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Pensinger v. Chappell

United States Court of Appeals, Ninth Circuit

June 2, 2015

BRETT PATRICK PENSINGER, Petitioner-Appellant,
v.
KEVIN CHAPPELL, Warden, Respondent-Appellee. BRETT PATRICK PENSINGER, Petitioner-Appellee,
v.
KEVIN CHAPPELL, Warden, Respondent-Appellant

Argued October 9, 2014.

Submitted, Pasadena, California June 2, 2015.

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Appeal from the United States District Court for the Central District of California. D.C. No. 2:92-cv-01928-DSF. D.C. No. 2:92-cv-01928-DSF. Dale S. Fischer, District Judge, Presiding.

SUMMARY[*]

Habeas Corpus/Death Penalty

The panel affirmed the district court's partial grant and partial denial of California state prisoner Brett Pensinger's pre-AEDPA habeas corpus petition, upholding his kidnapping and first-degree murder conviction but overturning his sentence of death.

The panel rejected the State's request to invoke the panel's discretion to sua sponte apply the non-retroactivity bar under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which ordinarily prevents a federal court from granting habeas relief to a state prisoner based on a rule announced after his conviction and sentence became final, to bar Pensinger's instructional error claim.

The panel rejected the State's challenge to the district court's holding that the trial court violated Pensinger's constitutional rights by failing to instruct the jury sua sponte in accordance with People v. Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (1980), which held that a kidnap-murder special circumstance requires proof that the kidnapping was committed for an independent felonious purpose (i.e., not merely incidental to the murder). The panel held that instructional error occurred, and that the error was not harmless.

The panel also rejected Pensinger's ineffective assistance of counsel claim based on his trial counsel's failure to request a Green instruction, where counsel's failure to request the instruction comported with the theory of his defense.

Jan B. Norman (argued), Los Angeles, California, for Petitioner-Appellant.

Lise S. Jacobson (argued) and Robin Urbanski, Deputy Attorneys General; Julie L. Garland, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, San Diego, California, for Respondent-Appellee.

Before: Richard C. Tallman, Carlos T. Bea, and John B. Owens, Circuit Judges.

OPINION

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TALLMAN, Circuit Judge:

Brett Patrick Pensinger was convicted of kidnapping and first-degree murder and sentenced to death in 1982. After his California state appeals, Pensinger filed a writ of habeas corpus in federal court prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, 110 Stat. 1214. The district court granted in part and denied in part Pensinger's federal habeas petition, ultimately vacating the kidnap-murder special circumstance and the death sentence. Both parties appealed. " [B]ecause in most matters it is more important that the applicable rule of law be settled than that it be settled right," we agree with the district court and uphold Pensinger's conviction for the kidnappings and murder but overturn his sentence of death. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815, 1932 C.B. 265, 1932-1 C.B. 265 (1932) (Brandeis, J., dissenting).

We reject the State's request that we invoke our discretion to sua sponte apply the non-retroactivity bar under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which ordinarily prevents a federal court from granting habeas relief to a state prisoner based on a rule announced after his conviction and sentence became final, to bar Pensinger's instructional error claim. We reject the State's challenge to the district court's holding that the trial court violated Pensinger's constitutional rights by failing to instruct the jury sua sponte in accordance with People v. Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (1980). Green held that a kidnap-murder special circumstance requires proof that the kidnapping was committed for an independent felonious purpose (i.e., not merely incidental to the murder). We also reject Pensinger's ineffective assistance of counsel claim based on his trial counsel's failure to request a Green instruction. We have jurisdiction under 28 U.S.C. § § 1291 and 2253, and we affirm the grant of partial habeas relief.

I

A

On August 4, 1981, 19-year-old Brett Pensinger met Vickie and Michael Melander, Sr., at the Silver Saddle Bar in Parker, Arizona, near the Colorado River separating Arizona from California. Pensinger drank and played pool with the Melanders, who had been drinking there since noon. At about 7 p.m., Pensinger drove Vickie to a friend's home where she picked up her two children, five-year-old Michael, Jr., and five-month-old Michele. The four drove off in Pensinger's pickup truck around 7:40 p.m. toward the Turtle Barn Bar in Parker. Vickie and Pensinger went in for another drink, leaving the children unattended in the truck. While they were inside, Michael, Jr., found Pensinger's rifle inside his truck and pointed it at a passerby in the Turtle Barn parking lot, who confiscated it. When Vickie came out to check on the children, Michael, Jr., told her that a man had stolen Pensinger's gun.

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Vickie testified that when she told Pensinger about the missing rifle he became so angry that she ran off down the street. Nonetheless, the four subsequently drove to the Silver Saddle, where Vickie again left the children unattended in the truck. She reported to her husband that she and Pensinger were going to the Yuma County Sheriff's substation to report the theft of the rifle. Vickie and Pensinger, still with the children in the truck, arrived at the sheriff's substation about 8:20 p.m. Vickie went into the station, expecting Pensinger to follow. While Vickie reported the theft, she looked out and noticed that the truck was gone, but assumed that Pensinger was either looking for his gun or was back at the Silver Saddle. Around 9 p.m., a Parker City police officer drove Vickie back to the Silver Saddle. Ten minutes after arriving Vickie realized that her children were still unaccounted for and called the police.

