William George BONIN
AKA "The Freeway Killer"
Classification: Serial killer
Characteristics: Homosexual rapist
Number of victims: 14 - 44
Date of murders: 1972 - 1980
Date of arrest: June 13, 1980
Date of birth: January 8, 1947
Victims profile: Teenaged boys
Method of murder: Strangulation
Location: California, USA
Status: Executed by lethal injection in California on February 23, 1996
William BONIN
Between December 1972 and June 1980, authorities in seven Southern California counties recorded the violent deaths of at least 44 young men and boys, attributing their murders to an unknown "Freeway Killer."
Of eleven victims slaughtered prior to 1976, most were known or suspected homosexuals, their deaths lending credence to the notion that the murderer himself was gay. While strangulation was the favored mode of death, some victims had been stabbed with knives or ice picks, and their bodies bore the earmarks of sadistic torture.
Homicide investigators noted different hands at work in several of the murders, but they finally agreed that 21 were almost certainly connected. (Sixteen others would be solved in 1983, with the arrest of "Scorecard Killer" Randy Kraft.)
The first "definite" victim was 14-year-old Thomas Lundgren, abducted from Reseda on May 28, 1979, and discarded the same day, near Malibu. Mark Shelton, 17, was next, reported missing from Westminster on August 4, his body recovered a week later at Cajon Pass.
The day after Shelton's disappearance, 17-year-old Marcus Grabs was kidnapped in Newport Beach, his violated corpse discovered at Agoura on August 6. Donald Hyden, 15, was also found in Agoura, on August 27 -- the same day he disappeared from Hollywood.
On September 7, 17-year-old David Murillo vanished from La Mirada, his body found in Ventura five days later. The remains of Robert Wirostek were found off Interstate 10, between Banning and Palm Springs, on September 27, but eleven months would pass before he was identified.
Another "John Doe" was discovered in Kern County, on November 30, with 18-year-old Frank Fox murdered at Long Beach two days later.
The killer's last victim for 1979 was another unidentified male, aged 15 to 20, his violated body found on December 13.
The new year began badly in Southern California, with 16-year-old Michael McDonald abducted from Ontario on January 1, 1980, found dead two days later in San Bernadino County. Charles Miranda, 14, disappeared from Los Angeles on February 3, his body discarded in Hollywood later that day.
On February 5, 12-year-old James McCabe was kidnapped in Huntington Beach, his body recovered three days later in Garden Grove. Ronald Gatlin, 18, disappeared from Van Nuys on March 14, found dead the next day in Duarte. Fifteen-year-old Russell Pugh was reported missing from Huntington Beach March 21, his body found next day at the Lower San Juan Campground, along with the corpse of 14-year-old victim Glen Barker. Three days later, police found 15-year-old Harry Turner slain in Los Angeles proper.
The killer claimed two victims on April 10, 1980, abducting 16-year-old Steven Wood from Bellflower, rebounding to snatch 18-year-old Lawrence Sharp from Long Beach hours later. Wood's body was found April 11, at Long Beach, but Sharp remained missing until May 18, when his remains were discovered in Westminster. Meanwhile, on April 29, 19-year-old Daren Kendrick was reported missing in Stanton, his body recovered from Carson on May 10, with traces of chloral hydrate ("knockout drops") in his system. On May 19, 14-year-old Sean King vanished without a trace in South Gate; he remains among the missing. Eighteen-year-old Stephen Wells, the last to die, was kidnapped in Los Angeles June 2, his body discovered the next day at Huntington Beach.
Police got their break on June 10, when 18-year-old William Ray Pugh confessed "inside" knowledge of the murder series. Pugh identified the killer as William George Bonin, a 32-year-old Vietnam veteran and truck driver residing in Downey. A glance at the record revealed Bonin's 1969 conviction, in Torrance, on counts of kidnapping, sodomy, child molestation and forcible oral copulation.
The charges stemmed from four separate attacks, between November 1968 and January 1969, with Bonin diagnosed as a mentally disordered sex offender, committed to Atascadero State Hospital. He was released in May 1974, on the recommendation of psychiatrists who found him "no longer dangerous." Two years later, he was back in prison, convicted of kidnapping and raping a 14-year-old boy. Bonin had been paroled in October 1978, seven months before the death of Thomas Lundgren.
Officers established round-the-clock surveillance on Bonin, striking paydirt after 24 hours. On the night of June 11, 1980, their suspect was arrested while sodomizing a young man in his van, booked on suspicion of murder and various sex charges. Held in lieu of $250,000 bond, Bonin was still in jail when police picked up 22-year-old Vernon Butts on July 25, charging him as an accomplice in six of the "freeway" murders.
Between July 26 and 29, Bonin was formally charged with 14 counts of murder, eleven counts of robbery, plus one count each of sodomy and mayhem. Butts, facing six counts of murder and three counts of robbery, quickly began "singing" to police, naming more alleged accomplices in the murder ring. James Michael Munro, 19, was arrested in Michigan on July 31, returned to California for trial on charges of killing Stephen Wells.
Three weeks later, on August 22, 19-year-old Gregory M. Miley was arrested in Texas, waiving extradition on charges of murdering Charles Miranda and James McCabe, plus two counts of robbery and one count of sodomy. Orange County raised the ante on October 29, 1980, charging Vernon Butts with the murders of Mark Shelton, Robert Wirostek, and Darin Kendrick, plus 17 other felony counts including conspiracy, kidnapping, robbery, sodomy, oral copulation and sex perversion. Greg Miley was also charged with another Orange County murder, plus seven related felony counts. By December 8, suspect Eric Marten Wijnaendts -- a 20-year-old Dutch immigrant -- had been added to the roster, charged with complicity in the murder of Harry Turner.
Under California law, a murder committed under "special circumstances" -- accompanied by robbery, torture, or rape -- may be punished by death. In December, Bonin's playmates began cracking, pleading guilty on various felony charges and drawing life sentences in return for their promise of testimony against Bonin. They spelled out details of the torture suffered by assorted "freeway" victims, and the glee with which Bonin inflicted pain. As one remarked, "Bill said he loved those sounds of screams."
On January 11, after telling police of Bonin's "hypnotic" control, Vernon Butts hanged himself in his cell, finally successful in the fifth suicide attempt since his arrest.
With the new testimony in hand, Orange County indicted Bonin on eight more counts of murder, with 25 related counts of robbery and sexual assault. William Bonin's trial on twelve counts of murder opened November 4, 1981, in Los Angeles.
Greg Miley and James Munro testified for the prosecution, describing how Bonin -- following his arrest -- had urged them to "start going around grabbing anyone off the street and killing them," in a bid to convince authorities that the "Freeway Killer" was still at large.
A television reporter divulged contents of a jailhouse interview, in which Bonin admitted participation in 21 murders. "I couldn't stop killing," the trucker had said. "It got easier with each one we did."
On January 5, 1982, after eight days of deliberation, jurors convicted Bonin on ten counts of murder and ten of robbery. (He was acquitted in the deaths of Thomas Lundgren and Sean King.) Two weeks later, he was formally sentenced to death.
Bonin: The Untold Story
By James Munro
The year, 1980, one night it was a quiet evening when neighbors remember the screams from Bonins home and how he tried to coax neighborhood kids into his home. Bonin had been showing x-rated movies and giving beer to the boys on Angel Street, just to get them drunk so he could lure them into his home so he could kill them.
Bonin lived with his mother Alice Bonin and his 2 brothers in the 1950's track homes where Bonin preyed upon everyone and anything that moved at night. At times Bonin cared about the sick but it was a front to make people think he was no killer. One night Bonin brought a young man home and to have sex with him then kill him. He would subdue his victims and then kill them. Bonin strangle a boy named Miranda with the boys own t-shirt and used a tire iron to twist the death hold on him, as he was killing him he told him with a smile 'You're going to die.' Then he was dead
Bonin was born on January 8th 1947, to a house hold ran by a violent alcoholic father who gambled so much that he once lost the family home. His mother kicked Bonin out of his home when he was 8 years old and he was placed in a detention center. At that center an older boy approached bonin for homosexual contact and Bonin was tied up then he had sex with Bonin, according to Bonin he learned to tie his victims up after that. Bonins father sexually raped Bonin when he was very young and contributed to Bonin snapping and started killing people. Bonin confessed to one of his victims James Munro who Bonin tied up and tryed to kill, but Munro got away and because Munro did not call the police he was charged with aiding and abetting and was given a 15 years to life sentence in which Munro is still appealing his conviction. Munro states he will never give up on appealing but seeks help from a attorney who would be willing to help him with his appeal.
Bonin was in Vietnam and that Bonin began to show the preference for violence and sex. In the 205th Assualt Support Helicopter Unit, Bonin logged more then 700 hours manning a machine guy. He won a metal and a honorable discharge. But it wasn't discovered that Bonin assaulted a man at gunpoint under his command. When Bonin returned from Vietnam in 1969 he settled with his mother in Downey at the residence of 10282 Angel Street. Soon after his return Bonin was convicted of sexually assualting 5 boys. In each case his method was the same, cruise for boys pick them up, handcuff them, then rape them. But in the late 1970's Bonin's Downey neighbors began to suspect something was terribly wrong. A neighbor who lives on the next street said his young son came home one day and told him Bonin had invited him inside. The boy went home instead. Another neighbor who lives just behind the bonin home remembers a frightful sound coming from Bonin's home one night. She wrote it off as neighbors kids at play but little did she know Bonin was at work killing one right after another. Then in late 1979 Bonin got a job at dependable Drive-away Trucking company in Montebello. At night he cruised the streets for boys and he began his long long string for killing and he became The Freeway Killer.
On August 5th Marcus Grabs, 17, was raped and stabbed 77 times. On August 27th, Donald Hyden, 15, was strangled and raped. On September 9th, David Murillo, 17, was strangled and raped, and his head was bashed in with a tire iron. Bonins youngest Victim was 12 year old Jimmy McCabe who was on his way to Disneyland. Bonins oldest victim was 19 year old Steven J. Wells of Downey. Then came Munro, 19, of St.Clair Michigan. Munro came to California and Bonin tied Munro up and raped him and told him if he ran or called the police he would kill im. Munro got away and ran back to Michigan untill he was picked up and charged in the death of 19 year old Steven Wells.
In a relaxed voice Bonin told detectives that he had killed more than 21 murders and that he was The Freeway Killer and that if it wasn't for Munro running away Bonin would be still on the streets killing people. When Munro got away Bonin was mad and got so mad he took his anger out on another victim, but he got caught because he tried to kill by himself. Bonin stated to reporters if Munro would have stayed with me, they would have never got me, and yes, I would have killed Munro, but in my time. Bonin was finally executed in 1996 in San Quentin, and Munro sits in prison hoping someone out in the free world will understand him and share their concern.
The Freeway Killer
By J.J. Maloney
He didn't have a name so we called him the Freeway Killer.
He was a murky presence, cruising up and down the freeways of Orange County and neighboring counties, stalking the dimmed tinsel byways of Hollywood, picking up those sad youngsters who came there in search of a dream and found a nightmare instead.
The police would later find the nude bodies sprawled behind filling stations, or in dumpsters -- cast off the way a child discards a doll that has served its purpose.
In January, 1980, I had never heard of The Orange County Register. I had heard of smaller papers and larger papers, but The Register remained anonymous beyond the boundaries of Orange County.
A lot of people still prefer to call it The Santa Ana Register, because that identifies it with something tangible. For some reason a county is less tangible than a city, harder to visualize.
Anyway, The Register was still a libertarian newspaper when I was hired, and proud of it. Jim Dean was editor, Pat Riley was managing editor and Marv Olsen was metro editor. I worked directly for Marv Olsen.
The Freeway Killer was my first major assignment. The Register had been following the activities of the killer, but was handling it as a routine police story. In December 1979, Tim Alger, a young police reporter wrote a piece pointing out that bodies were showing up, always strangled. The police didn't give him much to go on. Some said maybe the killings were connected, others said maybe not. The question went unanswered. The story ran and died before the ink had dried. Alger was on the right track, but the other media did not join in, so the story died.
One day I came across an envelope of clippings labeled "Dead Gay Boys." These were the boys being strangled. The sparse articles made me wonder where the label came from. A youth, found dead and strangled, with no name, no history, no clues to the crime -- how do you write him off as a "Dead Gay Boy"?
And why did no one seem to care? No outcry. No task force to catch the killer. At the paper, no one was assigned full time to pursue the story. There was speculation that the body count was now up to 13. That story ran deep inside the paper.
I talked to Olsen, and he agreed that it could be an injustice to the victims to even unintentionally imply they were homosexuals, since that might tend to trivialize the crimes - a lot of people would turn up their noses and say "so what?"
One of the victims was a 12-year old boy who'd disappeared on his way to Disneyland. A little boy who'd wanted to see Donald Duck and Mickey Mouse, and instead ended up in an envelope labeled "dead gay boys."
That little boy, James McCabe, was found murdered at a construction site in Walnut on February 6, 1980. His body was tossed into a Dempsey dumpster. He was strangled. His skull was fractured. His penis was bruised.
Marv Olsen is a father. He sat in the coffee shop of The Register, his craggy face lost in thought. I told him monsters might be the norm in Southern California, but in other cities a newspaper would assign half the staff to root out the truth. It would be relentless. Other newspapers would not allow the police to double talk. It appeared certain that a psychopathic killer was on the loose, and that kind of killer, once he starts, repeats and repeats and repeats.
One killer, one spree. If the police wouldn't say it publicly, someone had to.
Marv agreed, and I was assigned full time to the story. Alger would cover developments at the police departments and help develop features. It wasn’t half the staff, but it would turn out to be enough.
It quickly developed that there were many more murders than the newspaper suspected, and that the police were trying to keep a lid on the case to avoid another public fiasco such as had been experienced with the Hillside Strangler case, which had mortified the Los Angeles Police Department (also involved in this case).
Once the existence of a serial killer becomes known, the public expects the police to do something about the killer. The Yorkshire Ripper in England had ended one chief constable's career. The Chicago Police Department had bungled the John Wayne Gacy case, and suffered public embarrassment. The Los Angeles Police Department had pitifully bungled the Hillside Strangler case, after spending millions in a fruitless effort to catch the killer, who was finally caught by the tiny police force in Bellingham, Washington.
The police naturally do not want the massive public pressure a serial killer brings to bear on them. And there are differences of opinion among policemen on the wisdom of giving out information to the public. At the Register we felt the public had a right to know -- that, more importantly, hitchhikers had a right to know that the next time they stuck their thumb out they might end up stangled and abused.
The police told me that the strangulation of young men was a normal byproduct of the large homosexual community in the Orange County/Los Angeles area. I obtained data on causes of death in California and the nation and determined that the strangulation of males between 12 and 25 is relatively rare; the rate in Southern California between the years 1972 and 1980 was about 15 times the national average. Furthermore, the murder rate among homosexuals was, if anything, lower than the murder rate among heterosexuals.
We finally decided to take all of our information and give it to a forensic psychologist or psychiatrist and get a professional opinion on whether the murders were the work of one man.
Dr. Albert Rosenstein was that forensic psychologist. I explained to Rosenstein that there were differences of opinion as to whether one killer was responsible for all of the killings -- but he insisted that it was one killer. On March 24, 1980, we broke the story that a serial killer was at work in Southern California. We called him the "Freeway Killer."
As late as April 1980, when the strangled bodies of young men were popping up with increasing frequency, Capt. Walt Ownbey of the Los Angeles County Sheriff's Department said the Freeway Killer was "a total figment in the minds of journalists.
"I believe it was The Orange County Register that started all this," Ownbey added. "This has built up and created a lot of fear about a killer or group of killers, and there is no evidence substantiating any of that."
The Register ground out story after story, day after day. No matter what the police said, the newspaper stuck by its position that a serial killer was preying on young boys in Southern California. The television stations sided with the newspaper, and they began aggressively to cover the story.
Schools began to counsel their students not to hitchhike. A large reward was established for information leading to the capture of the killer. Concerned citizens flooded the newspaper and the local police departments with tips.
It would later be learned that the Freeway Killer drove to Orange County every day to buy The Register. Part of the evidence that would be developed against him came from the fact that he took the story from the March 24, 1980, edition, in which many of the Freeway Killer's victims were identified, and pointed to each of the boys he had killed and admitted to one of his accomplices that he had committed those murders.
Finally, the murders were occurring with such frequency that the police quit denying the existence of the Freeway Killer, and began to coordinate the activities of the various police departments involved.
The break came when a young man in custody for car theft told the police he would give them the Freeway Killer if they would give him a break on the car theft. Although William Bonin had never admitted to this young man that he was the Freeway Killer, the young man said he suspected it because Bonin's glove compartment was stuffed with newspaper articles about the Freeway Killer case.
With the killer's name in hand, police began to follow 33-year-old William Bonin. When they caught him in an act of sodomy in his van, they arrested him and were able to compare fibers from the van with fibers found on the victims. Then Vernon Butts, Bonin's 22-year-old accomplice in six of the murders, confessed. Butts later hanged himself in jail.
Bonin was not a first offender. He had previously served time at Atascadero State Hospital for sex crimes committed against five young boys in 1969. In 1974 he was released on probation, and in 1975 his probation was revoked for kidnapping and raping two teenaged boys. He was released again in 1978. By June 1980, he had raped and murdered 21 teenaged boys and young men.
Then I obtained a top secret police chart listing all of the Freeway Killer victims, along with details of the crimes, a chart I still have.
This top-secret chart, labeled "The Southern California Strangler(s)" revealed that the police had known since early 1978 that a prolific serial killer was at work in Southern California -- and, following the arrest of Bonin, concealed the fact there was a second serial killer still at large. The second killer, Randy S. Kraft, a computer analyst, was arrested in May 1983 (he is now on death row).
William Bonin, was executed by lethal injection at San Quentin Prison on February 23, 1996.
Even dead, Bonin continued to make news. Journalists who’d attended the execution first complained that they hadn’t seen enough, that the prison kept the curtain closed until moments before the injection began.
When the curtain was opened, Bonin was lying on a gurney with his eyes closed. He appeared to be asleep, although the prison denied that he’d received any sedation. Shortly after the injection began, Bonin’s chest rose, then his cheeks began to bulge and his face turned purple (according to one reporter). Then he was pronounced dead and the curtain was pulled shut.
A law suit was filed, arguing that reporters should be allowed to witness the entire death procedure, which would include witnessing the condemned entering the death chamber, being strapped in, watching the injection apparatus being applied -- the whole works.
It was also discovered that Bonin was receiving Social Security benefits while he was on death row. This revelation led to a nationwide effort to get convicts off the Social Security rolls.
California Department of Corrections
SUMMARY:
Defendant William George Bonin, the "Freeway Killer," kidnapped, robbed, raped and murdered a total of 14 teenaged boys between 1979 and 1980. His co-defendants were also young men between the ages of 17 and 21. The defendant was sentenced to death in 1982 for 10 murders throughout Los Angeles County. About one year later he was convicted in Orange County of the other four murders, for which he received a second death sentence.
Bonin also was suspected of murdering other males, whose bodies were found around the same period of time in Kern, Riverside, San Diego and San Bernardino Counties. The defendant was not prosecuted for those crimes. The following is a chronological, case-by-case summary of the crimes in each of the two counties from which Bonin received a death sentence.
LA COUNTY Victims:
Marcus Grabs (17), Donald Hyden (15), David Murillo (17), Charles Miranda (15), James McCabe (12), Ronald Gatlin (19), Harry Todd Turner (14), Steven Wood (16), Darin Lee Kendrick (19), Steven Jay Wells (18), Harold T. (15 - Bonin's last victim; was not killed)
Co-defendants: Vernon Robert Butts (committed suicide while at LA Co. Jail); Gregory Matthew Miley (CDC# C42801; First degree murder - 25 yrs to life); William Ray Pugh (CDC# C53164; Voluntary manslaughter - 6 yrs);James Michael Munro (CDC# C44535; Second degree murder - 15 yrs to life)
With the help of four co-defendants, defendant Bonin kidnapped, robbed, raped and murdered 10 teenaged boys in Los Angeles County between1979 and 1980.
On August 5, 1979, the defendant and co-defendant Butts accosted Marcus Grabs, 17, in Newport Beach sometime between 6 and 10 p.m. Marcus,a German student on a backpacking tour of the United States, was sodomized, beaten and stabbed 77 times. His nude body was found the next day beside a road in Malibu, with an orange nylon cord loosely wrapped behind his head and a piece of ignition wire around one of his ankles.
On August 27, 1979, at 1 a.m., the defendant and co-defendant Butts picked up Donald Hyden, 15, near the Gay Community Services Center in LosAngeles. His nude body was found at 11 a.m. near Liberty Canyon and the offramp of the Ventura Freeway. Donald had been strangled by ligature and stabbed. He had been sodomized and it appeared that attempts had been made to cut off his testicles and slash his throat.
On September 9, 1979, in the early morning, David Murillo, 17, was bicycling to the movies in La Mirada when the defendant and co-defendant Butts abducted him. David's nude body was found three days later on a Ventura Highway offramp. His head had been bashed in with a tire iron, and he had been sodomized and strangled with a ligature.
On February 3, 1980, in the early morning, the defendant, driving a van with co-defendant Miley, picked up Charles Miranda, 15, in West Hollywood. They drove several blocks away, parked, and the defendant sodomized Charles. The co-defendant tried to sodomize him, but was unable to sustain an erection. After the co-defendant took six dollars from Charles, the two men tied his feet and hands together. The defendant wrapped Charles' shirt around his neck. Using a jack handle, the defendant twisted the shirt like a corkscrew until Charles was dead. The autopsy also revealed a blunt object had been inserted into Charles' anus. The defendants drove to an alley in downtown Los Angeles, dumped Charles' nude body, and drove on to Huntington Beach, seeking other victims.
A little while later, they began talking to James McCabe, 12, who said he was on his way to Disneyland. They invited James into the van. While Bonin had sex with him, the co-defendant, Miley, drove. Later, the two men held the victim down, beat him, strangled him with his shirt, and crushed his neck with a jack handle. After taking money out of James' wallet, the defendants left his body next to a dumpster in the City of Walnut, where it was found Feb. 6.
On March 14, 1980, Ronald Gatlin, 19, was picked up by the defendant in Van Nuys at about 8:30 p.m. Ronald's nude body was found the next day in Duarte, near the juncture of the 210 and 605 freeways. He had been sodomized and strangled with a ligature. There were wounds to the neck and right ear that apparently had been made by an ice pick and the body showed signs of beating.
