Jaturun Siripongs v. Arthur Calderon, Warden

35 F.3d 1308 Jaturun SIRIPONGS, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee. No. 92-56498. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 21, 1993. Decided July 1, 1994. As Amended on Denial of Petitions for Rehearing and Suggestions for Rehearing En Banc Oct. 13, 1994. Donald L. Morrow and Linda Schilling, Paul, Hastings, Janofsky & Walker, Costa Mesa, CA, for petitioner-appellant. Laura Whitcomb Halgren, Deputy Atty. Gen., San Diego, CA, for respondent-appellee. Janice L. Bergmann, California Appellate Project, San Francisco, CA, for amicus. Appeal from the United States District Court for the Central District of California. Before: SCHROEDER, PREGERSON, and FERNANDEZ, Circuit Judges. Opinion by Judge SCHROEDER; Concurrence and Dissent by Judge FERNANDEZ. SCHROEDER, Circuit Judge: 1 The petitioner-appellant Jaturun Siripongs, a native of Thailand, was convicted of first-degree murder and sentenced to death for a violent robbery/double homicide in a Los Angeles Asian specialty food market. His state appeal and two state petitions for collateral relief were unavailing, and he unsuccessfully sought habeas relief in the…

Opinion by Judge SCHROEDER; Concurrence and Dissent by Judge FERNANDEZ.

The petitioner-appellant Jaturun Siri-pongs, a native of Thailand, was convicted of first-degree murder and sentenced to death for a violent robbery/double homicide in a Los Angeles Asian specialty food market. His state appeal and two state petitions for collateral relief were unavailing, and he unsuccessfully sought habeas relief in the district court. The critical issue in this appeal is whether he is entitled to an evidentiary hearing in the district court on his claims of ineffective assistance of counsel.

It is undisputed that Siripongs’ trial counsel put on no defense at the guilt phase of the trial. In addition, trial counsel conducted little or no investigation into the possibility of contending, either at the guilt phase or at the penalty phase, that the murders had been committed by an accomplice. Counsel conducted no inquiry into Siripongs’ background in Thailand, where Siripongs was born, raised and lived until two years before the crimes in question. It is further undisputed that counsel had never before tried a capital case, and that counsel was running for Congress during most of the time…

concurring and dissenting:

I dissent from the majority opinion on the issues discussed in this opinion. As to its other determinations, I concur.

A. Ineffective Assistance of Counsel.

I do not agree that an evidentiary hearing regarding ineffective assistance of counsel is required in this case. As I see it, Siripongs wants to have the district court and us engage in the kind of hindsight that the Supreme Court has warned against. See Strickland v. Washington, 466 U.S. 668, 689-90 , 104 S.Ct. 2052, 2065-66 , 80 L.Ed.2d 674 (1984).

Counsel viewed the state’s case as a chain of circumstantial evidence. His strategy was to break the chain by showing that there was a reasonable doubt as to several of the links. That was for the purpose of showing that Siripongs was not even at the scene of the killing; that he, a non-violent, prayerful monk, was not a part of the robbery itself. The evidence developed at trial lent some support to that theory. That certainly appears to be reasonable under the circumstances and does not demonstrate ineffective assistance. But, says Siripongs, there was another strategy that was so superior that it should have been used. I do not agree.

The…