

         Based on counsel's statement, the trial court did not pursue the issue further.

         The 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."

         The 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.

         During 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 altercation.

         Nicholas 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 ...


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