Sometime on or after March 20, 1980, the defendant and co-defendant William Pugh picked up Harry Todd Turner, 14, in Hollywood. Harry's nude body was found the morning of March 25 in an alley behind a Los Angeles business. He had been beaten, sodomized, and strangled by ligature.
On April 10, 1980, Steven Wood, 16, was picked up by the defendant at about 12:15 p.m. in Los Angeles. Steven's nude body was found the next morning in an alley behind an industrial complex near the Pacific Coast Highway and Long Beach Freeway. He, too, had been beaten, sodomized and strangled by ligature.
On April 29, 1980, at 9:15 p.m., the defendant and co-defendant Butts accosted Darin Lee Kendrick, 19, in the parking lot of a supermarket in Stanton. Darin had been collecting shopping carts and was lured into the van on a pretext of being sold some drugs. His nude body was found the next morning in an industrial park in Carson near the Artesia Freeway. In addition to being sodomized and strangled by ligature, Darin apparently was forced to ingest chloral hydrate which left him with caustic chemical burns on his mouth, chin, chest and stomach. Darin also had an ice pick through his right ear that caused a fatal wound to the upper cervical spinal cord.
On June 2, 1980, at about 5:40 p.m., the defendant and co-defendant James Munro were driving a van in Downey when they picked up a hitchhiker, Steven Jay Wells, 18. Initially, Steven agreed to have sex with the defendant. Later, he allowed himself to be tied up, expecting to be paid for having sex with a friend of the defendant's. The defendant and co-defendant tied Steven up, took his money, beat him, then strangled him with his T-shirt. They placed Steven's body in a cardboard box and carried it out to the van. At about 8 p.m., they drove to the residence of co-defendant Butts who told them to take the body and "drop it off somewhere." Co-defendant Munro and the defendant then drove to Huntington Beach where they left Steven's nude body at the rear of a closed gas station, where it was found June 3.
The defendant was apprehended after co-defendant Pugh, 17, was arrested on auto theft charges on May 29, 1980. He told detectives that he had accepted a ride home from a party with the defendant, who had talked about killing young boys. The defendant was placed under surveillance beginning June 2, 1980.
On June 11, 1980, his van was followed to Hollywood. He was observed talking to five different young men standing on street corners before 15-year-old Harold T. entered his van. The defendant parked, with Harold still inside, in a vacant lot on Santa Monica Boulevard. Despite Harold's resistance, the defendant orally copulated him. Shortly thereafter, the defendant was apprehended in the act of raping and sodomizing Harold. The police found a length of white nylon cord and three knives in the van.
(Information for this summary was compiled from the probation officer's report and/or other court documents from the defendant's file.)
ORANGE COUNTY Victims:
Dennis Frank Fox (17), Glenn Barker (14), Russell Rugh (15), Lawrence Sharp (17)
Co-defendants:
Gregory Matthew Miley (CDC# C42801), James Michael Munro (CDC# C44535). Note: Both co-defendants were also co-defendants in some of the Los Angeles murder cases.
During the same time period as the Los Angeles murders, defendant Bonin and two co-defendants murdered four other young men in Orange County.
On December 2, 1979, the body of Dennis Frank Fox, 17, was found along Ortego Highway about five miles east of the San Diego Freeway. On March 22, 1980, the bodies of Russell Rugh, 15, and Glenn Barker, 14, were found a few miles farther east along the same road. On May 18, 1980, the body of Lawrence Sharp, 17, was found in a trash bin behind a service station in Westminster.
The four victims were all hitchhikers whom the defendant had picked up in his van, and then killed by strangulation. The defendant was assisted in most or all the crimes by two other men, co-defendants Miley and Munro. All of the victims' bodies showed signs of physical beating and the cause of death of each victim was strangulation by ligature. Marks on the body of at least one of the victims indicated that a bar or other similar object had been placed between the ligature and the neck and then twisted, to effect greater compression. Other marks also indicated that the hands and feet of all the victims had been bound, or handcuffed, and the victims had been sodomized.
Defendant Bonin was convicted of these four Orange County murders while already on Death Row for the 10 others he committed in Los Angeles County.
Ill Humor: Death's Little Bureaucrats
By Ian Shoales.
Salon.com
The State of California put "Freeway Killer" William Bonin to sleep on February 23, and the media haven't stopped complaining about it since. Were reporters appalled by the execution? Oh no. Reporters were upset because they weren't sure whether they had seen an execution or not. As Sam Stanton from the Sacramento Bee said, "I'm not sure what we witnessed."
What did they see? Witnesses seem to agree that curtains were opened, revealing William Bonin, eyes closed, lying on a gurney. His chest heaved once, maybe twice. A few minutes later officials came out, announced he was dead, and thanked everybody for coming. Maybe they handed out some little mints.
S.F. Chronicle reporter Kevin Fagan said it was "less involving than watching a vet put down a dog" and that Bonin looked like he "was being anesthetized for surgery." An editorial called the execution "clinically antiseptic" and "coldly efficient." In a television interview, I heard public radio reporter Jason Beaubien express disappointment in what he rather tellingly called a "show."
The consensus of witnesses: total rip-off. They paid for a carnival and didn't even see a freak. The Department of Corrections, in response to these bizarre criticisms, said they weren't trying to hide the process from the public, but to protect the identity of department employees who led the killer into the chamber.
In other words, the private sector wants more bang for its buck, death penaltywise. To accommodate them, the public sector wants to give us more bangs, but to muffle them so we can't identify them as bangs, thus maximizing their potential per tax dollar.
Face it: the death penalty is just an opportunity to create another faceless bureaucracy. One drone takes bids for the toxins to be used, another draws up the purchase orders, one distributes them to the designated carriers, three carry the syringes, ten strap the killer down... Who knows how many civil servants it takes to put a murderer on ice?
Marv agreed, and I was assigned full time to the story. Alger would cover developments at the police departments and help develop features. It wasn’t half the staff, but it would edure, which would include witnessing the condemned entering the death chamber, being strapped in, watching the injection apparatus being applied -- the whole works.
It was also discovered that Bonin was receiving Social Security benefits while he was on death row. This revelation led to a nationwide effort to get convicts off the Social Security rolls.
In the Eyes of a Killer: The California Freeway Killings
By James Michael Munro.
Manson Family Picnic
CHAPTER ONE - THE HISTORY OF WILLIAM BONIN
William George Bonin was born January 8th 1947 to a household ran by his mother Alice Bonin, and two brothers. Bonins' father, a veteran of the armed forces, was living in a veterans hospital while his mother and brothers continued to live on the quiet street of Angel Street in Downey, California. William Bonin lived with his mother until he was 8 years old. Then he ran away from home. He got picked up in the state of Connecticut, and was placed in a detention center. After the years had passed, Bonin was removed and was sent home to Downey, California to live with his kid brothers, and his mother. She loved Bill very much, but started to see a lot of changes in her son - which she had to live with for the rest of her life. Little did she know that her son would turn out to be the notorious "Freeway Killer" who took California by surprise until the 1980's had arrived.
As the years were moving on, when Bill was growing up, he was sent to Vietnam. He logged more than 700 hours manning a machine gun. Bonin was assigned to the 205th Assault Support Helicopter unit in Vietnam. Soon after Bonin returned from Vietnam he was arrested, and convicted of sexually assaulting five young men. In each of the cases he would drive the freeways looking for young men to get into his van of death, and torture them as they screamed for their lives - which made this killer even more madder, and ready to kill again. Bonin would strike like a serial killer - hoping the police could not get him. In his eyes, each one got easier each time he would kill.
By the late 1970's Bonins' neighbors began to suspect something was horribly wrong. James Hunter, a man who lives on the next street over, remembered Bonin going after his boy. A woman, who lives just behind the Bonin home, remembers one night when sounds came from Bonins' home. It was frightful to her, and it reminded her of watching a Friday the 13th movie. She could not sleep very well that night, but finally went to sleep like nothing had happened. Little did she know that Bonin was on the prowl, and killing as many as he could before he got caught. There were blood curdling screams coming from that home - which the neighbors would never forget.
Bonin, as he started his killing spree, had to find a job in the daytime to throw the police off his trail of killings - that would put a panic on the streets of California. Parents would escort their kids to church and school, and then pick them up after the day was over - so that the killer would not get their sons. A curfew announcement was placed on TV by the police stating that all kids under 18 must be inside their homes after 6:00pm every night until the killer was caught. Businesses were losing customers, stores were closing, and the Olympics that was scheduled for Los Angeles was canceled, and done in another state because of this killer.
CHAPTER TWO - THE WELLS MURDER
It was June 2nd 1980, and William Bonin was at work with his roommate James Munro. The day was ending and they were on their way home when Bonin saw a hitchhiker on the other side of the street trying to get home. Bonin pulled over, Munro opened the side door of the van, Steven Wells got in, and closed the door. Bonin asked him where was he going, and Steve replied, "Oh, I'm on my way home down the street." So Bonin, Munro, and Wells were on their way. While they were driving down the road Bonin asked Wells, "Hey, what do you think of gays?" Steven Wells replied, "Oh, they're okay because I'm a bi-sexual." Bonin replied, "Oh really," and pulled over.
Bonin then told Munro to drive the way home. He got in the back of the van with Wells, and started to oral copulate him while Munro was driving to Bonins' home - which was located at 10282 Angel Street, Downey, California. When they arrived at the Bonin home, all three got out of the van, and went inside. Just then Munro came out, got back in the van, and took off to go to the store. While he was going down the road, a cop stoped him, and asked him what was he doing in the middle of the road. Munro replied, "I droped some tapes, and I am on the way to the store." The cop asked me if I had a license, and I told him, "No, I only got a Michigan license." He told me to take the van home until I had an adult driver. I told him I was 18, and he told me in California I had to be 21.
Well I got back home to Bonins' and I went inside. Bonin came up to me, and asked me what happened. I told him, and he said that we would go to the store later. Bonin then asked me if I wanted to come in the bedroom, and join in on the fun with Wells. I told him no - that all I wanted to do was watch TV. I went into the living room and watched TV while Bonin was having sex with Wells.
Just then Bonin came into the living room, and told me to follow him. So I did. He went back to Wells, and asked him how would he like to make $200. Wells said, " Ya how?" Bonin told him that he knew a guy that liked to have sex with guys tied up, and Wells said, "Okay, it could be fun." Bonin went into the kitchen and got some rope. He came back into the bedroom and tied Wells up. Then he went back into the kitchen, and this time I followed him into the kitchen. I told Bonin, "Hey, you ain't going to hurt him are you?" He said, "Hey, it's too late. I already got him tied up. So I'm going to kill him." I followed him back into the bedroom, and he jumped on the bed and hit Wells in the chest, and told him he was going to do what he said, or he was going to kill him. Wells pleaded for his life.
Then Bonin told me to go get his clothing. I thought that he was going to give back his clothing and let him go. Little did I know that he was serious about killing him. Bonin took Wells t-shirt, put it around Steven Wells neck, and twisted it until he started to jump around. During all this time I was right there freaking out because I never saw anything like this before in my life. Bonin ordered me to hold his feet. I did not know why, because I did not know what the hell I was doing - until Bonin explained it to me after the murder. Then Wells stoped moving around, and Bonin turned him over, and his face was blue.
I asked Bonin why his face was blue, and he told me it was because he was dead. I said, "Dead, what do you mean dead?" He said, "Hey relax. You didn't do anything wrong. I'll take the blame if we get caught. Okay, relax." So I started to relax. He took me into the living room - after he took the body, put it in the van, and covered it up with a tarp. When that was done he told me he was going to wait until it was dark to dump the body, and that he wanted to talk to me. I went into the living room with him and we sat down.
Bonin told me that he was the "Freeway Killer," that he had other partners out there who helped him kill, and that he killed 45 people. I got scared, and started to cry again. He came up to me and told me to stop crying because he was not going to hurt me unless I ran, or called the police.
So we got in the van, and drove over to the home of Vernon Butts - his other crime partner in Downey. He was 6 feet tall, white, and must have weighed about 140 pounds. As we went up to the door we knocked, and Butts came out dressed in a Darth Vador uniform like the Star Wars movie. We went inside, and Bonin told Butts, "This is Jim Munro and he is my new partner." Butts said, "Hi" and showed me all the people he killed. He showed me a closet containing 21 ID cards of all the victims that he killed. Bonin then told Butts to come look at what we did. So we all went out to the van. Bonin uncovered the body, and Butts replied, "Oh how nice. You got another one." Then Bonin asked Butts, "Hey do you want to come with us, or do you want to stay here and watch the news?" Butts told Bonin that he would stay at the house. Bonin told Butts if he saw anything on the news to call him.
So we were on our way to Huntington Beach. When we arrived, we pulled into a closed Mobil gas station, dumped the body behind the gas station, and then took off. Then we went on our way home. As we were driving home - we stoped off at McDonalds, went to the drive thru window, and got some hamburgers.
When we got home we sat down . Bonin was eating a burger, looked up in the sky and said, "Thanks Steve," then looked down and said, "Thanks Steve," and then looked at me and said,"Where ever you are at," and started to laugh. Then he told me he was getting tired and wanted to go to bed. We went into his bedroom and he got into his bed, and I got into mine. Then he turned off the lights. I got up and turned the lights back on, and he asked me what was the matter. I told him I did not trust him, and I did not want him to kill me. He got up, came over to me, and told me, "I know a way you can trust me." I asked him, "How?" He said, "Let me tie you up. So you will know that I will not kill you." I let him tie me up the same way that he tied up Wells. Then he told me that he could kill me, and that there was nothing I could do. I started to cry, and I pleaded for my life like Wells did.
He started to laugh, and told me that he was not going to kill me. But if I ever ran from him he would kill me, and that if he could not get me - his partners would. I told him okay, and that I would not run. So he untied me. The next morning I went to work with him at the Dependable Drive Away trucking company, waited until he was on a run, and I took off and ran away to Michigan. I was so scared. I did not want Bonin, or his partners, to get me. I could not believe what I had gotten myself into. It was like a murder movie. Like Friday the 13th, and this time it was for real. I could not get it out of my mind. I wanted it to all end, but I did not know how. I finally got back to Michigan, and I stayed low for awhile until June 13th 1980 - when I heard that Bonin was arrested for murder.
CHAPTER THREE - THE ARREST OF WILLIAM BONIN
It was June 13th 1980 when Bonin was arrested. I remember hearing on the news that 32 year old William George Bonin, of Downey, has been arrested for the "Freeway Killings" in southern California.
I was shocked when he was arrested, and it made me panic because I did not want to also be arrested. I waited until June 17th 1980 to talk to the cops - to see if I was also wanted for this crime. I came in the morning, sat down, and talked to a cop named Kirk Millicar of the Los Angeles Robbery Homicide Division. He asked me if I went around cruising with Bonin picking up hitchhikers. I told him, "No! I don't know anything." He told me that I could go for now. That night I took off, and I headed for Michigan. When I arrived, 4 days later, I called the LAPD to ask them if they wanted to talk to me again. They told me yes. I told them I would be on the next flight back to California.
Little did they know I was just stalling to get away without being arrested. I stalled the cops for as long as I could - until I got arrested. I remember when Bonin got busted I was hitchhiking and a lady started to yell at me - telling me, "Hey! Are you fucking crazy. The killer is at large." So I told her, "Shut up bitch! He is caught." I flipped her off by sticking my middle finger out at her.
I continued on my way to Michigan. I stayed in Michigan until July 31st 1980 - when I also got busted for the murder of Steven Wells. That is when my nightmare began, and I would never wake up.
CHAPTER FOUR - THE ARREST OF JAMES MICHAEL MUNRO
It was July 31st 1980, and I was hitchhiking in my home town of Port Huron, Michigan. As I was going down the road I spoted my cousin Cindy Porter, and her husband Jeff passing me. They had spotted me hitchhiking. So they pulled over, and I got in their truck. I could not believe it was my cousin. I was freaked out as much as she was to see me with long blond hair that I had died to fool the cops - so that they would not arrest me. So we went on our way to her apartment.
When we arrived, Cindy called her mom - who was my aunt. She told Cindy that she wanted me to stay at her house, and that Cindy was to take me over to her house later. So I sat down and I was eating a sandwich. I asked Cindy if I could use her phone. She asked, "Is it a local call?" I told her I was going to call collect. I called my old girlfriend in California, Tammy Capps, who also went by the name of Rachel Lundren. She was a prostitute I had met in Hollywood.
So I called Tammy, and I asked her if the cops were looking for me. She told me no and hung up. She called the cops, told them that she had me on the phone, and that I was calling back. The cops rushed over to her house, and put a tracer on the phone - to find out where I was at. I told her, when I was calling her back, that I was in Michigan. Then she told me that she wanted to rape me, have sex with me, and that she loved me - just to keep me on the line so that the cops could trace the call to find out where I was at. I stayed on the line for about 15 minutes. I did not know that they were tracing the call until it was too late for me.
After I hung up the phone, I was still eating a sandwich when I heard a knock on the door. My cousin, Cindy, opened the door and the police came in. There were cops everywhere. It looked like the president of the United States was here. The cop that had a clipboard asked Cindy her name. Then he asked Jeff his name. Then he asked me my name. Then as he was leaving he looked at the report, and I matched the description that Bonin gave to the cops. So they got me, and took me outside. As I went outside there was reporters, TV cameras, and cops everywhere. They had taped off the entire area, and hundreds of people were watching - as I was being led off by the Michigan State Police and the Detectives of Michigan. When I got in the car my cousin asked me in shock, "What the hell did you do?" I looked at her and I told her, "I didn't do anything." She just shook her head in disbelief, and in shock. As my parents were sitting down for their evening meal - they had the news on - like they always did in that house - when the following report came over the news that shocked the state.
BEEP - This is a "News Special" from Channel 7 Action News.
Good evening. We are live in Port Huron - where a 18 year old from St. Clair has been arrested in connection with the California Freeway Killings. 18 year old James Michael Munro, from St. Clair, has been arrested in connection with the California Freeway Killings. 45 young men and boys were murdered, and their nude bodies were dumped along the freeways of southern California. Another man who is currently under arrest is William Bonin, the prime suspect. Robbery homicide detectives, from California, are on their way to Michigan, by jet, to get Munro. Munro was arrested at 5pm at his cousins home, and we are waiting for the California authorities to arrive. Thank you.
This was the broadcast that aired all over my home state of Michigan. It shocked all my friends and family members. I viewed this tape so that I would remember what was said on TV about me. I can only imagine the horror and shock in my familys eyes.
CHAPTER FIVE - THE LIST OF VICTIMS
1.- Thomas Lundgren, 14, 28 may 1979
2.- Mark Shelton, 17, 4 august 1979
3.- Marcus Grabs, 17, 6 august 1979
4.- Donald Hyden, 15, 27 august 1979
5.- David Burillo, 17, 7 september 1979
6.- Robert Wirostek, 18, 27 september 1979
7.- John Doe, ¿??, 30 november 1979
8.- Frank Fox, 18, 13 dicember 1979
9.- Michael McDonald, 16, 1 january 1980
10.- Charles Maranda, 14, 3 february 1980
11.- James Michael Mcabe, 12, 5 february 1980
12.- Ronald Gatlin, 18, 14 march 1980
13.- Russell Pugh, 15, 21 march 1980
14.- Glen Baker, 15, 21 march 1980
15.- Henry Todd Turner, 15, 5 april 1980
16.- Steven Wood, 16, 10 april 1980
17.- Larry Sharp, 18, 11 april 1980
18.- Daren Kendrick, 19, 10 may 1980
19.- Sean King, 14, 19 may 1980
20.- Steven Wells, 18, 2 june 1980
This is the list of Bonins' victims. He had killed each one out of the 45 killings. Vernon Robert Butts had killed the remaining 25 victims. Bonin had been the leader of these killings.
CHAPTER SIX - THE CONVICTION OF JAMES MUNRO
Los Angeles, California - Monday March 15, 1982 - 11:30am - Upon the above date, the defendant being present in court with counsel, James Goldstein. The people are being represented by Sterling E. Norris, Deputy District Attorney of Los Angeles County, the following proceedings were held.
THE COURT: The court will call the matter of James M. Munro case number A-361090. The record will indicate the defendant is present with counsel, Mr. James Goldstein. People are present by Sterling Norris. The court has read and considered the probation report. That will be received into evidence for reference in this matter. All right. Do you desire to add anything to the report Mr. Goldstein?
MR. GOLDSTEIN: I have had an opportunity to review the probation report your honor. However, before we get to that - I have noted that Mr. Munro has written a letter to the court requesting that he be allowed to, number one: withdraw his previous plea of guilty, enter a plea of not guilty, and to have me relieved as counsel of record and to proceed to jury trial on the original charges.
THE COURT: All right. All those motions will be denied. All of them are ridiculous. There is absolutely no bases for them. So they will simply be denied.
MR. GOLDSTEIN: In reference to the probation report - I think the probation officer has summarized, with quite a bit of accuracy, the facts to this court. Only, by way of emphasis, I would indicate to the court that I do feel that Mr. Munro, although not being guilt free, has also been a victim of Bonin, as well as others, in Bonins' crimes. By way of emphasis, I remind the court that Mr. Munro also, at one point in time, came very close to being a victim - in the sense that he too was tied up, and that his life was almost taken by Bonin. Mr. Munro has stated this to the probation officer, and he has also maintained with some consistancy, that the only reason he participated in the acts that he did was out of fear of Bonin. I would just like to bring that to the courts attention - by way of emphasis.
THE COURT: All right. The court understands that, but the court finds no excuse at all for the type of conduct that this defendant has participated in. I think he should, every few seconds, say a prayer that he is not going to the gas chamber with Bonin. For what he has done - I would have no problem sending him there. So I think he is very fortunate.
These were the statements by the Los Angeles County Superior Court. As you read them, to this date, I still am hoping to get the trial I never got in this matter. I am not guilty of murder. I was forced to plead guilty, and threatened with death by the Los Angeles County District Attorneys Office - that if I did not go into court and plead guilty I would be killed.
