Lavell Frierson v. Jeanne S. Woodford, Warden, of the California State Prison at San Quentin

463 F.3d 982 Lavell FRIERSON, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, of the California State Prison at San Quentin, Respondent-Appellee. No. 04-99002. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 2, 2006. Filed September 14, 2006. Gwen Freeman, Knapp, Petersen & Clarke, Glendale, CA, Edward A. Rucker, Santa Monica, CA, for the petitioner-appellant. Steven D. Matthews, Supervising Deputy Attorney General, Sacramento, CA, for the respondent-appellee. Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. CV-92-06251-DDP. Before BETTY B. FLETCHER, BARRY G. SILVERMAN, and RICHARD A. PAEZ, Circuit Judges. PAEZ, Circuit Judge. 1 Lavell Frierson appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging a California jury's special circumstances findings and death penalty verdict for his convictions for assault with a deadly weapon, robbery, kidnaping for the purposes of robbery, and first degree felony murder. In this opinion, we conclude that trial counsel failed to investigate and present important mitigation…

Lavell Frierson appeals the district court’s denial of his 28 U.S.C. § 2254 habe-as corpus petition challenging a California jury’s special circumstances findings and death penalty. verdict for his convictions for assault with a deadly weapon, robbery, *984 kidnaping for the purposes of robbery, and first degree felony murder. In this opinion, we conclude that trial counsel failed to investigate and present important mitigation evidence at the penalty phase of the third trial. Had counsel’s investigation been adequate, the sentencing jury could have heard evidence that Frierson suffered from multiple childhood head trauma and possible organic brain dysfunction, borderline mental retardation and a learning disability, a history of chronic substance abuse, and an emotional disorder. We also conclude that counsel’s performance was deficient when he failed to review juvenile court records and to challenge a key mitigation witness’s assertion of his privilege against self-incrimination at the penalty trial. There is a reasonable probability that, had the jury been able to consider this evidence, the outcome of the penalty proceedings would have been different. We therefore reverse the…

concurring:

At the penalty phase of this death penalty case, the most important issue was whether Frierson had ever killed before. To persuade the jury to impose a death sentence instead of life imprisonment, the prosecution presented evidence that fourteen years earlier, Frierson, as a juvenile, killed Douglas Green at a party and then laughed about it.

Frierson’s lawyer hired an investigator, Donald Ingwersen, who located several of the individuals who were at the party when Green was killed. One of these individuals, Phillip McCain, testified that he saw Louis White shoot Green, and that White called McCain after the shooting and admitted that he (White) was the killer. He further testified that Frierson was not involved.

Another individual, Michael Conception, testified that he didn’t see the shooting but was at the party and saw Louis White there with a gun.

Investigator Ingwersen contacted White himself prior to the penalty phase trial and was prepared to testify that White had confessed to him (Ingwersen) that he (White) had shot and killed Green. Defense counsel was unsuccessful in convincing the trial judge that White was “unavailable” and that White’s statement to…