Larry David Davis v. Jeanne S. Woodford, Warden, of California State Prison at San Quentin

ORDER AND AMENDED OPINION

ORDER

A majority of the panel has voted to deny the petition for rehearing and to deny the petition for rehearing en banc. Judge Fletcher votes to grant the petition for rehearing and so recommends with respect to the petition for rehearing en banc, in accord with the attached dissent. The opinion filed on June 24, 2003, shall be amended to incorporate Judge Fletcher’s dissent.

The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en bane. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied. The mandate shall not issue until it is determined whether, as a result of the amended opinion, any judge of the court desires to call for an en banc rehearing pursuant to General Order 5.4. No further petitions shall be accepted from the parties.

OPINION

Larry David Davis was convicted of first-degree murder and sentenced to death. After exhausting his California state appeals, he filed an amended petition for habeas corpus in federal district court, raising multiple constitutional challenges to both the conviction…

dissenting.

I originally concurred in the majority opinion. I continue to concur in the denial of guilt-phase relief. However, after close attention to the issues raised in the petition for panel rehearing and petition for en banc review, and a re-review of the relevant record, I confess error. I must and do here dissent from the majority opinion. The death penalty was wrongly imposed. As a threshold issue, I think there is a substantial question as to whether Davis was competent at the time of his penalty-phase trial. At a minimum Davis is entitled to an evidentiary hearing as to his competence.

Beyond that, after painstaking review of the penalty phase itself, I am persuaded that ineffective assistance of counsel probably affected the outcome, and that a juror’s bias may have tainted the proceedings to the extent that the verdict was not the product of unbiased decision-making.

I. Substantive Inoompetence

Davis convincingly argues that he is entitled to an evidentiary hearing on his claim that he was incompetent during the sentencing phase.

A. Standard for an Evidentiary Hearing 1

“In a habeas proceeding, a petitioner is entitled to an evidentiary hearing on the issue of…

384 F.3d 628 Larry David DAVIS, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, of California State Prison at San Quentin, Respondent-Appellee. No. 01-99014. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 5, 2002. Filed June 24, 2003. Amended September 21, 2004. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Tracy J. Dressner, La Crescenta, CA, and Terry J. Amdur, Pasadena, CA, for the petitioner-appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Carol F. Jorstad, Deputy Attorney General, Louis W. Karlin, Deputy Attorney General, and Shawn McGahey Webb, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee. Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-96-02443-DT. Before B. FLETCHER, KLEINFELD, and McKEOWN, Circuit Judges. ORDER AND AMENDED OPINION McKEOWN, Circuit Judge. ORDER 1 A majority of the panel has voted to deny the petition for…