CHAPTER SEVEN - A STATEMENT TO ALL PARENTS OF THE VICTIMS OF THE FREEWAY KILLER
Hello. I know by now, that you have read my book about the case. I hope that everyone who reads this will sit back, think about it, and look in to their hearts to see if they can forgive me for my actions in this case. I hope Mr. and Mrs. Wells are able to get on with their lives - now that Bonin has been executed. Mr. and Mrs. Wells, I am asking you to please forgive me for my actions. I know that I should not have helped Bonin kill your son Steven Wells. But honestly, I did not kill him, Bonin did. Yes by law I am just as guilty. In fact I feel very very bad for what has happened to all these kids in this case. I hope to God that some day you will be able to look into your hearts to forgive me for my actions. If not, I will understand that also. But please, believe me, I did not kill your son. Thank You for this time.
CHAPTER EIGHT - CLOSING STATEMENTS
Since 1980, I have sat in prison wondering if some day I will get out, or would I spend the rest of my life in prison. I do understand, after years in prison, what I did was wrong. But do you all out there honestly say - he is guilty of murder, or was I in the wrong place at the wrong time. Ya I was, and I for some reason got caught up in this case. There is not a day that goes by that I don't think about what has happened, and how sorry I am for my actions.
If anyone out there cares, or could see your way to look into this case - please do. See if you can help me get free, because I am not guilty of murder. All I want is my life back.
My address is:
James Michael Munro #C-44535 P.O. Box 409000
Mule Creek State Prison
Ione, CA 95640
When you write - if your choose to - please send stamps so I can write you back. May God be with all of you out there. I hope that someone out there can forgive me, stand up, and demand my release.
William Bonin: The Freeway Killer
By Mark Gribben - Trutv.com
Execution Day
On February 23, 1996, the people of the state of California finally followed through on their decision that the world would be a better place without William Bonin. After fighting for his life for 17 years, the notorious “Freeway Killer” became the first person to be executed by lethal injection in California.
For the survivors of the 14 young men and boys whom Bonin was convicted of killing and of the nearly 30 others whom this classic sociopath is suspected of slaying, the Freeway Killer’s execution probably lacked an element of justice. Sure, Bonin, called “the poster boy for capital punishment” by Gov. Pete Wilson, paid for his crimes with his life, but his method of death was infinitely more pleasant than that of his victims. Anyone who has had surgery using a local anesthetic, or undergone a colonoscopy or an abortion can relate to how Bonin felt in the few moments before his execution.
If he had any knowledge of what was about to happen, he didn’t show it. With the strong dose of tranquilizer in his system, he certainly didn’t care. The gurney at San Quentin - Stoned on state-sanction Valium, Bonin was strapped to a hospital gurney in the refurbished California gas chamber and pumped full of three different chemicals.
The first, sodium pentathol, a.k.a. “truth serum,” rendered him unconscious in about a second. The next dose, pancuronium bromide, paralyzed his muscles and made it impossible for him to breathe, much like curare in a South American Indian blow-gun. The final dose – potassium chloride -- came a few seconds later and instantly stopped his heart.
Three minutes after the first injection, Bonin was declared dead. His body was removed by prison officials and when none of his relatives claimed it (they didn’t bother coming to the execution in San Quentin), cremated and spread in the Pacific Ocean. In the end, the remains of one of California’s most notorious murderers was treated with a great deal more respect than he had for his victims. Most of them were dumped, naked and ravaged along the labyrinthine Southern California highway system, giving rise to Bonin’s nom de morte.
Outside the walls of San Quentin, William Bonin had nearly as many supporters as he had enemies. Capital punishment has become such a divisive issue in America that executions become excuses for pro- and anti-capital punishment rallies. Activists and celebrities like Mike Farrell, formerly B.J. Hunnicutt on MASH, and friends and relatives of the victims – and the just plain curious – squared off in the cold rain outside the prison until the word was sent down that Bonin was dead. Bonin’s last words, delivered to the warden about an hour before his execution, expressed no remorse for his crimes and merely pointed out that he thought the death penalty was unfair.
Bonin added some words of advice for potential serial killers: "I would suggest that when a person has a thought of doing anything serious against the law, that before they did that they should go to a quiet place and think about it seriously.” Bonin, who spent more time on death row than a majority of his victims spent on Earth, was 49.
The First Victim
By seven years old, William Bonin was already on his way to being a lost cause. The child of an abusive, alcoholic father who once gambled away the family home, Bonin and his brother were often left by their mother in the care of her father. Alice Benton left them with their grandfather despite the fact that she had grown up being sexually abused by the man, a well-known pedophile. Bonin’s mother spent all of her free time playing bingo, often forgetting to feed her children, and neighbors said the Bonin boys were always hungry, dirty and ill-clothed.
During his eighth year, Bonin served his first stint behind bars, being jailed in juvenile hall for stealing license plates. In that hellhole of a reformatory, Bonin became the sexual plaything to older boys, setting the stage for his own twisted understanding of sex. The detention home was a veritable house of horrors where sexual sadism, Inquisition-like punishments such as submersion in ice water, and threats at the point of a knife were commonplace.
While in detention, according to Connecticut medical records, Bonin had been approached for sex by an older boy and although young William was afraid of the attacker, agreed to participate, provided that he be restrained: "An older boy approached Bonin for homosexual contact, and Bonin was frightened, but Bonin agreed to it if the older boy would tie his hands behind his back--allowing Mr. Bonin to feel more secure and less frightened," the records showed.
To Dr. Jonathan H. Pincus, a Georgetown University Hospital neurologist who examined Bonin during his incarceration for the freeway killings, the incident suggests much about Bonin's earlier years. The fact that Bonin, at age 8, was sexually aware and asked for restraints led Pincus to believe he had been a prior victim of sexual assault. "It is inconceivable that he was not sexually abused and forcibly restrained by adult abusers before" the incident, Pincus wrote in a report to Bonin's lawyers.
William eventually returned to his home, where he began fondling his brother and other children in the area. William joined the U.S. Air Force and logged 700 hours in combat or patrol while serving as an aerial gunner in Vietnam, where his service record indicates he was a good soldier, winning a good conduct medal. It wasn’t until after he received his honorable discharge that the military learned Bonin had sexually assaulted two men in his outfit at gunpoint. He moved from his native Connecticut to Southern California, where he began the dark descent into savagery that would end in San Quentin twenty-one years later.
"No More Witnesses"
It didn’t take long for Bonin to succumb to his demons. His first known interaction with the law came in 1969 when he was accused of sexually abusing five boys in Los Angeles County. In each case, Bonin picked up the boys while driving around then handcuffed and sodomized them. Convicted of the assaults, Bonin was deemed a “mentally disordered sex offender” and rather than being sent to prison, was remanded to the Atascadaro State Hospital.
He was examined by several neurologists, psychiatrists and psychologists, but what treatment he received for his damaged psyche is unknown. Bonin had no memory of being physically abused. Doctors suspect he repressed the memory. "There is much data to indicate that Bonin was severely and recurrently sexually abused as a child," wrote one psychiatrist who examined William.
Doctors found a variety of other physical and psychological anomalies: brain damage in the area that is thought to restrain violent impulses; manic-depressive illness, and several unexplained scars on his head and backside. Bonin, the doctors said, could not explain the scars. Five years later, Bonin was released from the state hospital and placed on probation for five years. Clearly, by this point, William was unable to control his sick urges. He was a practicing pedophile, but hadn’t yet become a killer. On the last day of summer vacation in 1975 David McVicker was thumbing for a ride to Huntington Beach. He was 14. Bonin offered McVicker a ride.
"He was totally cool--there was nothing in the least bit strange about him," McVicker told the Los Angeles Times shortly before Bonin’s execution. Bonin asked the young man for sex and McVicker asked him to stop the car. William pulled out a gun, drove to a remote area and raped the boy. Bonin began to choke McVicker with his own T-shirt--the same method Bonin would later use to kill several of his victims. McVicker, gagging, thought he was going to die. When McVicker cried out, Bonin released him and to McVicker’s astonishment, “he apologized for choking me."
The attack on McVicker was especially notable for a couple of events: first, McVicker was the last successful attack for Bonin in which he did not kill, and it was the last time he would ever be known to admit regret for his actions. Like other victims of sexual assault, McVicker’s suffering didn’t end when Bonin freed him.
To this day, he told the Times, he suffers for Bonin’s crime. Feeling dirty and ashamed, he told only his best friend what happened. His mother never wanted to hear the details, McVicker said. School no longer mattered and he quit school that same year. He attended continuation high schools, but never received a diploma. As Bonin's execution neared, McVicker said nightmares replaying the rape plagued him. "Sometimes I wake myself up yelling," McVicker said. "Imagine going to sleep and getting raped 10 to 12 times a night."
McVicker did go to the police and based on his testimony, Bonin was convicted of lewd and lascivious conduct and sent back to prison. He served about three years behind bars. Despite having been convicted of kidnapping and two counts of sodomy with a child in 1968, being diagnosed as a sexual predator and demonstrating criminal sexual conduct seven years later, Bonin was released by the California prison system in 1978. Less than a year after being released from prison for the McVicker attack, Bonin found himself behind bars once again. He was picked up by Orange County officers while he assaulted a 17-year-old hitchhiker.
Incredibly, a records mix-up allowed Bonin to walk out of jail before his trial. Not surprisingly, he never showed for his day in court. That simple clerical error would eventually result in the deaths of more than three dozen young men. Freed by a stroke of fate, Bonin had no intention of ever leaving witnesses to his crimes. A friend who would eventually collect a $20,000 reward for a tip that lead to Bonin’s capture remembers talking with William shortly before he disappeared into the seamy underworld of Los Angeles. “I can remember he said, `No one's going to testify again. This is never going to happen to me again,'” his friend recalled in an interview 10 years after Bonin’s arrest.
Shortly after Bonin’s release, the slayings by the fiend the media dubbed “the Freeway Killer” began. The Freeway Killer At the end of 1979, Southern California was in a state of near panic. Parents were afraid to let their children out of the house, and it appeared that the police were powerless to stop a vicious killer who liked to rape, strangle and stab. The Freeway Killer could practice his grisly trade at will.
The first to die was an exchange student from Germany named Marcus Grabs. The 17-year-old was on a backpacking tour of the United States. Marcus was last seen hitchhiking on the scenic Pacific Coast Highway in Newport Beach on August 5, 1979. His last mistake in this world was accepting a lift from William Bonin. Sometime between 6 p.m. and 10 p.m., according to police, Bonin and a friend, Vernon Butts, picked up Marcus, sodomized and beat the German and left his nude body in Malibu Canyon. Grabs had been stabbed more than 70 times and was found with a yellow nylon rope around his neck. An electrical cord was wrapped around one ankle. William later told a friend that he had killed Marcus Grabs out of self-defense, although this explanation is unlikely to be true.
Vernon Butts
Vernon Butts was a lowlife drifter with a long criminal record of petty offences who was what prosecutors refer to as “doing life in prison on the installment plan.” He had been in and out of penal institutions, and was excited by sadistic homosexual activities – undoubtedly something he had picked up during one of his stays behind bars. Butts accompanied Bonin on several of his killing forays, and was as depraved and twisted as William. Together, they would prowl the highways of Southern California in Bonin’s olive drab van, looking for teens to ravage. Butts would eventually be arrested for his role in the freeway killings and saved the taxpayers of California a great deal of time and expense by hanging himself in his Los Angeles County jail cell.
Three weeks after Grabs’ nude body was found in Malibu Canyon, 15-year-old Donald Hyden of Hollywood turned up dead and mutilated in a trash bin near the Ventura Freeway. He had last been seen near the Gay Community Services Center in LA. Bonin and Butts had struck again. Hyden was raped and strangled with a ligature. His throat had also been slashed and an attempt had been made to castrate him. On September 12, 1979, the body of David Murillo, 17, was found near the Ventura Freeway. He had disappeared while riding his bike to the movies three days earlier. His head had been bashed in with a tire iron, he had been sodomized and strangled with a ligature.
For some time, Orange and Los Angeles County officials denied that they had a serial killer on their hands. Although the modus operandi of the three killings were similar, it wasn’t until several more slayings occurred that authorities acknowledged what the media had been reporting for weeks. But the facts were there: somewhere in Southern California a serial killer was loose leaving few clues and seemed free to murder whenever the mood struck. "Like a Dope Addict" Bonin either laid low for several months, or changed his method of operation significantly enough to avoid being suspected of any killings until December 1979 when the body of Frank Fox, 17, was found in similar condition to the previous victims, near Ortega Highway and the I-5 freeway.
Psychiatrists at his Los Angeles trial said Bonin was likely in a manic state when he killed. His violent sexual urges would finally be irresistible. "He described feeling excited by the prospect of killing someone, of being barely able to wait for sundown so he could begin to cruise to pick up someone for this purpose and obtain some sense of release,” wrote one psychiatrist who examined Bonin. Earl Hanson, a Los Angeles attorney who represented Bonin when he confessed to the murders, compared Bonin's thirst for violence to a dope habit. "He had to constantly increase the dosage to get the same euphoria," Hanson told the Los Angeles Times.
Matthew Miley
On the morning of February 3, 1980 Bonin and another sexual psychopath, Gregory Matthew Miley, were cruising the highways when they saw 15-year-old Charles Miranda in West Hollywood. Picking up the young man, they drove for several blocks and parked the van. Bonin then sodomized Miranda and urged Miley to do the same, but Miley was “unable to sustain an erection,” according to official reports. Frustrated with his impotence, Miley raped the teen with a blunt object. Then Bonin took over again.
Sterling E. Norris, the prosecutor who convicted Bonin of 10 murders, said Bonin often goaded and belittled his accomplices into helping with the killing. "Can you do it?" Bonin asked Miley as he choked 15-year-old Charles Miranda. "Let me show you how to do this." Bonin strangled Miranda with the boy's shirt, using a tire iron to twist the shirt like a tourniquet around Miranda's neck. Miranda's nude body was found in a Los Angeles alley. "Bonin loved the killing," said Norris. "He delighted in talking about it." Driven with blood lust, Bonin and Miley drove around some more after dumping Miranda’s corpse. They wanted to kill again.
Their next victim was 12-year-old James McCabe who was waiting at a bus stop for a bus to Disneyland. While Miley drove around, Bonin assaulted the youngster and strangled him, again using the boy’s shirt and a tire iron. James McCabe, who was looking for a trip to the Magic Kingdom and met lurking death instead, was found three days later near a dumpster in Walnut City.
Bonin and Miley used the $6 they found in his wallet to buy lunch.
Resumè of Death
Other murders followed quickly: Ronald Gatlin, 18, of Van Nuys. Disappeared from North Hollywood March 14, 1980. Sexually assaulted and strangled. His body was discovered the next day in Duarte. Harry Todd Turner, 14, Los Angeles. Disappeared from Hollywood on March 20, 1980. Sexually assaulted and strangled. His body was found five days later near the Santa Monica Freeway. Glen Norman Barker, 14, Huntington Beach. Sexually assaulted and strangled. His body was found March 22, 1980, beside Ortega Highway. Russell Duane Rugh, 15, Garden Grove. Disappeared while waiting for a bus to take him to his fast-food job. Sexually assaulted and strangled. His body was found March 22, 1980, beside Ortega Highway, alongside the body of Glen Barker. Steven Wood, 16, Bellflower. Last seen April 10, 1980, on his way to school. Sexually assaulted and strangled. His body was found the next day. Lawrence Eugene Sharp, 18, Long Beach. Last seen April 10, 1980. Sexually assaulted and strangled. His body found May 18, 1980, in a trash bin behind a Westminster service station. Darin Lee Kendrick, 19, Cypress. Disappeared April 29, 1980, from a Stanton store where he worked.
In addition to being sodomized and strangled by ligature, Darin apparently was forced to ingest chloral hydrate which left him with caustic chemical burns on his mouth, chin, chest and stomach. Darin also had an ice pick through his right ear that caused a fatal wound to the upper cervical spinal cord. His body was found the next morning.
Bonin had the police running in circles and was enjoying the publicity his killings were receiving. He would point out to his friends the work that the Freeway Killer was doing and once remarked that “this guy is giving good gays like us a bad name.” He was keeping a scrapbook of his work in his van. A nondescript arrest would soon blow the case wide open, however. In May, police busted a car thief named William Pugh.
The 17-year-old was more than just a thief, however. He had been along for the ride when Bonin killed Harry Turner and would eventually serve six years for voluntary manslaughter – part of a plea deal in exchange for his testimony. In an attempt to save his own skin, Pugh told authorities that he had accepted a ride home from a man who had boasted of the Freeway Killings. Police began looking for William Bonin based on Pugh’s allegations.
James Munro
On the morning of June 2, 1980, Bonin and another accomplice, a mentally challenged drifter named James Munro picked up 19-year-old Steven Wells. According to Munro’s testimony, Wells agreed to accompany the men back to the apartment they were sharing so that they could have sex. Munro, who is serving a 15-to-life sentence in Ione Penitentiary in California for his role in Wells’ death, said that Bonin and Wells had sex and Bonin offered Wells $200 if he could tie up the young man. Wells agreed, Munro said, and shortly after he was bound, Bonin began to assault him verbally and physically. Munro said he watched TV in another room while Bonin tied up and sexually assaulted the youth in his own mother's bedroom. Bonin called him in, he said: "At that point I knew it was real. Bonin went to get a glass of water and I told him, 'No, don't do this.' But Bonin said, 'It's too late. There is nothing that you or I can do to stop it.'"
Bonin said Munro helped kill Wells, but Munro claims he was in another room when the man was strangled. Regardless, his actions amounted to first-degree murder, which could have put him in the gas chamber right next to Bonin and Butts. After Wells was dead, Bonin and Munro took the body in Bonin’s van over to Butts’ home, who told them to “go dump it somewhere.” The next day, Wells’ body was found behind a gas station dumpster. Sadly, if the killers had tarried just a little longer at their apartment, they would have been observed by the LAPD detectives who had begun surveillance of William Bonin. There was a chance that they would have been able to save Wells’ life.
Capture and Confession - Over the next few days, detectives kept a close eye on William Bonin. For the next week his activities were unremarkable. He would go to work as a truck driver each day and return home to his apartment late at night, after visiting with friends around town. The night of Wells’ murder, Bonin had hinted to Munro that the drifter had better keep his mouth shut or else. Munro, fearful for his own life, fled back home to Michigan. Nine days after Wells’ murder, Bonin’s demons apparently returned and he began looking for a new victim.
Police officers tailing his van observed him trying to pick up five different young men, finally succeeding with a 15-year-old boy. They watched as Bonin drove to a deserted beach parking lot and by the time they approached the van, they were able to arrest Bonin in the process of sodomizing the teenager. Tape and rope similar to that which bound his victims was found in the van, as well as William’s scrapbook for Freeway Killer stories. Butts was picked up shortly after Bonin, and Munro was arrested by Michigan State Police a month later. The Freeway Killer team was behind bars. This time there would be no clerical errors.
Bonin expressed no remorse for what he had done although he did demonstrate embarrassment and regret at being apprehended. Once confronted with the evidence he freely confessed to police. After his arrest Bonin told a reporter "I'd still be killing. I couldn't stop killing. It got easier each time."
Bonin confessed to killing 21 young men and boys. He shared aspects of each crime in horrifying detail. Describing how he Munro murdered Wells, Bonin sounded like he was describing a weekend event to coworkers on Monday morning. "Both me and Jim beat him up prior to killing him," Bonin can be heard saying in a soft monotone on police tapes. "He said he wouldn't tell anyone, just to let him go. “When we finally got around to killing him, we put a shirt around his neck. I twisted it, and he was strangled."
Years later, Bonin’s lack of feeling during his confession would still be remembered by those who were there. “This guy was impassioned about what he did. He loved it,” said Sterling E. Norris, the Los Angeles deputy district attorney who prosecuted Bonin. “Listening to his confession was like sitting in a room of horrors. Here we are talking about killing kids, killing one and throwing him out like a piece of trash, and then going back to get another. It made me sick.”
"A Caring Man"
Bonin’s trial was short and sweet. It didn’t take long for the prosecution to poke holes in his claim that Butts was the mind behind the madness and it didn’t take long for the jury to decide that William Bonin had to die for his crimes. But Bonin wasn’t finished yet. He took advantage of the American legal system and appealed his sentence. Every time an appeal failed, he tried a different route. He tried to bargain with the knowledge he had of other unsolved murders, but his aid wasn’t worth his life, authorities said. Finally, 17 years after the judge pronounced sentence, the U.S. Supreme Court told the lower federal courts that no more stays would be issued unless they were issued by the Supreme Court. Bonin, had a date with the executioner.
In his 17-year fight, Bonin encountered one piece of good luck. After Robert Alton Harris died slowly and uncomfortably in the California gas chamber, a state court ruled that that method of execution was cruel and unusual. An alternate method would have to be found. California settled on lethal injection. In almost every instance, lethal injection was found to be a quick and relatively painless way to execute a convict.
By the time Bonin had worn out his appeals, he had published a book of short stories, had an exhibition of his abstract paintings at a gallery in Seattle, and corresponded with many of the survivors of his victims. He once told the mother of one of his victims that her son had been his favorite victim because “he was such a screamer” But still, Bonin would not give them the satisfaction of even one word of apology. He had even been able to win friends on the outside with his “caring nature.” “He has a very basic sense of caring for human beings,” said Alexis Skriloff, Bonin’s biographer “I know that's completely the opposite of what everyone sees.”
The day of the execution, Bonin was taken to a special holding cell on Death Row, issued new uniform pants and shirt, and given access to his spiritual advisor. For his last meal, he ate pepperoni and sausage pizza, Coca-cola and chocolate ice cream. He ate alone. At 11:01 p.m. prison guards called the telephone company to get the official time and to double-check that the phones in the death chamber were working. An hour earlier, technicians had been in the chamber, preparing the syringes and other medical supplies needed for the execution. Fifteen minutes before midnight, Bonin was taken from the holding cell and walked into the execution chamber.
We have to take the word of the prison staff for how he acted during this time, because no witnesses were allowed to see William until he was strapped down on the gurney and the tranquilizer had been administered. The execution was scheduled to begin at 12:01 a.m., but was delayed for 8 minutes while technicians struggled to find a good vein for the IV. Witnesses said it was impossible to tell if he was even alive at this point, because he was laying with his eyes closed, breathing in a very shallow manner. By 12:13 a.m. William Bonin was dead.
The final insult to the people of California didn’t come until several weeks later when it was revealed that Bonin’s family had been cashing his social security disability checks. Bonin's mother, Alice Benton, told a newspaper she used the money to make about $75,000 in payments on her Downey home. The benefit payments, which Bonin began receiving for a mental disability in 1972, should have ended when he went to prison in 1982. But the money kept flowing even though prison officials notified the Social Security Administration that Bonin was behind bars. The error came to light only after a funeral director notified Social Security of Bonin’s death.
