Albert Cunningham v. Robert Wong

Opinion by Judge TALLMAN; Partial Concurrence and Partial Dissent by Judge PREGERSON.

OPINION

Petitioner-Appellant Albert Cunningham (“Cunningham”) appeals the district court’s denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254 . Cunningham was convicted of robbery/murder in California state court and was sentenced to death in 1988. He raises ten individual claims alleging error in both the guilt and penalty phases of his California criminal proceedings. His claims generally fall into three categories: 1) prosecutorial misconduct; 2) ineffective assistance of counsel; and 3) improper admission of post-arrest statements. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

I

A

At about 9:00 p.m. on December 1, 1985, Carmen Treto (“Treto”), the murder victim, drove his white-over-black Buick Le-Sabre to the Pair of Aces Bar in Pasadena, California. Treto had just received $1,400 or $1,500 in cash for a job, and he carried the money in various places on his person. Juvenal Gallegos, the bar’s doorman, and Angel Gallegos, the manager, both saw Treto at the bar that night, recognizing that he was very drunk.

At about 11:00 p.m., Juan Cebreros…

concurring in part and dissenting in part

The majority concludes that the California Supreme Court was not unreasonable in holding that Cunningham was not prejudiced by his counsel’s failure to present Dr. William Vicary, M.D., a psychiatrist, as a mitigating witness during the penalty phase of his trial. The majority reasons that Dr. Vicar/s testimony would have been duplicative and would have opened the door to a “damaging” rebuttal by a state expert.

In doing so, the majority fails to consider that this evidence would have gone directly to three of-the eleven factors the jury was required to consider in evaluating whether death or life without the possibility of parole was the appropriate sentence under California Penal Code § 190.3. Furthermore, without Dr. Vicary’s testimony, the jury was presented with no direct scientific testimony demonstrating that “at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to *1166 the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication.” Cal.Penal Code § 190.3. Dr. Yicary’s testimony would have filled that gap. He…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT CUNNINGHAM , No. 09-99008 Petitioner-Appellant, D.C. No. v. 2:02-CV-07170-

GHK

ROBERT K. WONG ,

Respondent-Appellee. OPINION

Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding

Argued and Submitted March 8, 2012—Pasadena, California

Filed January 8, 2013

Before: Harry Pregerson, Ronald M. Gould, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman; Partial Concurrence and Partial Dissent by Judge Pregerson CUNNINGHAM V . WONG

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction and capital sentence for robbery/murder.

The panel first held that the state court’s rejection of petitioner Cunningham’s prosecutorial misconduct claims was not unreasonable. The panel explained that the prosecutor did not violate Brady by suppressing either the victim’s medical records or his autopsy report because Cunningham’s attorneys possessed the…