Rainwater Law Group

Effective Criminal Defense

Visciotti v. Martel, No. 11-99008 [October 17, 2016]

Visciotti v. Martel

On Visciotti’s appeal to the California Supreme Court, it assumed that counsel afforded him “inadequate representation in some respects” during the penalty phase, but determined that he was not prejudiced and denied his petition. The district court granted his petition as to the penalty phase and the 9th Circuit affirmed. The Supreme Court in Woodford v. Visciotti 537 U.S. 19 (2002) summarily reversed the 9th Cir. On remand, the district court denied his remaining claims and he appealed that denial. He raised claims that 1) his counsel’s ineffective assistance during the guilt and penalty phases of his trial requires habeas relief as to the death sentence; 2) the trial judge’s closure of the death qualification voir dire proceedings violated his Sixth Amendment right to a public trial. The trial court held death qualification in chambers with only the court, counsel, a court reporter and, some of the time, Visciotti. His attorney did not object to this procedure, nor did the court make any findings of necessity. At trial, the prosecution agreed not to introduce a prior assault conviction, but Visciotti’s attorney had him testify about his prior criminal history. After that, the prosecution presented rebuttal testimony as to Visciotti’s description of the prior assault. At the penalty phase, the prosecution’s case consisted solely of the testimony of the victim of the prior assault. His attorney case was based on jury sympathy for Visciotti’s family who testified his was never violent to his family and was only violent when on drugs. Thereafter, the prosecution was allowed to call a second victim of his assault to rebut his non-violence. The California Supreme Court described Visciotti’s counsel penalty phase argument as “a rambling discourse, not tied to particular evidence.” [His lawyer was subsequently suspended from the practice of law for a laundry list of failures to his clients during the time he was representing Visciotti. Nevertheless, the California Supreme Court on habeas affirmed the conviction as Visciotti was not prejudiced by his attorney’s failures over a dissent who maintained that Visciotti’s counsel’s “abysmal across-the-board performance rendered the penalty phase of the trial a complete and utter farce.” On remand from the Supreme Court Visciotti argued that the California Supreme Court decision rested on an unreasonable determination of the facts and the 9th remanded to the district court to rule on the argument. Under the doctrine of the law of the case, the Court held it was bound by the prior Supreme Court decision and denied his petition on ineffective assistance grounds. While complaining about the practice of the Supreme Court of deciding the prior case without merits briefing or addressing all the issues, it was bound to follow that opinion. That decision also precluded the Court from considering his cumulative ineffective assistance of counsel issue at both the guilt and penalty phases. On the voir dire issue the Court held that the question of whether it could review the merits of Visciotti’s public trial claim turns entirely on whether he established trial counsel was ineffective and, therefore, excuse the procedure default. Under the highly deferential review of counsel performance, the Court could not find that any competent attorney would have objected to the sequestration of jurors during voir dire, give the law in 1983. Therefore, counsel’s failure to object was not deficient performance, and there is no cause to excuse his default of that claim. Both judges Berzon and Pregerson wrote a concurrence complaining about how the Supreme Courts summary reversal procedure prevents a full hearing of the issues because the parties do not fully develop their merits argument at the certiorari stage.

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