Of the men who assisted Bonin during his killing spree, only Miley and Munro remain in prison. Miley is serving a 25-to-life term for 1st Degree murder, and Munro has served more than the minimum of his 15 to life sentence for his second-degree murder plea. He was eligible for parole in 2000, but the parents of Steven Wells have made it a point to make sure he serves the maximum. Munro, who complained recently that he hasn’t had a decent night’s sleep since he entered prison, has begged the Wells for forgiveness and says he regrets not only participating in the killing of their son, but his guilty plea as well. "I was just a stupid kid. If I'd known that 15 years to life meant I was never going to get out of prison, I would never have pleaded guilty," Munro told the LA Times.
For the survivors of the Freeway Killer’s madness, Bonin’s execution hasn’t meant an end to their grief. “Now I stay home all the time, I'm paranoid, I don't go out after dusk. The only thing that gets me out of bed is my hobbies, like crochet and painting,” said the mother of one of Bonin’s victims. “People say time makes things easier. Well, I'm still waiting. I wish I could be happy; I just can't find my way out of this maze.” For others, the search for their missing children goes on, and the only person who can say for sure whether Bonin was their killer died in the execution chamber at San Quentin.
The mother of one victim whose disappearance bears remarkable similarity to Bonin’s M.O. found out only on the day of Bonin’s execution that the Freeway Killer was going to take his secrets to the grave. She begged authorities for one more day just to ask about her son, but the governor couldn’t be located to issue a stay. "He was out of town. We tried up until two or three minutes before the execution," said Barbara Brogli, whose 14-year-old son disappeared about the time Bonin was plying his gruesome trade. His bones were found years later near Ortega Highway. "I would like to know, definitely," she said. "It would be a complete closure. If [Bonin] did do it, the man's been punished and he'll be dealt with at a higher level. . . . For quite a while, I've been really praying to find out, to know whether he's dead or alive, and I've been praying for strength to get through it. I really believe my prayer was answered and God will take care of the rest."
William George Bonin (8 January 1947 – 23 February 1996) was an American serial killer, also known as “the Freeway Killer”, a nickname he shares with two other serial killers. Along with several accomplices, Bonin raped and killed as many as 20 young men and boys, crimes for which Bonin was eventually executed.
Early life
Bonin was born and raised in Connecticut. His father was a compulsive gambler and alcoholic, and his mother frequently left Bonin and his brother in the care of their grandfather, a convicted child molester. At the age of eight, Bonin was arrested for stealing license plates, and he soon ended up in a juvenile detention center for other minor crime; here, he was sexually abused by older boys. By his teens, back home with his mother, Bonin began molesting younger children.
After high school, Bonin joined the U.S. Air Force and served in the Vietnam War as a gunner, picking up a Good Conduct Medal. After a brief marriage ended in divorce, Bonin moved to California.
In 1969, at age 23, Bonin picked up his first arrest for sexually assaulting young boys. He was imprisoned and released in 1975, but was soon back behind bars for raping a 14-year-old boy.
By 1979, Bonin was back on the streets, and reportedly told a friend that he had no intention of going back to prison; not because he was going to give up preying on youngsters, but because he had no intention of leaving witnesses.
Murder spree
Bonin's first victim was a 14-year-old hitchhiker named Thomas Lundgren. The youth was kidnapped, assaulted and killed on 28 May 1979. An autopsy showed that he had been strangled to death. Bonin carried out the crime with his primary accomplice, Vernon Butts, a 22-year-old factory worker who boasted of being a wizard, and who slept in a coffin.
Cruising around in his van, Bonin (sometimes accompanied by Butts) would hunt for victims around Los Angeles, usually selecting young male prostitutes or hitchhikers as victims.
Before the end of 1979, seven more teenaged boys were found raped and murdered.
On the first day of 1980, 16-year-old Michael McDonald was brutalized and killed. A month later, on 3 February in Hollywood, Bonin abducted and killed 15-year-old Charles Miranda, this time assisted by a young man named Gregory Miley. The victim was garroted, and his nude corpse dumped in an alleyway. Bonin then suggested to Miley, "Let's do another one," and so they went hunting for the second victim of the day. A few hours later, they abducted, raped and killed James McCabe who, at age 12, was the youngest victim.
Bonin killed three more boys in March, another three in April and two in May. The final victim was a teenager named Steven Wells, who was killed on 2 June 1980. Bonin was assisted in this final murder by his roommate, 18-year-old James Munro.
By then, Bonin was under suspicion in the recent spate of murders due to his criminal record. The police put him under surveillance, and, on 11 June they arrested him in the act of assaulting a 15-year-old boy, Harold T.
Confession and execution
In custody, Bonin confessed to abducting and killing 21 boys and young men. Police also suspect him in approximately 15 other murders. He was eventually charged with 14 of the murders to which he confessed. He expressed no remorse and told one reporter, "I couldn't stop killing. It got easier each time."
Convicted on all counts, Bonin was sentenced to death. It was not until 23 February 1996, 16 years after his arrest, that he was executed by lethal injection. He was the first person to be executed by lethal injection in California history.
His main accomplice, Vernon Butts, was accused of taking part in six of the murders, but he hanged himself while awaiting trial. Gregory Miley and James Munro were given sentences of 25 years to life and 15 years to life, respectively, after pleading guilty to taking part in one murder each. Both men are still incarcerated. Munro has been trying to appeal, claiming that he had been tricked into accepting a plea bargain. A fourth accomplice, who had been present at one murder, was given a six-year sentence for manslaughter.
Other 'freeway killers'
Young men and boys continued to turn up dead along the freeways of Southern California after Bonin's arrest, leading police to initially believe that he had other accomplices who were still active. However, these later murders turned out to have been committed by Randy Steven Kraft, who acted entirely separately from Bonin but who happened to have a similar method.
In fact there was a third freeway killer, Patrick Kearney, who also happened to select young men as victims from the freeways of Southern California during the 1970s. The three independent killers collectively may have claimed up to 130 victims.
Wikipedia.org
William Bonin Bibliography
News In Brief 3D Freeway Killer' Suspect. August 1, 1980. Boston Globe.
US/ World News In Brief Suspect Pleads Innocent. August 9, 1980. Boston Globe.
Heilner, Sam. Names And Faces. January 3, 1981. Boston Globe.
Calif. Man Pleads Innocent In Case Of Freeway Killer. January 29, 1981. Boston Globe.
2 Charges Dropped In Freeway Murders. April 1, 1981. Boston Globe.
Blake, Gene. Reporter Tells Details Of Bonin Conversations. December 15, 1981.
US/World News Briefs Freeway Killer Quoted. January 19, 1982. Boston Globe.
Bonin Sentenced To Death In The Freeway Killer Case. January 21, 1982. Boston Globe.
US/World News Briefs Freeway Killer Sentenced. March 12, 1982. Boston Globe.
Bonin Gets Death Sentence. March 13, 1982. Boston Globe.
Jigsaw John, L. A. Detective, Retires At 75. March 15, 1993. San Diego Union- Tribune.
Freeway Killer: Gets Death- Penalty Review. October 6, 1994. San Diego Union-Tribune.
Appeals Court: Will Review Conviction Of Freeway Killer. October 6, 1994. Los Angeles Times.
Freeway Killer: Moves Closer To Execution. June 30, 1995. San Diego Union- Tribune.
Holding, Reynolds. "Freeway Killer" Loses Appeal. June 30, 1995. San Francisco Chronicle.
Egelko, Bob. State Asks Court To Allow Gas Chamber Executions. December 6, 1995. San Diego Union- Tribune (Online Archives)
Egelko, Bob. Execution Date Near Double Murder/ Police Officer's Son To Die By Lethal Injection Jan. 26. January 4, 1996. San Diego Union- Tribune.
Lavin, Enrique. Freeway Killer May Finally Face Execution: William Bonin's Final Appeal Is Expected To Be Denied. He Was Convicted In 1982 Of 14 Murders. January 6, 1996. Los Angeles Times.
Freeway Killer: Appeal Bid Denied. January 9, 1996. San Diego Union- Tribune.
Plate, Tom. Bonin On Death Row. January 16, 1996. Los Angeles Times.
Execution Stayed For Convicted Killer. January 20, 1996. San Diego Union- Tribune.
Inmate Near Execution Will Make Two Appeals. February 4, 1996. San Diego Union.
Attorneys Again Appeal To Save Freeway Killer. February 6, 1996. San Diego Union.
Egelko, Bob. Freeway Killer: Loses Bid For New Trial. February 16, 1996. San Diego Union- Tribune.
Holding, Reynolds. Death Of Serial Killer. February 17, 1996. San Francisco Chronicle.
Filkins, Dexter. The Twisted Life That Led Bonin To Death Row; Crime: Neighbors Recall Signs Of Trouble And Experts Look For Roots Of Serial Killers Murderous Ways. February 18, 1996. Los Angeles Times.
Filkins, Dexter. Clues From Condemmed Man's Past; Profile: A Look Into The Shaping Of William Bonin's Deeds Begins At His Old Downy Home And Leads Back To A Dark Childhood. February 18, 1996. Los Angeles Times.
Krueger, Ann. California Death Penalty/ A Humane Way To Die? State's 1st Execution By Injection Scheduled Friday. February 19, 1996. San Diego Union- Tribune.
Ellingwood, Ken. COLUMN ONE; The Other Victims Of William Bonin; Families Who Lost Loved Ones To The Serial Killer Are Tormented By Grief. February 19, 1996. Los Angeles Times.
Chiang, Harriet. PAGE ONE- Boy's Killer Led A Twisted, Tortured Life. February 19, 1996. San Francisco Chronicle.
Morse, Rob. Dead Man Waiting. February 20, 1996. San Francisco Examiner.
Perlman, David. Ethical Dilemma For Physician At Bonin's Execution. February 20, 1996. San Francisco Chronicle.
Krueger, Anne. Death Chamber Next Stop For Freeway Killer. February 20, 1996. San Diego Union- Tribune.
Perlman, David. Ethical Dilemma For Physician At Bonin's Execution. February 20, 1996. San Francisco Chronicle.
Hicks, Jerry. Death penalty Qualms, No, It's Time For Bonin To Pay. February 20, 1996. Los Angeles Times.
Hatfiald, Larry. Lethal Dose awaits L.A. Freeway Killer. February 20, 1996. San Francisco Examiner.
"Freeway Killer" Denied Clemency. February 21, 1996. Boston Globe.
Jones, Robert A. Robert A. Jones; Hearts Of The City/ Exploring Attitudes And Issues Behind The News; Mopping Up Evil; We Are Talking About The Era Of Big Evil In Southern California, A Period Spanning The La. February 21, 1996. Los Angeles Times.
Olivio, Antonio. Wilson Denies Clemency For Freeway Killer: Bonin's Lawyers Will Continue Last- Minute Efforts To Block The Execution, Set For Friday. February 21, 1996. Los Angeles Times.
Wallace, Amy. Wilson Denies Bonin's Plea To Halt Execution. February 21, 1996. Los Angeles Times. Garcia, Kenneth. PAGE ONE-- San Quentin's Step -By -Step Guide To Execution Procedure 770 Governs Condemmed Convicts' Final Hours. February 21, 1996. San Francisco Chronicle.
Chiang, Harriet. Wilson, Courts Deny Death-Row Appeals "Freeway Killer" Still Trying For Delay. February 21, 1996. San Francisco Chronicle.
Letters To The Editor. February 22, 1996. San Francisco Chronicle.
Egelko, Bob. Court Upholds Gas Chamber Ban. February 22, 1996. San Diego Union- Tribune.
Dougan, Michael. Execution Protest March Leaves S.F. For San Quetin. February 22, 1996. San Francisco Examiner.
Fagan, Kevin. "Freeway Killer" Tries To Call Radio Station. February 22, 1996. San Francisco Chronicle.
Davidson, Ross Killer Of 14 Executed In California. February 23, 1996. Elctric Library, Reuters.
Harfield, Larry. State's First Lethal Injection. February 23, 1996. San Francisco Examiner.
Chiang, Harriet. "Freeway Killer" Put To Death Bonin Loses Last- Ditch Appeals. February 23, 1996. San Francisco Chronicle.
Chiang, Harriet. Freeway Killer: Put To Death, Bonin Loses Last-Ditch Appeals. February23, 1996. San Francisco Chronicle.
Freeway Killer: Bonin Executed; Capital Punishment: The Sadistic Slayer Confessed To 21 Murders Of Youths That Gripped Orange And L.A. Counties. He Is The First California Inmate To Die By Lethal Inj. February 23, 1996. Los Angeles Times.
Kempster, Norman. Bonin Nears Execution As Appeals Fail. February 23, 1996. Los Angeles Times.
Krueger, Anne. Condemned Killer Denied Late Appeals. February 23, 1996. San Diego Union- Tribune.
Krueger, Anne. Serial Killer Executed At San Quentin. February 23, 1996. San Diego Union- Tribune.
Krueger, Anne. Judgment Day On Death Row/ AFreeway Killer Gets Lethal Injection. February 23, 1996. San Diego Union- Tribune.
Dougan, Michael. Protest Passions Flare As Bonin Dies. February 23, 1996. San Francisco Examiner.
Krueger, Anne. Deaths Of Killers Are Becoming Routine/ Bonin's Execution Went Almost like Clockwork. February 24, 1996. San Diego Union- Tribune.
Alvord, Valerie. Legal Changes Clear Path To Execution. February 24, 1996. San Diego Union- Tribune.
Families Of Victims Raise Toast After Calif. Execution. February 24, 1996. The Roanoke Times.
Victims: Kin Celebrate Execution. February 24, 1996. Depot News And Record.
Media Is Out Of Touch. February 24, 1996. Depot News and Record
King, Peter H. My Victim's Better Than Your Victim. February 25, 1996. Los Angeles Times.
Dead Man Walking: The Bonin Execution. February 26, 1996. San Francisco Chronicle.
McLellan, Dennis. Bonin's Execution. February 27, 1996. Los Angeles Times.
Secrecy And Bonin's Execution. February 27, 1996. San Francisco Examiner.
Dolan, Maura. Social Security Criticized For Paying Bonin. March 6, 1996. Los Angeles Times.
Freeway Killer's Mom Got His Benefit Checks. March 7, 1996. San Diego Union- Tribune.
Chiang, Harriet. "Freeway Killer" Payments Embarrass Social Security. March 7, 1996. San Francisco Chronicle.
Bailey, Eric. 3-State Audit Shows Only Bonin Got Payments; Social Security: Survey Covered Condemned Inmates In California, Nevada and Arizona. Probe Of Benefits To Freeway Killer Continues. March 8, 1996. Los Angeles Times.
In The Nation. March 12, 1996. The Roanoke Times.
Adams, Jim. Family of Freeway Killer: Agrees to Repay Government. March 12, 1996. Electric Library, Reuters.
Parsons, Dana. Dana Parsons; The Mother of All Outrages: Bonin on Social Security. March 13, 1996. Los Angeles Times.
Executed Man's Mom To Repay U.S. Agency. March 3, 1996. San Diego Union- Tribune (Online Archives)
Across The Nation. March 13, 1996. Kansas City Star Newspaper (Online Archives)
Chiang, Harriet. Bonin's Mom To Repay Son's Disability Benefits. March 13, 1996. San Francisco Chronicle (Online Archives)
Williams, Keith Daniel. Friday Execution Special, In A Way. April 28, 1996. San Diego Union- Tribune.
Egelko, Bob. Allow Execution Witnesses To See More, State Is Told. May 2, 1996. San Diego Union- Tribune.
Moran, Greg. Triple Killer Reaches Death Chamber After 18- Year Wait. May 3, 1996. San Diego Union- Tribune.
Moran, Greg. State Executes Triple Murderer/ Killer Of 3 Is Executed 18 Years After Spree. May 3, 1996. San Diego Union- Tribune.
Moran, Greg. At Execution, Triple Killer Had No Final Words/ Two Children Of A Victim Witnessed San Quentin Death. May 4, 1996. San Diego Union- Tribune.
Hua, Thao. Remains May Solve Boy's 1979 Disappearence. October 9, 1996. L.A. Times.
Hua, Thao. Remains ID: As O.C. Boy Who Vanished In 1979. October 9, 1996. Los Angeles Times.
Boy's Death Appears To Fit Bonin Victims. October 10, 1996. L.A. Times.
There's Still No Closure For Dead O.C. Boy's Family. October 10, 1996. L.A. Time.
Rosenweig, David. There's Still No Closure for Dead O.C. Boy's Family; Jamie Trotter's Kin Must Deal With the Strong Possibility Boy Was a Victim of Serial Killer William Bonin. October 10, 1996. Los Angeles Times.
Full Access To Executions OK. March 4, 1997. San Diego Union- Tribune.
999 F.2d 425
William George Bonin, Petitioner-Appellant,
v.
Daniel Vasquez, as Warden of San Quentin State Prison; James Rowland, Director of the California Department of Corrections, Respondents-Appellees.
William George Bonin, Petitioner-Appellant,
v.
Daniel Vasquez, as Warden of San Quentin State Prison; James Rowland, Director of the California Department of Corrections, Respondents-Appellees.
No. 92-56299, 93-99000
Federal Circuits, 9th Cir.
July 16, 1993
Before: WALLACE, Chief Judge, BRUNETTI and Alex KOZINSKI, Circuit Judges.
ORDER
In these consolidated cases, Bonin, a California state prisoner facing a sentence of death, appeals from the district court's denial of his two petitions for habeas corpus relief pursuant to 18 U.S.C. 2254. During the pendency of these appeals Bonin's appointed counsel, the California State Public Defender (Public Defender), filed a request to withdraw as attorney of record which we denied in an unpublished order. The Public Defender subsequently filed a motion for reconsideration, arguing that, because its own ineffectiveness may constitute grounds for relief, conflict of interest concerns mandate the appointment of new counsel. After additional briefing and further review, we adhere to our original denial of the Public Defender's request to withdraw, and we deny the motion for reconsideration.
I
* After a jury trial in Los Angeles, Bonin was sentenced on January 20, 1982, to death for the first degree murders of ten victims. On August 22, 1983, he was sentenced to death in Orange County for the first degree murders of four victims. On July 12, 1990, after his direct appeals failed and his requests for state habeas corpus relief were denied, Bonin filed a petition for a writ of habeas corpus in federal district court arising out of his Orange County convictions and sentence (Orange County case), and on February 7, 1991, from his Los Angeles convictions and sentence (Los Angeles case). The two cases, although not consolidated in the district court, were before the same district judge.
On April 19, 1991, following the Supreme Court's decision in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (McCleskey) (clarifying standards applicable to district court review of claims raised in subsequent habeas corpus petitions), the district court issued an order instructing Bonin to file any additional claims in either or both cases pending before the court by May 13, 1991. On May 17, 1991, Bonin filed a "First Amendment" to his Orange County petition, seeking to add eight new claims; the district court dismissed these additional claims, holding that they constituted an abuse of the writ. The court then denied Bonin's motion for reconsideration of the order dismissing the "First Amendment" in the Orange County case.
No attempt was made to add any claims to the Los Angeles case until December 24, 1991, when Bonin filed a motion proposing to add five new claims. On January 7, 1992, the district court dismissed Bonin's motion to amend the Los Angeles petition because (1) over seven months had passed since the May 13, 1991, deadline with no justification for the delay, and (2) the court held that the five "new" claims were identical to claims Bonin previously had attempted unsuccessfully to add to the Orange County case.
Later in January, the district court conducted a three day evidentiary hearing in both cases. The court issued its Order and Opinion denying Bonin's Orange County petition on July 20, 1992. On August 18, 1992, Bonin filed a "Motion to Amend [Both] Petitions And For Relief From Judgment" setting forth six new claims that had never before been presented either on direct appeal, in state collateral proceedings, or to the district court. The court construed this pleading differently in the two cases: in the Orange County case, because the petition had already been denied, as a Federal Rule of Civil Procedure 60(b) motion for relief from judgment; in the Los Angeles case, because no final judgment had yet been entered, as a Federal Rule of Civil Procedure 15(a) motion to amend the petition.
On September 29, 1992, the district court issued an order stating that it would treat the Rule 60(b) motion in the Orange County case as tantamount to a second petition, the new claims were abusive, and Bonin would have to satisfy McCleskey's "cause and prejudice" test before it would reach the merits of the claims. After Bonin had an opportunity to submit a supplemental brief on whether he could satisfy this test, the district court, on October 6, 1992, denied the Orange County 60(b) motion. On November 9, 1992, the district court denied the Rule 15(a) motion in the Los Angeles case and on the same day issued its Order and Opinion denying Bonin's Los Angeles petition. Bonin has appealed from the district court's orders in both cases.
II
Because final judgment already had been entered in the Orange County case when Bonin first sought to raise six new issues, the district court properly construed Bonin's motion as a request for relief from the judgment pursuant to Rule 60(b). The district court was also correct in treating Bonin's motion in the Los Angeles case as an untimely Rule 15(a) motion to amend the pleadings. The alleged ineffectiveness in the Orange County case relates to the question whether Bonin can establish cause under McCleskey for bringing six abusive claims.
In the Los Angeles case, counsel's incompetence is alleged to be relevant to the determination whether the district court abused its discretion in denying the motion to amend. Because the two cases were in significantly different postures when the issue of present counsel's ineffectiveness was first presented, we will address the request to withdraw as it relates to each case separately.
A.
Along with Bonin's supplemental brief on cause and prejudice filed with the district court in the Orange County case, the Public Defender asked to be relieved as counsel of record because of a conflict of interest stemming from the possibility that its own ineffectiveness in representing Bonin during his habeas proceedings might constitute the requisite "cause" for Bonin's failure to raise the six new claims in a timely fashion. The district court rejected the Public Defender's request, relying on Coleman v. Thompson, --- U.S. ----, ---- - ----, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991) (Coleman ), for the proposition that attorney error establishes cause only if it rises to the level of ineffective assistance of counsel at a time when a petitioner is constitutionally entitled to counsel.