A customer and an employee of the P.D.Q. Market in Parker testified that a tall young man wearing a cowboy hat came into the store sometime between 8:45 and 9 p.m. on August 4th. Both witnesses said he was looking for someone who had stolen a rifle out of his truck while his wife and five-year-old child were in it. He was reported to be beside himself with rage, and said that if the person who stole the gun came in and tried to use it in a robbery of the store, the store clerk had permission to use the gun to " blow their heads off." The store employee saw the man get into a light-colored pickup and drive off. The witness did not see anyone else in the truck.

Michael, Jr., confirmed his mother's testimony at trial. He further testified that he did not recall stopping at the P.D.Q. Market, but that after leaving the sheriff's substation and driving on a road outside of town Pensinger told him a cop was following him and that Michael, Jr., should get out and wait until Pensinger came back. Pensinger never returned. Later that night at about 9:30 p.m., a couple picked up Michael, Jr., as he hitchhiked on the roadside near the Parker Dam on the California side of the river. They called the Yuma County Sheriff, and waited to meet the deputy in a restaurant.

Michele's body was discovered six days later on August 10, 1981, in the Black Meadows Landing Dump in San Bernardino County, California, some nine miles from where Michael, Jr., was picked up. The baby girl victim had many disfiguring injuries, including a crushing blow to the skull that occurred before death. Michele's body was partially decomposed. She had a long diagonal incision from below the rib cage to above her pubic region, and an egg-shaped cut between the legs encompassing the location of the vagina, anus, and surrounding supportive tissue. The uterus was also missing, likely removed with another long incision below the rib cage. The pathologist who conducted the autopsy was unable to determine whether the incisions were made before or after death, or whether Michele had been sexually assaulted because of the missing vagina. Forensic examination revealed no evidence of semen on the remaining parts of the body.

B

Pensinger was arrested in Midland, Texas, in mid-August 1981 and charged with kidnapping Michele and Michael, Jr., and murdering Michele. Although investigators found a box of blades for a utility knife in the truck, all tests for blood, hair, and fibers were negative. It could not be determined whether a stain on the left front fender of the pickup was human or animal blood. When the police arrested Pensinger, he had bloodstains on his pants,

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shirt, belt, and boots, but the stains were not compared to the victim's blood in time for the trial.

During Pensinger's pre-trial confinement, more evidence of Michele's murder came to light. When Pensinger was extradited from Texas to Oregon to face unrelated charges there, he was housed in the Washington County Jail with Tony Krossman. Krossman testified that Pensinger told him that he was trying to make bail because he was afraid that warrants would arrive from Arizona and California charging him with kidnapping and murder. Pensinger told Krossman that he had killed someone. The only details Krossman could remember were that Pensinger said the crime happened in Parker or Flagstaff, Arizona, and that he was afraid a blonde woman had seen him in the course of the crime.

After Pensinger was transferred to the San Bernardino County Jail in September 1981, he was housed in an isolation unit next to inmate Gary Howard. Howard provided a much more detailed statement attributed to Pensinger. Howard testified that Pensinger told him he had picked up a baby in Arizona and killed her. He drove out of town, and when the little girl started crying, he slapped her hard enough to break her ribs, but she did not stop crying. In one conversation Pensinger said that when he stopped to relieve himself, Michael, Jr., ran off. In another conversation Pensinger said that Michael, Jr., was still in the car when he stopped and tried to force the baby to orally copulate him. Howard also stated Pensinger told him that he attempted to have sex with Michele. When he could not do this, he cut her belly and private parts out. He then drove to a dump, put her in a plastic bag, and threw her out. He said he cut the baby with a hunting knife and left her body near Parker Dam. In another conversation Pensinger said that he had removed the sex organs to hide the sexual assault and to make it difficult to identify the baby's sex.

David Hicks, another jailhouse informant, testified that in October 1981, Pensinger asked Hicks if he would kill Howard for $500 because Howard was testifying against Pensinger. Hicks further recounted that Pensinger told him he had been drinking with the Melanders on the day of the crime. After Vickie went into the sheriff's station to report a stolen rifle, Pensinger said he drove off because he was frightened about being in the truck, which Pensinger had stolen from an uncle, and he feared he had outstanding warrants for his arrest from Oregon. He stopped in the desert to urinate and the boy ran off. He drove to a junkyard and " did in" the baby girl. He tried to have sex with her but she was too small so he cut her. He put her in a plastic bag and threw her body in the junkyard. Pensinger told Hicks that he went to the dam and buried the knife. He told Hicks he had not thrown the knife into the water, as he had told Howard. Hicks told officers about the location where Pensinger said he had put the knife. Officers later recovered a utility knife handle from that location in plain sight on a pile of rocks. It was too weathered to yield any forensic clues.

At trial, all three jailhouse informants denied receiving any benefit for their testimony, but Howard and Hicks were substantially discredited during cross-examination. The investigating officers in the case confirmed that they had ...


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