Richard Montiel v. Kevin Chappell

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD GALVAN MONTIEL, No. 15-99000 Petitioner-Appellant, D.C. No. v. 1:96-cv-05412- LJO-SAB KEVIN CHAPPELL, Warden, San Quentin State Prison, Respondent-Appellee. OPINION Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Argued and Submitted April 16, 2021 San Francisco, California Filed August 5, 2022 Before: William A. Fletcher, Andrew D. Hurwitz, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Friedland 2 MONTIEL V. CHAPPELL SUMMARY * Habeas Corpus/Death Penalty The panel affirmed the district court’s judgment denying Richard Galvan Montiel’s habeas corpus petition in which he challenged his California conviction and capital sentence for a 1979 robbery and murder. The California Supreme Court affirmed Montiel’s conviction and sentence on direct appeal and later summarily rejected “on the merits” Montiel’s state habeas petition. Montiel argued primarily that he was denied his Sixth Amendment right to effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), at his 1986 penalty-phase trial. The district court certified two issues for appeal: first, whether his penalty-phase attorney, Robert Birchfield, rendered ineffective assistance of counsel by failing to present independent expert testimony from a psychopharmacologist that Montiel’s intoxication with phencyclidine (“PCP”) prevented him from being fully culpable for the crimes; and, second, whether Birchfield rendered ineffective assistance by failing to prepare defense witness Dr. Louis Nuernberger to testify regarding Montiel’s mental health. In addition to pressing those certified issues, Montiel argued that Birchfield was ineffective for failing to investigate and challenge the factual foundation for the opinion of prosecution expert Dr. Robert Siegel, and for failing to investigate and present evidence of Montiel’s psychosocial and family history to explain why he abused PCP and other drugs. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MONTIEL V. CHAPPELL 3 Applying Browning v. Baker, 875 F.3d 444 (9th Cir. 2017), the panel expanded the certificate of appealability to include the latter two claims, and considered whether Birchfield’s performance, considered as a whole, amounted to ineffective assistance of counsel at the 1986 penalty trial. Montiel argued that this court should review his Strickland claims de novo, because the California Supreme Court’s four-sentence denial of his claims “on the merits,” without issuing an order to show cause, signifies that the court concluded only that his petition did not state a prima facie case for relief such that there is no “adjudication on the merits” to which this court owes deference under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d). The panel disagreed, citing Cullen v. Pinholster, 563 U.S. 170 (2011), in which the Supreme Court afforded AEDPA deference to the California Supreme Court’s summary denial of a habeas petition raising a Strickland claim—even though the state court had not issued an order to show cause. The panel therefore applied the deferential AEDPA standard, asking whether the denial …

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