The Public Defender had alleged the possibility that it may have been ineffective in pursuing either Bonin's state or federal habeas petitions. In denying counsel's request to withdraw in the Orange County case, the district court ruled that because "[t]here is no constitutional right to an attorney in state post-conviction proceedings," id. --- U.S. at ----, 111 S.Ct. at 2566, or in federal habeas corpus proceedings, McCleskey, 499 U.S. at ---- - ----, 111 S.Ct. at 1470-71, citing Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (Finley ), any alleged ineffectiveness on the part of the Public Defender could not constitute the requisite "independent constitutional violation," Coleman, --- U.S. at ----, 111 S.Ct. at 2567, needed to establish cause. The Public Defender now asks us to reject the district court's facially sound reasoning and grant its request to withdraw.
We were faced with a somewhat similar situation in Harris v. Vasquez, 949 F.2d 1497 (9th Cir.1991) (Harris ), cert. denied, --- U.S. ----, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). Harris had argued that the cause for his failing to raise a mental health claim in his first habeas petition was ineffectiveness on the part of his appointed counsel. Harris's attorneys had filed motions to withdraw to permit an investigation into their possible ineffectiveness in representing Harris during his first habeas corpus petition.
We denied the motions based on the same reasoning relied on by the district court in this case: because there is no constitutional right to effective counsel during habeas corpus proceedings, "Harris's habeas counsel could not have been constitutionally ineffective as a matter of law." Id. at 1513 n. 13.
The Public Defender contends that Harris is either wrong or not on point. The Public Defender cannot argue Harris was wrongly decided to this three-judge panel as Harris can be overruled only by an en banc court, a Supreme Court decision, or subsequent legislation. United States v. Washington, 872 F.2d 874, 880 (9th Cir.1989). We can, however, decide whether Harris governs this case.
The Public Defender first argues that McCleskey is inapplicable in the Orange County case because Bonin had not filed a second habeas petition, but merely a motion for relief from judgment pursuant to Rule 60(b); thus, according to the Public Defender, the reasoning of Harris has no relevance. We disagree and join the Fourth, Eighth and Eleventh Circuits in holding that because a Rule 60(b) motion following the entry of final judgment in a habeas case raises policy concerns similar to those implicated by a second petition, it is subject to the same cause and prejudice standard. See Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993); Jones v. Murray, 976 F.2d 169, 172 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 27, 120 L.Ed.2d 951 (1992); Lindsey v. Thigpen, 875 F.2d 1509, 1511-12, 1515 (11th Cir.1989); but cf. May v. Collins, 961 F.2d 74, 75-76 (5th Cir.) (addressing merits of 60(b) motion without applying McCleskey standard), cert. denied, --- U.S. ----, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992).
The Public Defender next contends that Harris 's statement that "[a]ttorney error will constitute cause ... only when it constitutes an independent sixth amendment violation," 949 F.2d at 1513, citing Coleman, --- U.S. at ---- - ----, 111 S.Ct. at 2566-68, sweeps too broadly, for several reasons. First, the Public Defender relies on Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986) (Chaney ), cert. denied, 481 U.S. 1023 , 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987), in support of the proposition that our cases establish a constitutional right, rooted in the Fifth Amendment's Due Process Clause, to effective appointed counsel in certain complex habeas cases. The Public Defender misconstrues Chaney, in which we stated that
the Sixth Amendment right to counsel does not apply in habeas corpus actions. Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations.
Id. at 1196 (footnote omitted), citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir.1970) (per curiam); and Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir.1965), cert. denied, 382 U.S. 996 , 86 S.Ct. 582, 15 L.Ed.2d 483 (1966); see also Hatfield v. Bailleaux, 290 F.2d 632, 635 (9th Cir.), cert. denied, 368 U.S. 862 , 82 S.Ct. 105, 7 L.Ed.2d 59 (1961); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 , 79 S.Ct. 131, 3 L.Ed.2d 116 (1958). These cases do not establish a "due process right to counsel."
Rather, Chaney addresses the question whether a district court abuses its discretion in denying an indigent petitioner's request for appointed counsel pursuant to 18 U.S.C. 3006A(g), which gives the district court discretion to appoint counsel for indigents when it determines "that the interests of justice so require." See 801 F.2d at 1196. The answer Chaney gives is that the district court abuses its discretion when the case is so complex that due process violations will occur absent the presence of counsel. See id. Chaney does not purport to declare that due process demands the appointment of counsel; it merely sets forth a standard for determining when section 3006A(g) so requires.
Clearly, there is no constitutional right to counsel on habeas. See Harris, 949 F.2d at 1513-14; Finley, 481 U.S. at 555, 107 S.Ct. at 1993. There is, however, a right to due process. Under Chaney the absence or ineffectiveness of counsel does not in and of itself constitute a due process violation. Chaney indicates only that discretion is abused when appointment of counsel is "necessary to prevent due process violations" from occurring. 801 F.2d at 1196.
If Bonin can demonstrate that his proceedings before the district court violated due process, he may be entitled to relief. But whether his right to due process was violated is an independent inquiry from whether his counsel was effective. In some complex cases where the district court abused its discretion in not appointing counsel under Chaney, a due process violation may occur on habeas that could have been prevented by effective counsel.
However, in other cases, while no counsel was appointed or appointed counsel was ineffective, a habeas proceeding could still be conducted without any due process violations. The Public Defender's reading of Chaney is strained: it is in essence an attempt to include Sixth Amendment rights within the Due Process Clause in complex habeas cases. The Public Defender's argument is incorrect. Because our due process inquiry does not depend upon an analysis of the Public Defender's effectiveness, there is no threat that a conflict of interest will arise in the course of that inquiry.
The Public Defender also directs our attention to language in Coleman, --- U.S. at ---- - ----, 111 S.Ct. at 2567-68, that "compels the conclusion" that ineffective representation during state postconviction proceedings will constitute an independent violation of the Sixth Amendment, enforceable against the states through the Due Process Clause of the Fourteenth Amendment, where state collateral review is the first place a petitioner can present an effective constitutional challenge to his or her conviction; for example, where a state permits ineffective assistance claims to be brought only in postconviction proceedings.
The Public Defender apparently contends that Bonin had a Sixth Amendment right to counsel during his state habeas proceedings because that was the first forum in which he could allege constitutional ineffectiveness on the part of trial counsel. Coleman, however, does not "compel the conclusion" that such a right exists. Rather, the Supreme Court merely remarked that "[f]or Coleman to prevail, ... there must be an exception to the rule [that there is no right to counsel in state collateral proceedings] in those cases where state collateral review is the first place a prisoner can present a challenge to his conviction." Id. --- U.S. at ----, 111 S.Ct. at 2567. The Court declined to address this question on the facts of the case before it. Id. --- U.S. at ---- - ----, 111 S.Ct. at 2567-68. Furthermore, the Court explicitly stated that "[t]he effectiveness of Coleman's counsel before [the state habeas] court is not at issue here." Id.
There is a practical reason why we will not follow the Public Defender's recommendation. The actual impact of such an exception would be the likelihood of an infinite continuum of litigation in many criminal cases. If a petitioner has a Sixth Amendment right to competent counsel in his or her first state postconviction proceeding because that is the first forum in which the ineffectiveness of trial counsel can be alleged, it follows that the petitioner has a Sixth Amendment right to counsel in the second state postconviction proceeding, for that is the first forum in which he or she can raise a challenge based on counsel's performance in the first state postconviction proceeding.
Furthermore, because the petitioner's first federal habeas petition will present the first opportunity to raise the ineffective assistance of counsel in the second state postconviction proceeding, it follows logically that the petitioner has a Sixth Amendment right to counsel in the first federal habeas proceeding as well. And so it would go. Because any Sixth Amendment violation constitutes cause, McCleskey, 499 U.S. at ----, 111 S.Ct. at 1470, federal courts would never be able to avoid reaching the merits any ineffective-assistance claim, regardless of the nature of the proceeding in which counsel's competence is alleged to have been defective. As a result, the "exception" would swallow the rule.
To obviate such an absurdity, we hold that the protections of the Sixth Amendment right to counsel do not extend to either state collateral proceedings or federal habeas corpus proceedings. See Coleman, --- U.S. at ----, 111 S.Ct. at 2568; Finley, 481 U.S. at 555, 107 S.Ct. at 1993; Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1 (1989) (Giarratano ); McCleskey, 499 U.S. at ---- - ----, 111 S.Ct. at 1470-71.
Next, the Public Defender points to dicta in Coleman to the effect that where the federal Constitution imposes on the state a responsibility to ensure that a petitioner was represented by competent counsel, the state must bear the cost of any resulting default. --- U.S. at ----, 111 S.Ct. at 2567. Although states are not required by the federal Constitution to provide counsel to criminal defendants beyond the first appeal as of right, Ross v. Moffitt, 417 U.S. 600, 610-11, 614-16, 94 S.Ct. 2437, 2443-44, 2445-46, 41 L.Ed.2d 341 (1974); Finley, 481 U.S. at 555-56, 107 S.Ct. at 1993, the Public Defender argues that because California law required that Bonin be represented by competent counsel during his state postconviction proceedings, see People v. Barton, 21 Cal.3d 513, 519 & n. 3, 146 Cal.Rptr. 727, 579 P.2d 1043 (1978) (Barton ); People v. Shipman, 62 Cal.2d 226, 231, 42 Cal.Rptr. 1, 397 P.2d 993 (1965) (Shipman ), and the Public Defender is itself a state agency, the state must be held responsible for its failure to provide Bonin with competent counsel during state habeas proceedings, on a theory of "state interference." The Public Defender is wrong for two reasons.
First, California law is not relevant. The Coleman dicta on which the Public Defender relies addresses only situations in which federal constitutional principles mandate that states provide counsel. See --- U.S. at ----, 111 S.Ct. at 2567. Second, it is not "California law" itself that has, in the past, extended a right to competent counsel to state habeas petitioners, but California's interpretation of the Fourteenth Amendment to the United States Constitution. Barton relied on Shipman for the proposition that "the principles of the [United States Supreme Court's] Fourteenth Amendment cases apply whenever a state affords a direct or collateral remedy to attack a criminal conviction." Barton, 21 Cal.3d at 519 n. 3, 146 Cal.Rptr. 727, 579 P.2d 1043 (internal quotation omitted). In Shipman, the California Supreme Court reasoned:
Although the United States Supreme Court has not held that due process or equal protection requires appointment of counsel to present collateral attacks on convictions, it has held that counsel must be appointed to represent the defendant on his first appeal as of right. Since the questions that may be raised on [collateral attack] are as crucial as those that may be raised on direct appeal, [Supreme Court precedent] precludes our holding that appointment of counsel in [collateral] proceedings rests solely in the discretion of the court.
62 Cal.2d at 231, 42 Cal.Rptr. 1, 397 P.2d 993 (citations omitted). So matters stood in 1965, when Shipman was decided, and 1978, the year of Barton. Since then, however, the Supreme Court has decided Finley, which firmly established that there is no federal constitutional right to an attorney in state postconviction proceedings, 481 U.S. at 555, 107 S.Ct. at 1993, and Giarratano, 492 U.S. at 10, 109 S.Ct. at 2770, which extended Finley to capital cases. On this point, Shipman and Barton cannot control.
The Public Defender also relies on Bonin's "due process rights under California law to competent counsel in state death penalty habeas corpus proceedings," the violation of which "provides the independent constitutional violation required by Coleman." But the California cases on which the Public Defender relies, Shipman and its progeny, do not create a California state law right to counsel; rather, they interpret the federal Constitution as providing such a right. As we have just demonstrated, this reasoning cannot be reconciled with recent Supreme Court doctrine.
Even if California's constitutional guarantees were interpreted to grant Bonin a right to counsel in state collateral proceedings, the deprivation of that state-law right would not be the "independent constitutional violation" of Coleman, because Coleman referred only to violations of the federal constitution. See --- U.S. at ---- - ----, 111 S.Ct. at 2566-68.
Lastly, the Public Defender argues that the Sixth Amendment right to counsel extended to Bonin's first state habeas petition because, pursuant to California procedure, this petition was filed at the same time as the first appeal as of right, to which the Sixth Amendment protections undeniably attach. See, e.g., People v. Pope, 23 Cal.3d 412, 426-27 n. 17, 152 Cal.Rptr. 732, 590 P.2d 859 (1979) (stating appropriate procedure for bringing ineffective-assistance claim in state habeas petition).
The contemporaneousness of filing does not cause the constitutional guarantees present on direct appeal to be transferred to the state habeas proceedings as well, where they are otherwise inapplicable. Bonin never contended before the district court that counsel's ineffectiveness on direct appeal itself may have been the "cause" for his failure to raise the six new claims at an earlier date. Bonin's supplemental brief responsive to the district court's order that he must satisfy McCleskey 's cause requirement stated only that "the performance of ... counsel at the time of the state habeas corpus proceedings need[s] to be examined in light of the McCleskey standard" (emphasis added).
As we have just reiterated, no constitutional right to competent counsel extended to this proceeding. It may be that the Public Defender is attempting to argue in its supplemental brief, for the very first time, that its performance as counsel on Bonin's direct appeal might have been inadequate. If so, we will not consider it because it was never presented to the district court in resolving the merits of Bonin's appeal from the Orange County case. Cf. Willard v. California, 812 F.2d 461, 465 (9th Cir.1987) (Willard ) (court of appeals declines to consider claims not presented in habeas petition).
As in Harris, the Public Defender has identified no point at which its alleged incompetence could have amounted to a constitutional violation. Thus, its ineffectiveness is no basis for any finding of cause to excuse the abusive claims presented in the Rule 60(b) motion, and under Harris the Orange County case presents no grounds for granting the Public Defender's request to withdraw. See 949 F.2d at 1513 & n. 13.
B.
Because no final judgment had been rendered at the time of filing, the district court correctly did not rely on McCleskey when it denied Bonin's Los Angeles motion, as the issue of cause is not relevant. It may be argued that the district court abused its discretion in denying Bonin's motion to amend, because the Public Defender may be placed in the ethically troubling position of having to litigate the question of its own competence. But we are not faced with that issue.
As we have stated, the Public Defender has identified two arenas in which its performance may have been sub-par: (1) Bonin's pursuit of collateral relief in the California courts and (2) the federal habeas cases from which he now appeals. It will be unnecessary for us to consider counsel's performance in either forum to decide these appeals.
The Public Defender represents that Bonin is likely to raise the incompetence of his state and federal habeas counsel in seeking a remand of the Los Angeles case. But such claims are not properly raised on direct appeal. United States v. Robinson, 967 F.2d 287, 290 (9th Cir.1992). In order to examine whether counsel's performance was egregious enough to amount to a deprivation requiring reversal, it is necessary to develop a record concerning counsel's actions, decisions, and motives during the proceedings in question. It is impossible to develop the requisite record on direct appeal, as this court cannot engage in such a fact-drenched inquiry.
True, if the record on appeal is sufficiently developed to permit review and determination of the issue, or if the legal representation is so inadequate that it obviously violates the Sixth Amendment, we have discretion to consider the claim. Id. Nevertheless, the ineffective-assistance issues supposedly present in this case are not straightforward. Nor does the record disclose any obvious Sixth Amendment violation, since the Sixth Amendment is inapplicable to habeas representation, nor an obvious due process violation, since we have held that the Due Process Clause is not the appropriate vehicle for pursuing ineffective-assistance claims.
Furthermore, many questions remain concerning the Public Defender's decision to delay the presentation of the six new claims. For example, the record before us does not establish whether this delay came about by accident or stratagem. Finally, we observe that present counsel's alleged ineffectiveness was never even raised before the district court in the Los Angeles case as a reason for granting Bonin's motion to amend. We will not consider this issue on which the district court never had an opportunity to rule. See Willard, 812 F.2d at 465.
III
Bonin has no ineffective-assistance claims relevant to the merits of either of these appeals. As such, there is no possibility that a conflict of interest stemming from such claims will arise during the course of our proceedings. The Public Defender's motion for reconsideration of its request to withdraw is, therefore, denied.
MOTION DENIED.
59 F.3d 815
William George Bonin, Petitioner-Appellant,
v.
Arthur Calderon, as Warden of San Quentin State Prison; James Rowland, Director of the California Department of Corrections, Respondents-Appellees.
No. 92-56299, 93-99000
Federal Circuits, 9th Cir.
June 28, 1995
Appeals from the United States District Court for the Central District of California.
Before: WALLACE, Chief Judge, BRUNETTI and KOZINSKI, Circuit Judges.
WALLACE, Chief Judge:
William George Bonin, a California state prisoner awaiting execution at San Quentin State Prison, appeals from the district court's denial of his two petitions for writ of habeas corpus relief under 28 U.S.C. Sec . 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Secs . 1291, 2253. We affirm.
I
* Between 1979 and 1980, Bonin committed a string of shockingly brutal murders in Southern California. As a result of his activities, Bonin became known as the "Freeway Killer." Although the details of each murder vary and need not be repeated here, they shared a number of common features. In general, Bonin would pick up boys between the ages of 12 and 19 years. After engaging in various forms of homosexual activity with the boys, Bonin would murder them.
The victims were usually killed by strangulation. The bodies of the victims exhibited signs that they had been beaten around the face and elsewhere, including the genital area. Marks were found on the wrists and ankles of the victims, indicating that they had been tied. Several of the bodies exhibited other more gruesome injuries. When Bonin was through with the boys, he would then dump their nude bodies along Southern California freeways. Bonin was eventually apprehended, and indictments were brought in both Los Angeles and Orange counties.
A.
Bonin was charged in Los Angeles County with 14 counts of murder, as well as various related noncapital crimes, including robbery, sodomy, and mayhem. Multiple-murder special circumstances were alleged with respect to each murder count. In addition, a felony-murder-robbery special circumstance was alleged with respect to all but three of the murder counts, and a felony-murder-sodomy special circumstance was alleged with respect to one murder count. Two of the murder counts were dismissed before trial.
The evidence of guilt presented at trial was overwhelming. The prosecution demonstrated the remarkably similar features of the murders and their temporal proximity, which indicated that they had all been committed by a single perpetrator. In order to prove that Bonin was the individual that committed the crimes, the prosecution presented testimonial, physical, and scientific evidence.
Experts testified that the bodies of three of the victims bore triskelion-shaped fibers that matched the carpeting in Bonin's van. They also testified that the bodies of three other victims revealed the presence of hair that matched Bonin's. One victim's body also bore a seminal fluid stain that could have been made by Bonin. Moreover, Bonin's van was severely stained with human blood.
In addition to this physical and scientific evidence, the prosecution presented the testimony of two eyewitnesses plus others to whom Bonin had made certain confessions. Gregory Miley, one of Bonin's homosexual partners, testified that he had participated with Bonin in two of the murders. James Munro, another of Bonin's homosexual partners, testified that he had participated with Bonin in one of the murders, after which Bonin told him that he was the "Freeway Killer" and that he had committed about 14 similar murders.
The prosecution also called David Lopez, a television reporter, who testified that Bonin confessed in an interview to killing ten of the twelve boys as well as several others. Two other acquaintances of Bonin, Scott Fraser and Ray Pendleton, testified that Bonin had admitted that he had picked up one of the victims and had killed him in the course of a homosexual encounter. Jailhouse informers testified regarding various confessions made by Bonin while he was incarcerated. Finally, other witnesses testified that after he had been arrested in 1975 for a homosexual attack, Bonin said he would never again leave witnesses to his crimes alive.
The defense attempted to persuade the jury that the prosecution had not met its burden of proof, principally by impeaching the credibility of the various witnesses.
The jury acquitted Bonin of two of the murder charges, and one sodomy and one mayhem charge, but found him guilty of each of the remaining counts. The jury also found to be true all of the special-circumstance allegations except for the felony-murder-sodomy special circumstance.
The penalty phase of the trial was then conducted. After less than one day of deliberation, the jury returned a verdict of death for each of the 10 murder convictions.
B.
After the Los Angeles trial was completed, Bonin was tried in Orange County, California for four murders and related noncapital crimes committed there. The prosecution's case was similar to that presented in the Los Angeles trial, and, as it did in the Los Angeles trial, the defense attacked the credibility of the various witnesses. It also attempted to undermine the credibility of the prosecution's scientific evidence by presenting the testimony of a carpet fiber expert who opined that the fiber samples were too small for accurate comparison to the carpet of the van.
Bonin was convicted of all four murder counts and of robbing each of the victims. The jury found a multiple-murder special circumstance and felony-murder-robbery special circumstance for each of the murders.
At the penalty phase of the trial, the evidence presented in aggravation and in mitigation was quite similar to that presented in the Los Angeles trial. After two days of deliberation, Bonin was sentenced to death for each of the four murders.
C.
On automatic appeal to the California Supreme Court, the Los Angeles and Orange County convictions and death sentences were affirmed. People v. Bonin, 47 Cal.3d 808, 254 Cal.Rptr. 298, 765 P.2d 460 (1989) (Los Angeles); People v. Bonin, 46 Cal.3d 659, 250 Cal.Rptr. 687, 758 P.2d 1217 (1988) (Orange County). The United States Supreme Court denied Bonin's petitions for writ of certiorari with respect to each case, Bonin v. California, 494 U.S. 1039 , 110 S.Ct. 1506, 108 L.Ed.2d 641 (1990) (Los Angeles case); Bonin v. California, 489 U.S. 1091 , 109 S.Ct. 1561, 103 L.Ed.2d 864 (1989) (Orange County case), as well as a petition for rehearing in the Orange County case. Bonin v. California, 493 U.S. 914 , 110 S.Ct. 272, 107 L.Ed.2d 222 (1989).
Bonin filed a state habeas corpus petition challenging his Los Angeles convictions and death sentences, as well as three separate state habeas corpus petitions challenging the Orange County convictions and death sentences. All of Bonin's state habeas corpus petitions were denied by the California Supreme Court.
Bonin filed two habeas corpus petitions under 28 U.S.C. Sec . 2254, one challenging his Los Angeles convictions and death sentences, and another challenging his Orange County convictions and death sentences. The petitions were assigned to the same district judge. The district court conducted three days of evidentiary hearings concerning issues raised by the petitions, and read the entire record of each case, including over 15,000 pages of trial transcripts. In separate published opinions, the district court denied both of Bonin's petitions. Bonin v. Vasquez, 807 F.Supp. 589 (C.D.Cal.1992) (Los Angeles); Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992) (Orange County).
In a published order, Bonin v. Vasquez, 999 F.2d 425 (9th Cir.1993), we denied the motion of Bonin's appointed counsel, the California State Public Defender, to withdraw as attorney of record. We rejected the contention that the defender's own ineffectiveness in its previous handling of the petitions constitute grounds for relief and therefore create a conflict of interest mandating the appointment of new counsel. See Id. D.
