Melvin Meffery Wade v. Arthur Calderon, Warden of San Quentin Attorney General of California

29 F.3d 1312 Melvin Meffery WADE, Petitioner-Appellant, v. Arthur CALDERON, * Warden of San Quentin; Attorney General of California, Respondents-Appellees. No. 90-56332. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 16, 1993. Decided May 16, 1994. Barry P. Helft, Donald J. Ayoob, Deputy State Public Defenders, San Francisco, CA, Michael R. Levine, Asst. Federal Public Defender, Portland, OR, Joel Levine, Encino, CA, as Special Counsel for petitioner-appellant. Pat Zaharopoulos, Deputy Atty. Gen., and Holly D. Wilkens, Supervising Deputy Atty. Gen., San Diego, CA, for respondent-appellee. Cliff Gardner, Fiedler, Gardner & Derham, San Francisco, CA, for amicus California Appellate Project. Kent S. Scheidegger, Sacramento, CA, for amicus Crim. Justice Legal Foundation. Appeal from the United States District Court for the Central District of California. Before: CANBY, REINHARDT, and TROTT, Circuit Judges. Partial Concurrences and Partial Dissents by Judges REINHARDT and TROTT. CANBY, Circuit Judge: 1 Melvin Meffery Wade, a California state prisoner sentenced to death, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. Wade…

Partial Concurrences and Partial Dissents by Judges REINHARDT and TROTT.

Melvin Meffery Wade, a California state prisoner sentenced to death, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition. Wade was convicted in the San Bernardino County Superior Court of first-degree murder. We review de novo the district court’s denial of the habeas petition. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). We affirm the district court’s denial of relief on the merits of those claims challenging Wade’s conviction. We hold, however, that Wade’s death sentence cannot stand for two reasons. First, Wade is entitled to a new special circumstances determination because the torture-murder special circumstance instruction failed to meet the requirements of the Eighth Amendment. 1 Second, Wade received ineffective assistance of counsel at the penalty phase of his trial.

Finally, we reject Wade’s various challenges to his habeas proceedings in district court.

I

FACTS

The facts of this case are set out at greater length in People v. Wade, 44 Cal.3d 975 , 244 Cal.Rptr. 905 , 750 P.2d 794 , cert. denied, 488 U.S. 900 , 109 S.Ct. 248 , 102 L.Ed.2d 237 (1988). Wade was 24…

concurring in part and dissenting in part:

I agree that the special circumstances instructions were constitutionally deficient, and that Wade’s counsel, S. Donald Ames, rendered ineffective assistance at the penalty phase. Accordingly, I concur in Parts I, II, V, and VI of Judge Canby’s opinion. However, I find the conclusion inescapable that Ames’s assistance at the guilt and sanity phases also fell far below the constitutional standard, and that, as a result, one’s confidence in the outcome of these proceedings is necessarily undermined as well. Therefore, I dissent from Parts III and IV of Judge Canby’s opinion. 1

I.

Whether or not Ames spent only twelve and a half hours on this case prior to trial, as his billings reflect, the record makes it abundantly clear that his pre-trial investigation and trial preparation were sorely deficient. Ames took over this case from prior counsel on December 29, 1981. Jury selection was set to begin on February 1,1982. Yet Ames did not seek a continuance to prepare, despite the fact that the essential information on Wade’s mental health was nowhere near complete. As a result of his failure to seek a continuance, Ames took the case to trial…

concurring in part and dissenting in part:

Nay, lay thee down and roar;

For thou hast kül’d the sweetest innocent

That e’er did lift up eye. 1

Melvin Wade killed 10-year old Joyce Tol-liver. Over a 22-hour period spanning two days, Wade punched her, hit her with a board from a broken couch, locked her in a dufflebag which was placed in a crawl space in the ceiling, slammed her head into a wall with such force that her head penetrated the wall, hung her by her neck from a wall using a dog leash, stomped on her chest, and made her drink her own urine. During the abuse and torture, Wade complained that “they” had turned him from a sweet and gentle man into a madman.

Wade later claimed that an alternate personality residing inside his body called “Othello” actually tortured and killed young Joyce. We may never know what precisely drove Wade to commit these terrible acts. We do know that a jury, after hearing all the evidence, provided “the censure of this hellish villain” 2 by finding Wade, not “Othello,” guilty of first-degree murder and sentencing him to death.

*1337 But the curtain on this tragedy has yet to close. Wade stands before us seeking habe-as relief. The majority…