In an opinion and a separate unpublished memorandum, the Ninth Circuit last week affirmed a district court’s denial of the habeas corpus petition in Hart v. Broomfield. The petitioner is under a death sentence imposed in 1988 for, two years earlier, sexually assaulting and murdering one high school girl and raping another in Riverside County.

On automatic appeal, the Supreme Court affirmed the death sentence (People v. Hart (1999) 20 Cal.4th 546) and then denied several state habeas petitions (without opinion, but with some cursory reasons stated), the last denial coming in 2011 (here, here, and here).

The Ninth Circuit’s opinion rejected a claim that the prosecution had unconstitutionally suppressed evidence relevant to the credentials of the pathologist who performed the autopsy on the murder victim. Using a highly deferential standard of review, the federal appeals panel found that, in denying the petitioner state habeas relief, the Supreme Court “could have reasonably concluded that th[e] evidence was not material.” It also found unavailing the argument that the petitioner’s “trial counsel was ineffective for failing to investigate and criticize [the pathologist’s] lack of certification in forensic pathology or rape trauma.”

In the memorandum, the Ninth Circuit said it would not disturb the Supreme Court’s denial as untimely a claim that the prosecution had withheld evidence relating to the penalty phase testimony of the petitioner’s former cellmate. The petitioner asserted the prosecution didn’t disclose that the cellmate had received a more favorable plea deal than had been revealed or that the witness had been put in the petitioner’s cell to extract a confession.

The Ninth Circuit usually, but not always, refuses to overturn death sentences that the Supreme Court has upheld.


“From the bench, an ‘impotent silence’ ”