In this consolidated appeal, we review the district court's denial of both of Bonin's habeas corpus petitions. Bonin has raised a battery of issues, some alleging violations of his federal constitutional rights at the trials themselves and others alleging errors by the district court in denying the petitions. Bonin makes the following primary arguments:
1. He was denied effective assistance of counsel at both trials because his trial attorney suffered from a conflict of interest;
2. He was denied effective assistance of counsel because his trial attorney failed to investigate adequately and present mitigating evidence at the penalty phases of both trials;
3. He was denied his Fifth, Eighth, and Fourteenth Amendment rights when the prosecution introduced evidence of the Orange County murders at the penalty phase of the Los Angeles trial;
4. He was denied a fair trial because of the Orange County trial court's denial of his motion for change of venue;
5. He was deprived of due process and effective assistance of counsel as a result of the trial court's refusal to allow his second attorney to argue at the penalty phase of the Orange County trial;
6. He was deprived of due process because the Los Angeles trial court refused to suppress the testimony of Munro and Miley;
7. He was deprived of due process in both trials as a result of prosecutorial misconduct;
8. The district court erred by dismissing Bonin's proposed amendments to his habeas corpus petitions; and
9. The penalty juries in both trials were biased in favor of the death penalty due to instructional errors.
In examining these claims, we review de novo the denial of Bonin's petitions for writ of habeas corpus. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993). However, findings of fact made by the district court relevant to the denial of his habeas corpus petitions are reviewed for clear error. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991) (Thomas ). We may affirm on any ground supported by the record, even if it differs from the rationale of the district court. United States v. Washington, 969 F.2d 752, 755 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1945, 123 L.Ed.2d 651 (1993).
To obtain habeas corpus relief, Bonin must demonstrate that his conviction or punishment violates the federal Constitution, a federal statute, or a treaty. 28 U.S.C. Sec . 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975). Because of the limited scope of habeas corpus review, trial errors do not warrant relief unless the errors "had substantial and injurious effect or influence in determining the jury's verdict" such that they deprived Bonin of a fair trial in violation of his right to due process. Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (Brecht ) quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946) (Kotteakos ).
Errors which do not meet this test are deemed harmless. In the exceedingly rare case in which a court finds itself utterly unable to determine whether the error was harmless, but is rather in "grave doubt" about whether the error had substantial and injurious effect on the jury's verdict, the court should not treat the error as harmless. O'Neal v. McAninch, --- U.S. ----, ----, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995). This assumption applies, however, only in the remarkably unusual circumstance where "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Id.
II
Bonin argues that he was denied the effective assistance of counsel at both of his trials because his trial attorney, William Charvet, had a conflict of interest. Bonin asserts that he and Charvet had entered into a literary rights agreement before Charvet became his trial attorney, and that the existence of the literary rights agreement gave Charvet an incentive, subsequent to his retention, to maximize publicity about the case rather than to represent Bonin effectively.
Bonin also alleges that Charvet agreed to represent him in the Los Angeles trial in return for an additional ten percent of the literary rights proceeds, and argues that a conflict of interest existed because Charvet had to pay for investigative costs out of his own pocket. Bonin further asserts that Charvet refused to call a potential witness, Dr. Lunde, at the penalty phase of the Orange County trial, because he feared Dr. Lunde would reveal the literary rights agreement. Bonin maintains that he was never warned of the dangers inherent in Charvet's representation of both his literary interests and his trial defense.
The State paints a different picture. It argues that Bonin and Charvet engaged only in tentative discussions regarding a book transaction that led merely to a letter of intent executed between the parties. The State also insists that Charvet warned Bonin and his family of the potential implications of Charvet's representation of Bonin in both capacities. The State maintains that these discussions had ceased and that any arrangement had been terminated before Charvet began representing Bonin in the Los Angeles trial, and that Bonin signed a release of the letter of intent after Charvet assumed the role of trial counsel. The State further asserts that Charvet warned Bonin that it would not be a good idea to pursue a book deal while the criminal proceedings were pending.
Bonin was originally represented by Earl Hanson, an appointed public defender. While Hanson was preparing for the Los Angeles trial, Bonin contacted Charvet for assistance in having his life story published. Bonin, Charvet, and a writer, Mary Neiswender, reached a tentative understanding concerning the division of the proceeds. As indicated earlier, the State argues that these discussions eventually led to the drafting of an unsigned letter of intent but nothing more. Bonin argues, however, that the parties reached a firm agreement.
At some point, Bonin asked Charvet to take over his defense and Charvet moved to be substituted as trial counsel. Bonin was present in the courtroom throughout the substitution proceedings. Hanson did not oppose the motion and repeatedly emphasized to the court that he had never been Bonin's attorney of choice, that Bonin had in fact requested the appointment of a different attorney immediately after he met Hanson, and that Bonin did not feel that he could talk to Hanson. When asked by the trial court whom he would rather have as his attorney, Bonin said that he wanted to be represented by Charvet, and explained that he did not feel that he could discuss certain subjects with Hanson.
The prosecution objected to the substitution on several grounds, including that Charvet was being compensated, at least in part, with book rights. When the trial court inquired into Charvet's fee arrangement, Charvet declined to divulge his arrangement with Bonin, insisting that if Bonin's only asset was a book right, he could use that asset to secure counsel of his choice. Although the trial court originally suggested that it would deny the motion to substitute so as to avoid further delay, Bonin later made it clear by moving to proceed pro per that he would rather represent himself than continue to be represented by Hanson. Given the hard choice of allowing Bonin to proceed pro per or allowing Charvet to be substituted as trial counsel, the trial court eventually allowed the substitution.
"In a federal habeas action, a claim of ineffective assistance of counsel, and/or of conflict of interest on the part of counsel, presents 'mixed question[s] of fact and law' and receives de novo review." Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994) (Sanders), quoting Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (Strickland ). However, " 'state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of [28 U.S.C.] Sec. 2254(d)'.... Likewise, a federal district court's findings ... are reviewed under the clearly erroneous standard prescribed by Fed.R.Civ.P. 52(a)." Id. at 1451-52, quoting Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, and citing Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870 , 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).
The Sixth Amendment right to counsel includes the right to counsel of undivided loyalty. Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220 (1981). The test for determining whether an alleged conflict of interest has deprived Bonin of his right to counsel in violation of the Sixth Amendment was established by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (Cuyler ). The Court explained that "[i]n order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Id. at 350, 100 S.Ct. at 1719. Although a defendant "need not demonstrate prejudice," he must prove that "counsel actively represented conflicting interests." Id. at 349-50, 100 S.Ct. at 1719.
While Cuyler addressed a conflict of interest generated by multiple representation, we have specifically held that Cuyler applies to conflicts of interest generated by an attorney's acquisition of publication rights relating to his client's trial. United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.1980) (Hearst ), cert. denied, 451 U.S. 938 , 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981). We have also applied the Cuyler test to conflicts resulting from counsel's desire to keep information about himself from the court. United States v. Hoffman, 733 F.2d 596, 601-02 (9th Cir.) (Hoffman ), cert. denied, 469 U.S. 1039 , 105 S.Ct. 521, 83 L.Ed.2d 409 (1984).
Therefore, to obtain habeas corpus relief on the basis of the alleged conflict, Bonin must show: (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his lawyer's performance. Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908 , 109 S.Ct. 260, 102 L.Ed.2d 249 (1988).
In considering Bonin's Orange County petition, the district court held an evidentiary hearing on the conflict issue. Bonin v. Vasquez, 794 F.Supp. at 963. "After listening to the testimony, observing the witnesses, examining the exhibits, and considering the briefs submitted," the district court found that "Bonin and Charvet never had a literary rights agreement." Id. "Instead, the evidence repeatedly demonstrated that the relevant parties--Bonin, Charvet, and Neiswender--expressed interest in such an arrangement, but the expressions of interest never came to fruition." Id. The district court further concluded that in the absence of such an agreement, no actual conflict of interest could have existed. Id. at 964. The district court took judicial notice of this finding in its opinion concerning the Los Angeles case. Bonin v. Vasquez, 807 F.Supp. at 602.
The district court's determination that no literary rights agreement ever came into existence is a finding of fact. We may therefore reject it only if it is clearly erroneous. Sanders, 21 F.3d at 1451; Thomas, 923 F.2d at 1364. There is a substantial amount of evidence supporting each side of this factual dispute, and the evidence does show that Charvet at least pretended to have a literary rights agreement with Bonin for the purpose of obtaining money from his fiancee, Rhodora Hood. However, the district court's finding that no literary rights agreement ever existed is not clearly erroneous. Therefore, Bonin has failed to prove that the alleged agreement created a conflict of interest.
Bonin also has an alternative argument. He contends that even if there was no literary rights agreement, a conflict was created nonetheless by Charvet's "ongoing financial motive" to profit from a prospective literary rights agreement. Bonin points to a number of reasons why Charvet's alleged desire to profit from a possible future literary rights agreement may have come into conflict with Bonin's interests. He asserts that Charvet substituted as retained counsel in the Los Angeles case for fear of losing the alleged prospective literary rights agreement and that by doing so, Charvet deprived him of properly prepared counsel. He also argues that Charvet failed to call Dr. Lunde, a psychiatrist who had evaluated Bonin at Charvet's request, to testify at the Orange County trial because Dr. Lunde had learned about Charvet's dealings with Bonin concerning the alleged literary rights agreement and might disclose them to the court, resulting in the loss of Charvet's appointment or at least "an investigation of Charvet's true motives."
Cuyler not only provides the appropriate standard for analyzing claims of conflict generated by literary rights agreements, Hearst, 638 F.2d at 1193-94, it is also our guide in assessing an argument that an attorney created a conflict by his desire to keep information about himself from the court. Hoffman, 733 F.2d at 601-02. The Court explained in Cuyler that when a defendant's attorney labors under an actual conflict of interest, for example by actively representing codefendants with inconsistent defenses, we are not to "indulge in nice calculations as to the amount of prejudice," but instead we require the defendant to show only that counsel's performance was adversely affected. Cuyler, 446 U.S. at 349, 100 S.Ct. at 1718, quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467-68, 86 L.Ed. 680 (1942). However, in order to show the existence of an actual conflict, Bonin cannot simply show that the interests of the attorney and client might possibly have come into conflict, as "a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel." Id. at 348, 100 S.Ct. at 1718.
Rather, Bonin must show that his interests actually came into direct conflict with those of Charvet. Id. Bonin's contention that Charvet substituted as retained counsel in Los Angeles because of his desire to obtain a prospective literary rights agreement fails to allege the type of actual conflict required by Cuyler. Lawyers almost always undertake representation of clients because of their desire to profit from the representation. The fact that Charvet may have intended to profit not through the typical manner of hourly billing but by gaining publicity by handling a high profile case and by perhaps being included in any literary rights agreement that might be formed in the future does not change the analysis. The fact that an attorney undertakes the representation of a client because of a desire to profit does not by itself create the type of direct "actual" conflict of interest required by Cuyler.
Bonin's argument that Charvet refused to call Dr. Lunde to testify at the Orange County trial to avoid the disclosure of Charvet's dealings with Bonin concerning the prospective literary rights agreement also fails to allege the type of actual conflict required by Cuyler. In Hoffman, we held that an attorney's failure to disclose to the United States District Court for the District of Arizona, before which he was representing a client, his suspension from practice in the State of Florida, which would not necessarily have resulted in his automatic suspension in the District of Arizona, did not create an actual conflict of interest under Cuyler. Hoffman, 733 F.2d at 602.
Thus, an attorney's desire to keep personal information from the court does not invariably create an actual conflict of interest. In this case, Dr. Lunde might not have disclosed any information harmful to or embarrassing to Charvet even if he had been called to testify. Moreover, Charvet would not necessarily have lost his appointment even if Dr. Lunde had disclosed whatever information Bonin told him about the "book deal."
Because Charvet was not necessarily placed in an adversarial position relative to Bonin, he has only succeeded in showing a remote possibility of a conflict and not an actual conflict. See Id. If the types of conflicts alleged by Bonin were to be cognizable under Cuyler, the rule would become hopelessly unworkable. As human beings, attorneys always have interests of their own independent of those of their clients. Where a direct and significant conflict of interest exists between a defendant and his client, it is reasonable to presume that the defendant has been prejudiced as a result.
However, minor or potential conflicts of interest often exist which might theoretically or conceivably affect an attorney's representation, but are not likely to do so. Such "potential" conflicts are insufficient under Cuyler. In the absence of an "actual" conflict which squarely places the interests of the client in opposition to those of the attorney, and is likely to compromise a reasonable attorney's ability to comply with his legal and ethical obligation to represent his client with undivided loyalty, the Cuyler standard cannot be met. If a mere "potential" or "theoretical" conflict does affect an attorney's representation in a particular case, the defendant is not without recourse.
However, he cannot rely on Cuyler and obtain relief merely upon a showing of "adverse effect," but must instead make the showing required by Strickland that counsel's performance was objectively unreasonable and that he suffered prejudice as a result. See Strickland, 466 U.S. at 692-94, 104 S.Ct. at 2067-68. Because Charvet's alleged desire to profit from a prospective literary rights agreement created only a "potential" conflict of interest, Bonin has failed to make the required showing under Cuyler.
Bonin also argues that Charvet had a conflict of interest in the Los Angeles trial because his substitution as retained counsel deprived Bonin of state-funded investigators and expert witnesses, thereby requiring Charvet to pay for any investigators or experts out of his own pocket. This allegation of conflict is also inadequate under Cuyler. As we recently held in Williams v. Calderon, 52 F.3d 1465 (9th Cir.1995) (Williams ), an assertion of conflict based on the fact that "payment for any investigation or psychiatric services could have come from counsel's pocket forc[ing] counsel to choose between [the client's] interests and his own ... is the same theoretical conflict that exists ... in any pro bono or underfunded appointment case." Id. at 1473. While such arrangements create a theoretical conflict of interest, they do not typically create actual conflicts under Cuyler. Nor was an actual conflict created by Charvet's representation of Bonin as retained counsel.
Bonin also raises two related issues concerning the alleged conflict of interest. First, the district court did not hold an evidentiary hearing on the conflict of interest issue in reviewing the Los Angeles petition. Instead, it took judicial notice of its own findings with regard to the Orange County case. Bonin v. Vasquez, 807 F.Supp. at 602. Bonin argues that the district court erred in failing to hold an evidentiary hearing on this issue in his Los Angeles case, and that taking judicial notice of its findings in the Orange County case failed to cure this defect.
The Supreme Court has held that "[w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). However, there is no sound reason why the petitioner should be entitled to two evidentiary hearings on the same issue. There is no indication that two evidentiary hearings conducted by the same federal judge on the same issue are necessary to protect a habeas corpus petitioner's interests. Moreover, any advantage gained by the habeas corpus petitioner certainly would not outweigh the obvious waste of judicial resources this would entail.
We hold that the district court was not required to conduct two separate hearings. In Farrow v. United States, 580 F.2d 1339 (1978), we explained that "as the new Rules Governing Habeas Corpus Cases now make express, it is consistent with the habeas corpus procedure under Sec. 2254 that 'the district judge ... employ a variety of measures in an effort to avoid the need for an evidentiary hearing.' ... Where the judge's own recollection enables him to answer in the negative the 'real question' ... an evidentiary hearing is unnecessary." Id. at 1352-53, quoting Blackledge v. Allison, 431 U.S. 63, 81, 97 S.Ct. 1621, 1633, 52 L.Ed.2d 136 (1977).
Second, Bonin argues that he was denied a full and fair hearing on the conflict of interest issue because the district court refused to allow Dr. Lunde to testify on that issue and refused to allow Bonin to admit State Bar records indicating that Charvet had defrauded clients. A "district court's evidentiary rulings are reviewed for an abuse of discretion and will not be reversed unless the party has been prejudiced." Price v. Seydel, 961 F.2d 1470, 1474 (9th Cir.1992) (Price ). Moreover, a "court may exclude testimony from witnesses not listed in the pretrial witness list." Id. However, in determining whether to admit the testimony of unlisted witnesses, the district court should consider: (1) the possibility of prejudice or surprise to the other party, (2) the ability of the other party to cure the prejudice, (3) the extent to which waiver of the rule against calling unnamed witnesses would disrupt the orderly and efficient trial of the case, and (4) bad faith or willfulness in failing to comply with the court's order. Id.
The district court did not abuse its discretion. The district court refused to allow Dr. Lunde to be called because he was never placed on Bonin's witness list as required by a prior court order. Bonin did not depose Dr. Lunde, did not place him under subpoena, and did not put him on his witness list. This is the type of lack of notice that prejudices the opposing party's ability to respond to testimony or to cross-examine effectively. More importantly, Bonin had already been allowed to call a witness who was not on his witness list and had been warned that he would not be allowed to do so again. Thus, the district court's actions were justified by the need to prevent further disruption of the proceedings and as a sanction for the willful violation of the court's order.
The district court's decision not to admit records of complaints lodged with the State Bar was also not an abuse of discretion. Admittedly, we held in Sanders that an attorney's subsequent disbarment for a course of conduct with other clients in which he exhibited "general incompetence and indifference to the interests of his clients," was probative of whether his failure to investigate the case stemmed from a strategic decision or mere incompetence and indifference. See Sanders, 21 F.3d at 1460.
However, Sanders involved the "rare case" in which counsel's objective incompetence was so severe that the petitioner might have been convicted of murder despite his actual innocence, id. at 1455, and in which the attorney only briefly explained his actions to one other person, id. at 1452, and could not be located to testify at the evidentiary hearing conducted by the district court. Id. at 1451.
In any case, Sanders does not hold that prior instances of misconduct or unrelated complaints to state bar associations should ordinarily be admitted as evidence that an attorney acted incompetently or that otherwise presumptively reasonable decisions were actually made due to general disinterest or other impermissible reasons. Indeed, Sanders did not concern the admissibility of such evidence at all. Although we held such evidence relevant in Sanders, we did not address the standards to be employed by the district court in deciding whether to admit such evidence and the state apparently offered no objection to its admission or use.
Notwithstanding our use of such evidence in the extraordinary situation presented in Sanders, it is clear that a habeas petitioner should not be allowed to transform what should be an inquiry into the reasonableness of counsel's performance at his trial into an general inquisition of defense counsel's record and reputation. Because the essential inquiry is whether the petitioner received objectively reasonable and conflict-free representation, evidence that the attorney may have erred or acted inappropriately in unrelated cases will normally have little, if any, probative value, and may therefore be properly excluded by the district court pursuant to Federal Rule of Evidence 403.
Moreover, because Federal Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," prior acts of misconduct on the part of defense counsel are inadmissible to support a claim that counsel must have acted similarly in a particular case.
Prior acts of dishonesty may have been useful to Bonin as a means of attacking the credibility of Charvet's testimony (taken by means of deposition) concerning his reasons for conducting the trials as he did, and the district court properly authorized Bonin to question Charvet concerning these acts at the evidentiary hearing. However, to the extent Bonin sought admission of the State Bar records themselves to impeach the credibility of Charvet's testimony, the admission of such evidence was prevented by Federal Rule of Evidence 608(b), which prohibits the use of extrinsic evidence to prove specific instances of misconduct for the purpose of attacking a witness's credibility. However Bonin intended to the use the State Bar records, it is clear that the district court did not abuse its discretion by refusing to admit them.
III
Bonin contends that he was deprived of his Sixth Amendment right to effective assistance of counsel because Charvet failed to investigate and present substantial mitigating evidence at the penalty phases of both of his trials. He contends that Charvet should have investigated, found and presented evidence: (1) that Bonin was abandoned and abused as a child, and (2) that Bonin suffered from brain damage. He contends that had the juries been presented with both the childhood mitigation evidence and the evidence of brain damage, they would have sentenced Bonin to life imprisonment rather than death. He also argues that Charvet committed an additional prejudicial error in the Orange County trial by calling Virginia Padgett as a witness.
A.
At the penalty phase of the Los Angeles trial, the prosecution assembled a formidable case on aggravation. It presented Bonin's record of prior adjudicated homosexual offenses: as a result of several homosexual attacks Bonin committed in late 1968 and early 1969, Bonin had pleaded guilty to molestation and forced oral copulation involving 12-year-old Lawrence B., kidnapping and sodomizing 14-year-old William J. and 17-year-old John T., and of forced oral copulation involving 18-year-old Jesus M. These victims testified in detail about the manner in which they were abducted and sexually abused by Bonin.
While each of their experiences was unique, their testimony made it clear that Bonin's actions were cruel and outrageous. They were abducted and handcuffed, forced to orally copulate Bonin and forced to be sodomized by him, and were threatened with death if they told anyone. One victim told of being gagged with his underwear, another was choked to the verge of unconsciousness, and two victims related that Bonin hurt them by applying pressure to their testicles. When Bonin was finally apprehended in 1969, he was driving with a 16-year-old male passenger, and he told police officers that they were lucky that they had caught him because he felt that he might have killed the boy.
After Bonin pleaded guilty to the offenses, he was committed to Atascadero State Hospital as a mentally disordered sex offender amenable to treatment. In 1971, he was declared unamenable to treatment and was sent to prison.
Upon his release from prison in 1974, Bonin resumed his pattern of sexual predation. David M. testified that in 1975, when he was 14 years old, he was abducted, forced to orally copulate and allow himself to be sodomized by Bonin while Bonin held a gun to his neck. Gary E. also testified that Bonin unsuccessfully attempted to abduct him in 1975. After Bonin was arrested for his attack on David M., he told police officers that he would never leave witnesses to his crimes alive again. Bonin was convicted of forcible oral copulation and was again sent to prison, only to be paroled in 1978 and to resume his pattern of homosexual predation with newfound vigor.
The prosecution attempted to prove beyond a reasonable doubt that Bonin was responsible not only for the ten Los Angeles murders and related crimes for which he had already been found guilty, but also for the four Orange County murders and related crimes for which he had not yet been tried.
Police officers, coroners, and other witnesses, with the assistance of vivid photographs, explained the gruesome details of Bonin's carnage. The bodies of the victims all exhibited marks on the wrists and ankles, indicating that they had been tied with rope or wire. Almost all of the victims were killed by strangulation, accomplished by twisting a rope or wire that had been wrapped around their necks. The nude bodies of the victims were then dumped along Southern California freeways.
