Raynard Cummings v. Michael Martel

concurring in part, dissenting in part, and concurring in the judgment:

I agree with Judge McKeown that the district court’s decision to deny the petition for habeas corpus must be affirmed. Therefore, I concur in her opinion, and in its excellent reasoning — except as to Section I.A. I respectfully dissent from Section I.A., and write separately to explain why the California Supreme Court’s conclusion that Deputy LaCasella was not a “key witness” under Turner must be afforded AEDPA deference.

I

I begin by noting that Section I.A. is dicta — whether it is included or excised, the result is the same because, as Section I.B. persuasively explains, Cummings cannot show that the California Supreme Court erred in evaluating Turner’s second prong — the “heart of the Turner analysis.”

Further, Section I.A. is not only unnecessary to resolution of this case, but is, in my view, incorrect. The California Supreme Court was not objectively unreasonable in concluding that a “key” witness under Turner must be the “principal” witness — not merely one of several witnesses whose testimony is probative of guilt. Furthermore, because its key witness analysis did not contravene Turner, and…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYNARD PAUL CUMMINGS, No. 11-99011 Petitioner-Appellant, D.C. No. v. 2:95-cv-07118-

CBM

MICHAEL MARTEL, Warden, California State Prison at San Quentin, OPINION Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted October 9, 2014—Stanford, California

Filed August 11, 2015

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F. O’Scannlain and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown; Partial Concurrence and Partial Dissent by Chief Judge Thomas; Partial Concurrence and Partial Dissent by Judge O’Scannlain SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Raynard Cummings’s habeas corpus petition challenging his conviction for first-degree murder and death sentence for killing Los Angeles Police Officer Paul Verna.

Cummings alleged that the prosecution violated his due process rights under Turner v . Louisiana, 379 U.S.…

Raynard Cummings was convicted of first-degree murder and sentenced to *1137 death for killing Los Angeles Police Officer Paul Verna. The California Supreme Court affirmed his conviction on direct appeal. People v. Cummings, 4 Cal.4th 1233 , 18 Cal.Rptr.2d 796 , 850 P.2d 1 (1993). It then denied his petitions for post-conviction relief. The district court denied Cummings’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 . We affirm.

Factual Background

On June 2, 1983, Los Angeles Police Officer Paul Verna pulled over an Oldsmobile for rolling through a stop sign. During the traffic stop, one or more of the car’s occupants shot Verna six times.

At Cummings’s trial, he did not dispute. that he was one of three occupants in the car when the shooting occurred. He sat in the rear passenger seat, behind a friend, Kenneth Gay, who was riding in the front seat. Cummings’s wife, Pamela, was driving.

Both Gay and Cummings were charged with first-degree murder. The government contended that Cummings shot Officer Verna once, then passed the gun to Gay, who got out of the car and fired five more shots. Cummings contested the “two-shooter” theory, claiming that Gay…

concurring in part and dissenting in part:

I agree with the majority that Raynard Cummings’s equal protection and ineffective assistance of counsel claims should be denied. I respectfully dissent, however, from the conclusion that Cummings’s due process claim must also be denied. The Supreme Court made clear in Turner v. Louisiana, 379 U.S. 466 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965), and Gonzales v. Beto, 405 U.S. 1052 , 92 S.Ct. 1503 , 31 L.Ed.2d 787 (1972) (per curiam), that a criminal defendant’s right to a fair trial is infringed when the government solicits key testimony from a bailiff who associated closely with the jury during the defendant’s trial. Because that is precisely what occurred during Cummings’s trial, the California Supreme Court’s decision to affirm his conviction, People v. Cummings, 4 Cal.4th 1233 , 18 Cal.Rptr.2d 796 , 850 P.2d 1 (1993), cannot reasonably be squared with Turner and Beto. I would therefore grant Cummings’s habeas petition.

I

Bailiffs play an important role during criminal trials by maintaining order inside the courtroom and ensuring the safety of jurors and court officers. But when they step beyond that traditional role by testifying…