Charles Franklin Murdoch, Jr. v. Roy Castro, Warden Bill Lockyer, Attorney General, Attorney General of the State of California

489 F.3d 1063 Charles Franklin MURDOCH, Jr., Petitioner-Appellant, v. Roy CASTRO, Warden; Bill Lockyer, Attorney General, Attorney General of the State of California, Respondents-Appellees. No. 05-55665. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 26, 2006. Filed June 12, 2007. Seymour I. Amster, Van Nuys, CA, for the petitioner-appellant. Rama R. Maline, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee. Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV 99-06900 RSWL. Before: MYRON H. BRIGHT, * A. WALLACE TASHIMA, and CARLOS T. BEA, Circuit Judges. Opinion by Judge TASHIMA; Dissent by Judge BRIGHT. TASHIMA, Circuit Judge. 1 For the second time, Charles Murdoch, a California state prisoner, appeals from the judgment of the district court denying his petition for a writ of habeas corpus. In his previous appeal, we held that the exclusion of a privileged letter could violate a defendant's Sixth Amendment right to confrontation and cross-examination, depending on the content of the letter. Murdoch v. Castro, 365 F.3d 699, 705 (9th Cir.2004) ("…

Opinion by Judge TASHIMA; Dissent by Judge BRIGHT.

For the second time, Charles Murdoch, a California state prisoner, appeals from the judgment of the district court denying his petition for a writ of habeas corpus. In his previous appeal, we held that the exclusion of a privileged letter could violate a defendant’s Sixth Amendment right to confrontation and cross-examination, depending on the content of the letter. Murdoch v. Castro, 365 F.3d 699, 705 (9th Cir.2004) (“Murdoch I”). We therefore remanded for the district court to review the letter and to determine whether the attorney-client privilege must yield to the petitioner’s right of cross-examination. Id. at 706 . On remand, after reviewing the letter, the district court held that there was no constitutional violation. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

I. BACKGROUND

On May 17, 1983, four men robbed the Horseshoe Bar in Long Beach, California. In the course of the robbery, one bystander was shot and killed; another was stabbed and severely wounded. The men recovered approximately $200 from the cash register and left behind a fingerprint. The crime went unsolved until 11 years later, when…

dissenting:

Persuaded by a jury’s verdict against him, Dino Dinardo now admits his role in the robbery of the Horseshoe Bar in 1983 and murder of a bystander. Buoyed by the hope of a lesser sentence and his professed remorse for his role in the crime, Dinardo became the state’s central witness against Charles Murdoch. In Murdoch I this court concluded that “[t]he record strongly suggests that without Dinardo’s accomplice testimony, the prosecution’s case against Murdoch was weak.” 365 F.3d 699, 701 (9th Cir.2004).

We must now determine whether a letter, given by Dinardo to his counsel before his trial but withheld from Murdoch because of the attorney-client privilege, would have been so crucial to Murdoch’s effective cross-examination of Dinardo that the court’s failure to disclose it violated Dinardo’s Sixth Amendment right to confrontation. The majority discounts the value of the letter because it contains the routine and unsubstantiated denials of a man charged with a crime and because, in any event, Dinardo was effectively cross-examined without it. I reach a different conclusion and therefore respectfully dissent.

I.

The court in Murdoch I, without the benefit of the…