The prosecution presented the jury with many of the shockingly brutal details of the murders. The jury learned that Bonin forced Darin Kendrick to drink acid and that Bonin stabbed an ice pick three and one-half inches into his ear. They learned that Bonin bragged to a cellmate that he enjoyed sodomizing his victims without lubrication so that their rectums would tear and bleed, and that he would ram a foot and half long object into them.
Several of the victims' rectums exhibited signs of injury. Donald Hyden's anus was not only visibly bruised and bleeding, but so stretched that the coroner opined that a very large object had been thrust into it. Markus Grabs had been stabbed approximately 70 times. James Macabe's skull had been crushed. Miley testified that he and Bonin killed Macabe by laying a tire iron across the boy's neck and pushing down on it until they could hear his neck bones cracking.
The prosecution's aggravation evidence also included that Bonin had no remorse for his actions, but rather took a sick pleasure in them. Munro testified that while they were on their way to dispose of Steven Wells's body, which was beginning to smell bad, he and Bonin stopped to get take-out food. While they ate the food they had purchased with money stolen from Wells, Bonin asked Munro if he wanted to "do another one." Munro also testified that while Bonin was eating, he looked up and laughed: "Thanks Steve, wherever you are." Miley testified that immediately after he and Bonin had disposed of Charles Miranda's body, Bonin said: "I'm horny. Let's go get another one." The prosecution emphasized that Bonin was quite intelligent, with a tested IQ of 120 and had been categorized by the Department of Corrections as being of "superior intelligence."
Reporter David Lopez added another dimension. He testified that Larry Sharp, one of the Orange County victims, was actually a close friend of Bonin. Bonin had taken him to Knott's Berry Farm and once said they were "lovers." Yet when asked why he killed Sharp, Bonin explained: "I just got up one morning and decided I was tired of him. I just got tired of having him around and so I decided that I should kill him." When Lopez asked Bonin what he would be doing if he were still on the street, Bonin remarked: "I'd still be killing. I couldn't stop killing. It got easier with each victim I did."
Charvet vigorously cross-examined the prosecution's witnesses and attempted to impeach their credibility, both in order to discredit some of the most damaging aggravation testimony and to create doubt as to whether Bonin actually was guilty of the yet untried Orange County murders. Charvet effectively attempted to discredit the testimony of David Lopez, who Charvet pointed out took almost no notes during his interviews yet had an uncanny ability to recite with particularity what Bonin supposedly told him. Charvet also used the testimony of Munro and Miley to suggest that they themselves were the culpable individuals, but were testifying against Bonin only in exchange for lenient plea agreements.
Bonin's mother testified that Bonin's father drank excessively and gambled away the family home. She reported that Bonin's father beat her in front of the children, and that the children were also beaten when she was away. Importantly, she testified that Bonin was molested as a child while staying at a detention home. Bonin's mother stated that she and Bonin had a long-standing conflict over Bonin's homosexuality. She observed that Bonin was different when he returned from Vietnam. She further testified that although Bonin got into trouble when at home, he always functioned well in structured environments such as the detention home and a convent in which he lived for three years. She testified that he did "very well" in the convent and that she received "good reports" while he was there.
Charvet called Bonin's older brother Robert whose testimony mirrored that of Bonin's mother: their father drank and gambled excessively, he beat them and their mother, and Bonin's attitude was different when he returned from Vietnam. He repeatedly acknowledged that Bonin always functioned well in controlled environments such as the convent and the detention home. Robert also contradicted some of Munro's testimony. Bonin's younger brother Paul added that he and Bonin frequently picked up hitchhikers and that Bonin never harmed any of them.
Charvet also called Everett Fraser who testified that he was Bonin's friend from 1978 until the time Bonin was arrested. He stated that Bonin had come over to his home about 50 times during this period, that he had brought young men on 12 to 15 of these occasions, and that Fraser had introduced young men to Bonin. He stated that Bonin was never violent in any way. Fraser explained that based on his knowledge of Bonin as a "respectful" person, he was shocked to be advised of the murders.
Charvet also called Kathleen Shuttleworth, a psychologist and Bonin's former preparole counselor. She testified that Bonin seemed to be "very interested in helping people." She described his participation in helping the family of a prisoner in New England. He raised money for their necessities, wrote to state welfare agencies on their behalf, started a fund to buy them a home, and even offered to make the payments himself if necessary. She stated that Bonin should not be sentenced to death because he could help other inmates and would be a useful member of prison society.
Shuttleworth corroborated Bonin's being molested as a young child, and that Bonin was honorably discharged from the Army after Vietnam where he was awarded several medals. Finally, she testified that Bonin sincerely and continuously cried out for help while in prison, at one point even applying for a six-month treatment program conducted by the Veterans Administration.
In his closing argument, Charvet pressed his principal mitigation theory, arguing that although Bonin was dangerous outside of prison and other structured settings, he was capable of functioning very well in a controlled environment such as prison and was actually of benefit to society when incarcerated. He emphasized that Bonin helped others while in prison, and that he was willing to assist or participate in any programs to help find out what caused him and others to commit such crimes. Viewed in this light, Charvet pointed out that nothing would be served by Bonin's death except retribution.
Charvet also attempted to humanize Bonin in the eyes of the jury, by emphasizing that Bonin cried out for help while in prison in the seventies, and argued that Bonin's violent experience in Vietnam was responsible for his subsequent behavior.
B.
The evidence of aggravation at the Orange County trial included every detail presented in the Los Angeles trial plus the fact that Marcus Grabs not only had been stabbed about 70 times all over his body, but his anus was so largely dilated that an item the size of a fist must have been thrust into it. In addition, the jury learned of similar injuries to the anus of Donald Hyden, and were advised that Hyden's body exhibited a puncture wound below the ear, another puncture wound in the scrotum, a burn mark just above the groin, and that his lips and face were bruised. They also learned that Harry Turner had been bitten on the penis and shoulder. In short, with even greater force than in the Los Angeles trial, the prosecution presented what appeared to be an endless list of atrocities committed by Bonin.
The defense's case in mitigation was also similar to that presented in Los Angeles, except that instead of Kathleen Shuttleworth, Charvet called Virginia Padgett, the custodian of records at Atascadero. She proved to be a less favorable witness for Bonin. When asked whether there was any reason other than his homosexuality for his being declared unamenable to treatment at Atascadero, she retorted: "We're not talking about preying upon the mentally retarded or the mentally ill. When you include your sexuality--Homosexuality?"
Although Padgett conceded that there was no evidence that Bonin ever forcibly sodomized or forcibly committed a homosexual act on an inmate in Atascadero, the jury learned that Bonin had engaged in homosexual acts with two retarded patients. The use of Padgett as a defense witness also backfired during her cross-examination when she agreed with the prosecution's statement that "the closest the defendant got to combat in Viet Nam [sic] was when he held a gun to two soldiers' head [sic] and sodomized them?"
Padgett's testimony did establish the mitigating circumstances that had previously been established in the Los Angeles case: that Bonin was decorated in Vietnam, that he was abused as a child, that he had volunteered for experimental treatment programs while at Atascadero, that he was neat, clean, nonviolent, attended therapy groups regularly, and that he did his work willingly in prison. In addition, she explained that Bonin was going to marry a young woman before he went to Vietnam but he returned to discover that she had already married someone else.
C.
The district court held evidentiary hearings concerning Bonin's ineffective assistance of counsel claims. Bonin presented the evidence that he asserts should have been discovered and presented in mitigation at the penalty phases of his trials: (1) "evidence of repeated abandonment during childhood"; (2) "evidence of pervasive physical, sexual and emotional abuse during childhood"; and (3) "evidence of organic brain damage."
The evidence of repeated abandonment during childhood consisted primarily of testimony by Dr. David Foster, an expert on the developmental effects of violence and abuse on children. Dr. Foster opined that Bonin had, as a result of repeated abandonment, not received the nurturing, protection, and behavioral feedback as a child necessary for proper psychological development. The evidence of pervasive physical, sexual and emotional abuse during childhood also came largely from Dr. Foster, who opined that Bonin had suffered such abuse and that it had led "to confusion about the differences between violence and love" as well as "detachment and the use of fantasy and denial and more primitive defenses to protect himself."
The evidence of organic brain damage was primarily the testimony of Dr. Pincus, who testified that Bonin exhibited a "snout reflex" and a "right Babinski reflex" which are indicative of frontal lobe damage. Dr. Pincus also testified that although the psychological manifestations of frontal lobe damage vary, persons with frontal lobe damage are usually impulse driven. Dr. Pincus speculated that it was also possible that Bonin suffered from "organic personality disturbance," which involves behavioral abnormalities caused by brain damage. Dr. Foster opined that some of Bonin's symptoms are consistent with frontal lobe damage, but also suggested that Bonin may suffer from other minor disorders, particularly attention deficit disorder.
Expert witnesses for the State came to opposite conclusions. Dr. Park Elliott Dietz, an expert in forensic psychiatry with expertise in impulse disorders and sexual sadism, testified that Bonin's behavior was not consistent with an inability to control impulses. In addition to pointing out that Bonin has never engaged in impulsive behavior in prison, he explained that the manner in which Bonin committed his crimes, particularly the way in which he lured his victims into his van and disposed of the bodies in remote locations, are "reflective of planning and deliberate actions rather than impulsive behavior."
Dr. Dietz also disagreed with Dr. Pincus's opinion that Bonin suffered from frontal lobe damage. He testified that there was no evidence that Bonin suffered from seizures. Dr. Dietz stated that Bonin's medical records showed that he exhibited no Babinski reflex when examined in 1969 after he had already been incarcerated for kidnapping and forced oral copulation. Dr. Dietz concluded that Bonin's present Babinski reflex and its source could not be the source of his desire to sexually assault young men.
Dr. Dietz also testified that there was a great deal of evidence indicating that Bonin does not presently suffer from frontal lobe damage. Dr. Dietz observed that a Babinski reflex does not necessarily indicate frontal lobe damage. He also explained that other than a snout reflex and Babinski reflex, Bonin did not exhibit other reflexes and behaviors typically associated with frontal lobe damage.
Additionally, Dr. Dietz stated that Dr. Foster's report had repeatedly mischaracterized and exaggerated the evidence he relied on in forming his conclusion that Bonin had been subjected to physical, emotional, and sexual abuse. He concluded that Bonin was a sexual sadist, and that Bonin may also suffer from antisocial personality disorder, but that neither of these conditions impair an individual's free will or ability to control his actions.
A neurologist, Dr. Mark Nuwer, also testified on behalf of the state to refute Bonin's assertion that he suffered from frontal lobe damage. Dr. Nuwer stated that Bonin's magnetic resonance imaging and electroencephalogram tests were normal, and that in the absence of some corroboration through these tests, he would consider a snout reflex a "red herring." He testified that without some other corroboration, a snout reflex in combination with a Babinski reflex "doesn't tell you anything about a diagnoses."
D.
In assessing Bonin's claim that Charvet's failure to present mitigating evidence at the penalty phase of his trials constitutes ineffective assistance of counsel under the Sixth Amendment, we apply Strickland; Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986) (Darden); and Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir.1994) (Wade ) cert. denied, --- U.S. ----, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995), and require Bonin to demonstrate: (1) "that counsel 'made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment,' " and (2) "that 'the deficient performance prejudiced the defense.' " Campbell v. Wood, 18 F.3d 662, 673 (9th Cir.1994) (en banc) (Campbell), quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
In reviewing Charvet's performance, the ultimate question is whether "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. In making this determination, however, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. In doing so, we "will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight." Campbell, 18 F.3d at 673. Rather, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id., quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id.
Bonin is deemed to have suffered "prejudice" as the result of Charvet's performance if he succeeds in demonstrating that "there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Wade, 29 F.3d at 1323, citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Thus, in order to determine whether Charvet's failure to present certain evidence in mitigation might have affected the jury's decision, it is essential to compare the evidence that actually was presented to the jury with the evidence that might have been presented had counsel acted differently.
E.
Almost all of the childhood mitigation evidence offered by Bonin at the evidentiary hearing was utilized by Charvet during both of the trials. The evidence that was not presented by Charvet would have been of little value. That life at the convent was not pleasant, or that Bonin was often dirty and hungry as a child would have added little to the Bonin's case and might actually have distracted the jury from the more potent mitigation evidence.
The only significant evidence presented by Bonin at the evidentiary hearing that Charvet failed to employ was the testimony of experts on the developmental effects of child abuse and neglect. However, while the Constitution requires that a criminal defendant receive effective assistance of counsel, the presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense. Given that such expert testimony would have been of value only to the extent that Bonin could actually show that he had been subject to neglect and abuse, it would have been of slight value at best.
Moreover, it would have opened the door to precisely the type of cross-examination that Charvet sought to avoid by refusing to call psychiatric experts--another recitation of all of Bonin's atrocities for the purpose of determining whether, in the expert's opinion, such behavior is the likely product of such abuse. Charvet's presentation of childhood mitigation evidence was clearly reasonable.
We also conclude that it was reasonable for Charvet not to investigate further and present evidence of brain damage or other psychiatric disorder. Charvet made a tactical decision to rely principally on an "institutional adjustment" mitigation theory. This decision did not foreclose the use of other mitigation evidence. Indeed, Charvet used other mitigation evidence, including Bonin's childhood history and Vietnam experience.
When asked why he decided not to present expert psychiatric testimony at either trial, Charvet responded that he feared that the presentation of psychiatric testimony would "open the door" to allow the prosecution to parade the horrible details of each of the murders before the jury under the guise of asking the psychiatrist or other expert whether Bonin's acts conform to the asserted diagnosis. Charvet explained that although he was willing to risk such cross-examination and rebuttal if there were some significant "objective" evidence of brain disorder upon which he could rely, he was unwilling to do so with anything less.
For the Los Angeles trial, Charvet had information about an examination of Bonin arranged by Hanson, and a copy of the Atascadero records. The Atascadero records contained no indication that Bonin suffered from organic brain damage, neurological disorder, or any psychiatric disorder other than sexual sadism and antisocial personality disorder. The Atascadero records also indicated that Bonin was quite intelligent, with a tested IQ of 120, and that he was neat, clean, well-behaved, nonviolent, and even helpful in prison. Based on this information and his personal knowledge of Bonin, it was reasonable for Charvet to conclude that no significant "objective" evidence of brain disfunction would be forthcoming, and to proceed to trial with his "institutional adjustment" argument and the other available mitigation evidence without also presenting expert psychiatric testimony.
In preparation for the Orange County trial, Charvet had this information and also retained an expert, Dr. Lunde, to determine whether any psychiatric evidence in mitigation was available. After Dr. Lunde examined Bonin and made a preliminary report that he was not turning up anything major, Charvet called off his investigation and subsequently declined to use his testimony at trial. This decision was consistent with his tactical decision not to use such expert testimony unless there was something significant and "objective" to show the jury.
The Supreme Court has explained that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," and that "choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Charvet's decision to employ principally an "institutional adjustment" mitigation theory obviated the need to procure extensive psychiatric evaluations of Bonin.
Given the tactical decision to utilize expert psychiatric testimony only if there was some major "objective" finding upon which to rely, it was reasonable for Charvet to limit his investigation into Bonin's psychiatric condition in preparation for the Los Angeles trial to a review of the Atascadero records and any psychiatric evaluations prepared at Hansen's direction. It was also reasonable for Charvet to discontinue any further investigation into Bonin's psychiatric condition in preparation for the Orange County trial after Dr. Lunde's preliminary report corroborated the Atascadero and other medical records that indicated that Bonin did not suffer from any brain damage, neurological disorder, or other significant "objective" psychiatric condition. Although with hindsight one may question Charvet's tactical decisions, they were certainly reasonable at the time.
Finally, although Padgett was less helpful a witness in Orange County than Shuttleworth had been in Los Angeles, it was not unreasonable for Charvet to call her as a defense witness. Given that Bonin had been sentenced to death in the Los Angeles case despite Shuttleworth's testimony, it was reasonable for Charvet to try something different. That reasonableness is not diminished because Padgett was, in hindsight, not as effective a witness.
Bonin points to a number of cases which he contends require us to reach the opposite result. In Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), vacated and remanded on other grounds, 500 U.S. 901 , 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991), for example, we concluded that an attorney's performance was deficient where his "sole mitigation argument was that Deutscher must have had some sort of mental problem" yet counsel failed to investigate, present, or even consider presenting any such mitigating evidence. Id. at 1159. However, we specifically said that "[c]ounsel made no tactical decision not to investigate Deutscher's possible mental impairment. He simply failed to do so." Id.
Moreover, we went on to explain that "[w]e do not hold that failure to present mitigating evidence at a capital sentencing hearing is always defective performance. In certain cases, counsel might reasonably decide that mitigation evidence would present more problems than it would solve." Id. Indeed, Charvet ruled out the use of expert psychiatric testimony in both the Orange County and Los Angeles trials largely because of the problems it would have caused. Furthermore, Charvet did not use mental defect as a "sole" mitigation argument, but instead relied on evidence of institutional adjustment.
In Evans v. Lewis, 855 F.2d 631 (9th Cir.1988), we also held an attorney's performance deficient for failure to present mitigating evidence at the sentencing hearing in a capital case. But there, "counsel presented no evidence of mitigation" at all, even though the relevant death penalty statute required the sentence of death where at least one aggravating factor and no mitigating factors were presented. Id. at 637 (emphasis in original). Counsel's failure to present any mitigating evidence in that case could not be construed as a trial tactic. Id.
Our recent decision in Wade also does not require a different result. In Wade, counsel not only failed to present "any significant evidence of abuse at the penalty phase," but went on to call forth Wade's alternate personality named "Othello" who challenged the jury to put him to death, and to argue that execution would be an outcome favorable to Wade. Wade, 29 F.3d at 1323-24.
While Evans, Deutscher, and Wade are clearly inapposite here, Darden is closer to the mark. There, the Supreme Court held that trial counsel's failure to present any mitigating evidence at the sentencing hearing in a capital case did not constitute deficient performance under Strickland. Darden, 477 U.S. at 184-87, 106 S.Ct. at 2473-75. The attorney instructed Darden to "plea for mercy," and refrained from presenting any psychiatric or other mitigating testimony. Id. at 186, 106 S.Ct. at 2474.
The Court held this conduct reasonable because the attorney feared that the presentation of such testimony would open the door to more damaging rebuttal testimony. Id. Darden clearly supports our conclusion that Charvet acted reasonably in refusing to employ expert psychiatric testimony because it would have allowed the prosecution during cross-examination and rebuttal to rehash the horrific details of Bonin's crimes.
It is clear that Bonin has failed in his burden to prove that Charvet's decisions fell outside of the wide range of constitutionally adequate representation. Bonin has not overcome the strong presumption required by Strickland that Charvet's conduct was reasonable.
F.
We also conclude that Bonin has failed to establish that he has suffered prejudice as a result of Charvet's allegedly deficient representation. "[I]n cases with overwhelming evidence of guilt, it is especially difficult to show prejudice from a claimed error on the part of trial counsel." United States v. Coleman, 707 F.2d 374, 378 (9th Cir.), cert. denied, 464 U.S. 854 , 104 S.Ct. 171, 78 L.Ed.2d 154 (1983). Similarly, in cases such as this where the aggravating circumstances are overwhelming, it is particularly difficult to show prejudice at sentencing due to the alleged failure to present mitigation evidence.
In this case, the aggravating circumstances were so numerous and so compelling that it is highly improbable that either jury would have returned a sentence of life imprisonment rather than death, even if all of the possible mitigating evidence offered by Bonin at the evidentiary hearing had been presented at his trials.
As we explained earlier, Bonin has demonstrated the existence of very little probative evidence of childhood abuse or neglect other than the very evidence employed by Charvet in both trials. The additional childhood evidence offered by Bonin would clearly not have had any effect on either jury's decision to impose the death penalty.
With regard to the omission of expert psychiatric testimony, the district judge concluded that Bonin "has failed to provide persuasive evidence of brain organicity or other psychiatric or neurological disorder." Bonin v. Vasquez, 807 F.Supp. at 597. He explained that Bonin "did not demonstrate any correlation between Dr. Pincus' findings, which were obtained in late 1991, and petitioner's mental condition at the time of the murders." Id. at 598. The court also found "that Drs. Dietz and Nuwer were more credible than Dr. Pincus," and that the court "cannot help but believe that Dr. Pincus' views on the inappropriateness of the death penalty affect his clinical interpretations in this highly subjective area of medicine." Id.
The district court's finding that Bonin did not prove that he had suffered from brain damage or other significant psychiatric or neurological disorder at the time he committed his crimes is amply supported by the record and is not clearly erroneous. Bonin's evidence was insufficient to show that unlimited investigation by Charvet into Bonin's psychiatric condition would have produced anything more significant than the unpersuasive testimony presented by Drs. Pincus and Foster.
At best, such testimony would only have initiated a battle of experts on which Bonin would have been on the losing side. At worst, it would have distracted jurors from Charvet's "institutional adjustment" theory and the childhood and Vietnam mitigation evidence, reduced Charvet's credibility with the jury, and opened the door to powerful cross-examination and rebuttal.
The aggravating circumstances presented by the prosecution in both trials was overwhelming. Bonin has not proven that the use of expert psychiatrists would likely have changed the outcome, and has therefore failed to meet his burden of proving prejudice.
G.
Bonin also argues that a number of decisions by the district court deprived him of a full and fair evidentiary hearing on his ineffective assistance of counsel claims.
1.
Bonin contends that the district court erred in refusing to provide additional funds for investigative services pursuant to 18 U.S.C. Sec . 3006A(e) and 21 U.S.C. Sec . 848(q)(4)(B). On July 9, 1991, the district court approved Bonin's $2,000 request for investigative work in Connecticut to locate potential childhood mitigation evidence. On October 30, 1991, and November 7, 1991, as the evidentiary hearing was drawing near, Bonin made two additional requests, each seeking an additional $2,000, for further investigative work in Connecticut. On November 22, 1991, the district court denied both requests. The district court also denied Bonin's last minute requests for funds to have witnesses from Connecticut flown to Los Angeles to testify and instead agreed to accept their declarations in lieu of live testimony.
18 U.S.C. Sec . 3006A requires the district court to provide funds to certain persons, including petitioners seeking relief under 28 U.S.C. Sec . 2254, who are "financially unable to obtain investigative, expert, or other services necessary for adequate representation" upon a proper ex parte request. The amount of such funding, however, is limited to $1,000 unless the district court certifies that additional funds are required and the additional funds are approved by the Chief Judge of the circuit.
21 U.S.C. Sec . 848(q)(4)(B) and (q)(9) requires the district court, upon proper ex parte application, to provide indigent habeas corpus petitioners seeking to vacate or set aside a death sentence with funds for investigative, expert or other services that are "reasonably necessary" for the representation of the petitioner if he is financially unable to obtain them himself. Section 848(q)(4)(B) and (q)(9) indicates that the amount of funds that may be provided under section 848(q)(4)(B) and (q)(9) is not, as the government argues, limited by the provisions of 18 U.S.C. Sec . 3006A(e)(3). Instead, the district court is vested with discretion to authorize the expenditure of an amount of funds "reasonably necessary" for the representation of the petitioner. 21 U.S.C. Sec . 848(q)(4)(B) and (q)(9).
The "decision to grant or deny a request for investigative services under Sec. 3006A(e) is committed to the discretion of the trial court, and will be overturned on appeal only for an abuse of discretion." United States v. Smith, 893 F.2d 1573, 1580 (9th Cir.1990) (Smith ). Similarly, the district court's decision to grant or deny funding under 21 U.S.C. Sec . 848(q)(4)(B), and the amount of funding provided under that section, is also reviewed for abuse of discretion. See In re Lindsey, 875 F.2d 1502, 1507 n. 4 (11th Cir.1989).
We have held in non-habeas corpus cases that we will reverse a conviction because of a failure to provide funds under section 3006A only if the defendant establishes that he was deprived of effective assistance of counsel as a result. Thus, the defendant must establish: (1) that reasonably competent retained counsel would require such services for a client who could pay for them, and (2) that the lack of investigation prejudiced the defense. Smith, 893 F.2d at 1580; United States v. Fields, 722 F.2d 549, 551 (9th Cir.1983), cert. denied, 466 U.S. 931 , 104 S.Ct. 1718, 80 L.Ed.2d 189 (1984); United States v. Becerra, 992 F.2d 960, 965 (9th Cir.1993) (Becerra ). Prejudice must be shown by clear and convincing evidence. Becerra, 992 F.2d at 965.
We hold that this standard also governs habeas corpus cases in which funds are requested under section 3006A or section 848(q). We will therefore reverse the district court's denial of Bonin's habeas petitions only if Bonin: (1) establishes that reasonably competent retained counsel would have required the requested services for a habeas petitioner who could pay for them, and (2) demonstrates by clear and convincing evidence that the defense was prejudiced by the lack of further investigation.
Bonin had already secured substantial evidence of his imperfect childhood, including the declarations of several persons who had lived in the same orphanage and who stated that the conditions there were unpleasant. Additional declarations would have been merely redundant and reasonably competent retained counsel would not have required them.
Reasonably competent retained counsel would also not have required these individuals to travel to Los Angeles to attend the evidentiary hearing, as the district court agreed to admit their declarations into evidence. Moreover, Bonin has failed to show prejudice flowing from the denial of funds. Therefore, we conclude that the district court did not abuse its discretion in refusing to allow additional investigative funding.
2.
Bonin also argues that certain evidentiary rulings deprived him of a full and fair evidentiary hearing before the district court. The "district court's evidentiary rulings are reviewed for an abuse of discretion and will not be reversed unless the party has been prejudiced." Price, 961 F.2d at 1474.
Bonin contends that the district court abused its discretion by refusing to hear evidence that Charvet was abusing drugs before and during the trials. Because we use an objective standard to evaluate counsel's competence, once an attorney's conduct is shown to be objectively reasonable, it becomes unnecessary to inquire into the source of the attorney's alleged shortcomings. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071.
Because we conclude, as the district court did, that Charvet's performance did not fall below the standard of objective reasonableness, it is irrelevant whether Charvet used drugs. See Berry v. King, 765 F.2d 451, 454 (5th Cir.1985) (drug use by attorney not relevant in and of itself to an ineffective assistance claim; relevant inquiry is whether counsel's performance was deficient and caused prejudice), cert. denied, 476 U.S. 1164 , 106 S.Ct. 2290, 90 L.Ed.2d 731 (1986); McDougall v. Dixon, 921 F.2d 518, 535 (4th Cir.1990) ("appellant must show that the medication affected his attorney in such a way that he could not and did not render adequate legal assistance during the trial"), cert. denied, 501 U.S. 1223 , 111 S.Ct. 2840, 115 L.Ed.2d 1009 (1991); see also Smith v. Ylst, 826 F.2d 872, 876 (9th Cir.1987) (attorney's mental illness does not constitute ineffective assistance per se; court must evaluate attorney's actual conduct of trial in light of allegations of mental illness), cert. denied, 488 U.S. 829 , 109 S.Ct. 83, 102 L.Ed.2d 59 (1988). Because evidence of drug use is not relevant in and of itself, the district court did not abuse its discretion in refusing to admit evidence that Charvet used drugs.
Bonin also suggests that the district court abused its discretion by refusing to allow an expert on juror psychology (a "Strickland expert") to testify concerning the likelihood that Bonin suffered prejudice as a result of Charvet's alleged errors and omissions. A district court's decision whether to allow expert testimony is reviewed for abuse of discretion. United States v. Rahm, 993 F.2d 1405, 1409-10 (9th Cir.1993).
Federal Rule of Evidence 702 permits expert testimony if "[it] will assist the trier of fact." It was reasonable for the district judge to conclude that a juror psychology expert would not be helpful to him. The district judge is himself qualified to assess the likely responses of a jury to certain evidence and is also qualified to understand the legal analysis required by Strickland. There was no abuse of discretion.
Bonin further contends that the district court abused its discretion by refusing to allow Bonin to attack Charvet's credibility by introducing State Bar Association records that allegedly indicate that Charvet committed bad acts against his clients. As we explained earlier in part II with respect to Bonin's Cuyler claim, the district court did not abuse its discretion. See supra at 828 - 829.
3.
Bonin asserts that the district court abused its discretion by refusing to conduct an evidentiary hearing on the issue of whether Charvet was biased against him. Because Bonin failed to allege facts which, if proved, would entitle him to relief, the district court was not required to hold an evidentiary hearing. Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir.1992). The only fact alleged in support of Bonin's charge that Charvet was biased against him is an off-the-record expression of ill feeling toward Bonin during an in-chambers conference. Bonin does not even allege that he was prejudiced as a result. Such a statement did not constitute a breakdown of the adversarial process or deny Bonin effective assistance of counsel.
Bonin cites Frazer v. United States, 18 F.3d 778 (9th Cir.1994) (Frazer ), but Frazer is clearly inapplicable. Frazer testified that his attorney called him a "stupid nigger son of a bitch and said he hopes I get life." Id. at 780. Worse yet, the attorney threatened to "be very ineffective" if his client insisted on going to trial. Id. While the facts of Frazer supported the need for an evidentiary hearing to determine if counsel breached his duty of loyalty and denied his client effective assistance of counsel, the same cannot be said merely because an attorney expresses dislike for a client. If being liked by one's lawyer were a sine qua non of effective representation, some clients might never be effectively represented. Thus, the district court did not abuse its discretion by refusing to hold an evidentiary hearing on this issue.
IV
Bonin contends that the prosecution's presentation of Bonin's Orange County murders, for which he had not yet been tried, at the penalty phase of the Los Angeles trial violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. At the penalty phase of Bonin's Los Angeles trial, the court admitted, over Bonin's objection, evidence of the four Orange County murders. The admission of this evidence was pursuant to California Penal Code Sec. 190.3(b), which permits the introduction of evidence of past violent criminal activity at the penalty phase of a capital case, even if the defendant has not been tried for the crimes. People v. Phillips, 41 Cal.3d 29, 67-72, 222 Cal.Rptr. 127, 711 P.2d 423 (1985).
Bonin argues that when the Orange County murders were offered to the jury as an aggravating factor, he was presented with a Hobson's choice--he could either admit his guilt to the Orange County murders and testify about any mitigating circumstances surrounding them or he could remain silent. If he admitted his guilt in order to testify about mitigating circumstances, however, his admission could then be used against him at the guilt phase of the Orange County trial.
If he remained silent, he would preserve his ability to defend on the issue of guilt in the Orange County trial, but would forfeit his right to present all available mitigating evidence in the Los Angeles trial. Thus, he argues that by admitting evidence of crimes for which he was yet to be tried, the trial court effectively forced him to forgo either his Fifth Amendment right against self-incrimination or his Eighth Amendment right to present all available mitigating evidence in order to avoid the death penalty.
In rejecting this argument, both the district court and the California Supreme Court relied on McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated, 408 U.S. 941 , 942, 92 S.Ct. 2873, 2873, 33 L.Ed.2d 765 (1972). In McGautha, the Supreme Court upheld the use of unitary trials in capital cases. Id. at 220. In challenging the constitutionality of unitary capital trials, the defendant used the same argument that Bonin now makes concerning the admission of evidence of the Orange County murders. The defendant argued that unitary trials are unconstitutional because they require the defendant either to remain silent and forbear the opportunity to testify about evidence in mitigation or to risk having his testimony on the issue of punishment used against him on the issue of guilt. Id. at 210-11, 213.
The Supreme Court rejected this argument, explaining that "[t]he criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow.... Although a defendant may have a right, even of constitutional dimension, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." Id. at 213 (citation omitted). The Court further stated that, "[t]he threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved." Id. After reviewing the policies of both the Fifth Amendment privilege against self-incrimination and the right to present evidence in mitigation, the Court concluded that the policies of neither right were significantly implicated by forcing the defendant to choose between remaining silent on both issues and testifying with respect to both issues. Id. at 213-20.
McGautha itself is not binding because it was later vacated, 408 U.S. at 941-42, 92 S.Ct. at 2873 (1972), in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Eighth Amendment requires that discretion of sentencing jury be limited by appropriate guidelines to prevent arbitrary infliction of death sentence). Furman, however, neither addressed the constitutionality of unitary trials nor in any other way undercut the rationale of McGautha that a defendant can be forced to choose between testifying in mitigation and remaining silent on the issue of guilt.
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court elaborated on Furman, stating that while certain Eighth Amendment "concerns are best met by a system that provides for a bifurcated proceeding ... [w]e do not intend to suggest that only the above-described procedures would be permissible under Furman." Id. at 195, 96 S.Ct. at 2935. Thus, the Court in Gregg made it clear that unitary trials in capital cases are constitutionally permissible so long as procedures are employed to guide adequately the discretion of the sentencing authority. If unitary trials are constitutionally permissible, as Gregg suggests, the rationale of the Court in McGautha must retain vitality.
Further evidence that the McGautha reasoning remains sound is that the very passage we have quoted has continued to be cited both by this court and by the Supreme Court. See Newton v. Rumery, 480 U.S. 386, 393-94, 107 S.Ct. 1187, 1192, 94 L.Ed.2d 405 (1987); Corbitt v. New Jersey, 439 U.S. 212, 218-19 n. 8, 99 S.Ct. 492, 497 n. 8, 58 L.Ed.2d 466 (1978); United States v. Yarbrough, 852 F.2d 1522, 1529 (9th Cir.) (Yarbrough ), cert. denied, 488 U.S. 866 , 109 S.Ct. 171, 102 L.Ed.2d 140 (1988).
Finally, in Yarbrough we expressly adopted the reasoning of McGautha in holding that a defendant in federal court is not deprived of his Fifth Amendment privilege against self-incrimination simply because he faces prosecution in state court on related charges. Yarbrough, 852 F.2d at 1529-30.
A defendant in such a situation faces precisely the same dilemma that Bonin faced when evidence of the Orange County murders was introduced at the penalty phase of the Los Angeles trial, yet we concluded that the policies of the Fifth Amendment guarantee against self-incrimination were not significantly implicated by putting the defendant to the choice of testifying in one trial, at the risk of his testimony being used against him in the second trial, or remaining silent in both. Id. at 1529. We conclude that the reasoning of Yarbrough and McGautha is controlling, and that Bonin was not deprived either of his Fifth Amendment right against self-incrimination, or his Eighth Amendment or due process rights to present evidence in mitigation.
V
Bonin asserts that the denial of his motion for change of venue from Orange County deprived him of a fair trial. He asserts that pretrial publicity was so extensive that a fair jury could not be secured. Bonin did not provide us with any exhibits that were before the state trial court.
In Austad v. Risley, 761 F.2d 1348 (9th Cir.) (en banc), cert. denied, 474 U.S. 856 , 106 S.Ct. 163, 88 L.Ed.2d 135 (1985), we made it clear that the district court does not have a duty to request and review the state court record sua sponte, absent a showing that the petitioner is unable to produce it. Id. at 1351. We further held that "[i]f an applicant who is able fails to produce the record, then he fails to carry his burden of establishing that the state court's factual determination is not supported by the record." Id. at 1353.
The state trial court found that Bonin could receive a fair trial in Orange County. This finding was affirmed by the California Supreme Court. People v. Bonin, 46 Cal.3d at 677, 250 Cal.Rptr. 687, 758 P.2d 1217. In Chaney v. Lewis, 801 F.2d 1191 (9th Cir.1986), cert. denied, 481 U.S. 1023 , 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987), we held that "[a] determination of a juror's partiality or bias and the extent to which pretrial publicity was prejudicial are factual determinations to which Sec. 2254(d)'s presumption of correctness applies." Id. at 1194.
The district court therefore properly treated this determination as a finding of fact entitled to a presumption of correctness pursuant to 28 U.S.C. Sec . 2254(d). See Bonin v. Vasquez, 794 F.Supp. at 974. Since Bonin failed to produce any of the exhibits presented to the state trial court and failed to raise any new facts, the district court properly concluded, in accord with Austad, that Bonin had failed to overcome "the presumption of correctness that attaches to the state court's decision." Id.
VI
Bonin contends that he was denied effective assistance of counsel and due process because the judge in the Orange County case refused to allow his second attorney, Tracy Stewart, to make a closing argument at the penalty phase of the trial. After the close of the penalty phase evidence, the prosecutor presented his argument followed by Charvet's argument. The prosecutor then stated that he would not argue in rebuttal. A discussion then ensued, the relevant portion of which is provided in People v. Bonin, 46 Cal.3d at 691-93, 250 Cal.Rptr. 687, 758 P.2d 1217.
The trial court was concerned because the defense team had indicated earlier that both Charvet and his associate would argue. In response, the court held that the two counsel would be allowed to argue only if they proceeded alternately, one giving a closing argument and the other providing surrebuttal. Since there would be no rebuttal, there was no opportunity for Stewart to argue in surrebuttal. The prosecutor repeatedly protested that he had "told everybody" that he would make no rebuttal argument, and Charvet responded: "He told us, but I didn't believe him." Because the trial court concluded that Stewart was allowed to argue only in surrebuttal, he did not allow further argument and proceeded to instruct the jury.
California Penal Code Sec. 1095 provides: "If the offense is punishable with death, two counsel on each side may argue the cause." In addressing this claim in Bonin's direct appeal, the California Supreme Court held that section 1095 does not require the two members of the defense team to proceed alternately, and that the Orange County court therefore erred. Id. at 693-95, 250 Cal.Rptr. 687, 758 P.2d 1217. The California Supreme Court went on, however, to explain that section 1095 does not create an absolute right to have two counsel argue apart from the more general guarantees of the Sixth Amendment and the Due Process Clause that counsel have a full and fair opportunity to participate in the adversary process. Id. at 694-95, 250 Cal.Rptr. 687, 758 P.2d 1217.
The court pointed out that Charvet had presented a "full and unrestricted" argument and had indicated that his closing argument was sufficient and that further argument by Stewart was dispensable. Id. at 695, 250 Cal.Rptr. 687, 758 P.2d 1217. The California Supreme Court concluded that Bonin received a complete and constitutionally adequate closing argument, and that "under any standard of prejudice the error must be deemed harmless." Id. at 695, 250 Cal.Rptr. 687, 758 P.2d 1217.
Because the California Supreme Court is the final expositor of California law, we must accept its conclusion that the judge at the Orange County trial violated section 1095 by erroneously refusing to allow Stewart to argue. However, the violation of Bonin's state law right does not warrant habeas corpus relief. The Supreme Court has frequently held that habeas corpus relief is not available to remedy state law errors, and that "a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62 , 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991).
Bonin argues that the California statute which gives the defendant in a capital case the right to have two defense attorneys argue in his behalf creates a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. A protected liberty interest may be created by state law, but only in limited circumstances. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-63, 109 S.Ct. 1904, 1908-10, 104 L.Ed.2d 506 (1989) (Thompson ); Dix v. County of Shasta, 963 F.2d 1296 (9th Cir.1992) (Dix ). In order to create a liberty interest protected by due process, the state law must contain: (1) "substantive predicates" governing official decisionmaking, and (2) "explicitly mandatory language" specifying the outcome that must be reached if the substantive predicates have been met. Thompson, 490 U.S. at 462-63, 109 S.Ct. at 1910; Dix, 963 F.2d at 1299.
In order to contain the requisite "substantive predicates," the state law at issue "must provide more than merely procedure; it must protect some substantive end." Dix, 963 F.2d at 1299. Indeed, we have drawn a careful distinction between procedural protections created by state law and the substantive liberty interests those procedures are meant to protect. Moran v. Godinez, 40 F.3d 1567, 1574 (9th Cir.1994); Smith v. Sumner, 994 F.2d 1401, 1406 (9th Cir.1993).
The denial of state-created procedural rights is not cognizable on habeas corpus review unless there is a deprivation of a substantive right protected by the Constitution. See Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983). "The state may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right." Id. (footnote omitted).
Section 1095 clearly does not create a protected liberty interest. To the contrary, it merely creates a state procedural right which is itself designed to facilitate the protection of more fundamental substantive rights such as the rights to effective assistance of counsel and a reliable verdict. It contains neither "substantive predicates" protecting a substantive end nor "explicitly mandatory language" requiring a particular result if the "substantive predicates" are met. Bonin's contention that he was deprived of a state-created liberty interest in having two attorneys make closing arguments must therefore fail.
It is clear that a criminal defendant has a constitutional right to effective representation, including a right to make a closing argument. Herring v. New York, 422 U.S. 853, 858, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593 (1975). But there is certainly no federal constitutional right to have two attorneys make closing arguments even in death penalty cases. See id. at 862, 95 S.Ct. at 2555 (trial court has great latitude to regulate argument).
Preventing Stewart from making a closing summation clearly did not deprive Bonin of a fair trial or deprive him of effective assistance of counsel. Charvet's closing argument was not limited in any way by the trial court. There is no evidence that he refrained from making any arguments in reliance on his expectation that Stewart would also be allowed to speak. Indeed, the available evidence suggests the contrary. Moreover, from an objective perspective, Charvet's closing remarks were more than constitutionally adequate. Bonin has failed to demonstrate any legitimate ground for granting habeas corpus relief due to the Orange County trial court's refusal to allow Stewart to make an additional closing argument.
VII
Bonin argues that the Los Angeles trial court erred in not suppressing the testimony of Munro and Miley. The basic thrust of Bonin's contention is that the Los Angeles prosecutor broke his promise not to use certain statements Bonin made in a plea bargain meeting, because they were used to help convince Munro and Miley to testify against him.
We do not address this contention because it is procedurally barred. The California Supreme Court concluded that Bonin had failed to raise properly any objection during his trial. People v. Bonin, 47 Cal.3d at 845, 254 Cal.Rptr. 298, 765 P.2d 460. As the Supreme Court has explained:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722 , 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Bonin has not demonstrated cause for failing to object at trial. He has also failed to demonstrate actual prejudice or that a fundamental miscarriage of justice will result if this claim is barred. Thus, we do not address it.
VIII
Bonin maintains that prosecutorial misconduct deprived him of due process. He first complains about the prosecutor's use of David Lopez's testimony. During the guilt phase of the Orange County trial, the prosecution called Lopez, a television reporter, to testify about certain confessions made by Bonin during an interview. Bonin was being tried for only four murders in Orange County. Before Lopez testified, Charvet asked the trial judge about the scope of the testimony that would be permitted. He was concerned about prejudice resulting if Lopez testified, as he had in Los Angeles, that Bonin admitted killing over 20 people. The prosecutor then made an offer of proof, explaining that he "didn't intend to elicit any conversations between Bonin and Lopez with respect to murders other than Fox, Rugh, Barker, Sharp, Wells and Miranda."
The prosecutor explained that Bonin admitted killing all of those individuals by name except for Fox, but that he would show that Fox's name was on a list of victims that Bonin admitted killing. The trial court clearly authorized the prosecutor to question Lopez about the six victims he named. Four of the individuals were the Orange County victims and the other two were victims killed in the presence of Munro and Miley. The court indicated reluctance to allow the prosecutor to discuss the other 17 names on the list, but never expressly ruled whether the prosecution could ask how many names were on the list and whether Bonin admitted killing all of them.
In order to get Bonin's confession to the Fox killing into evidence, the prosecutor asked Lopez how many victims were on the list. Over Charvet's objection, Lopez stated that 21 names were on the list. Lopez then testified that Fox's name was among them. Then the prosecutor asked whether Bonin had admitted killing the people on the list. Again, over Charvet's objection, Lopez testified that Bonin admitted killing all of the victims on the list except Lundgren. Charvet protested, arguing that the statements were prejudicial. A motion for a mistrial was denied as was a motion to strike the testimony. The trial court indicated that it was allowing the testimony because it was the only way to establish that Bonin admitted killing Fox.
To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of Bonin's right to a fair trial. Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3108-09, 97 L.Ed.2d 618 (1987). Although Bonin frames this argument in terms of prosecutorial misconduct, the issue is really one of alleged trial error because the trial court allowed the testimony. Even if the court's earlier statements could be interpreted as prohibiting such questioning, the court's decision to overrule Charvet's objections and subsequent refusal to strike indicate that the court made a conscious decision to permit the testimony. We conclude there was no error, but even if there were, we may grant habeas corpus relief only if the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, --- U.S. at ----, 113 S.Ct. at 1714, quoting Kotteakos, 328 U.S. at 766, 66 S.Ct. at 1248-49.
Applying this standard, we conclude that Bonin is not entitled to habeas corpus relief. The evidence of Bonin's guilt was overwhelming. The brief revelation that Bonin admitted killing all the boys on the list rather than only six did not deprive him of a fair trial or have a substantial and injurious effect on the jury's verdict.
Second, Bonin contends that reversal is required because the prosecutor knowingly used perjured testimony. Barnes, a jailhouse informant who had been incarcerated with Bonin in the Los Angeles County jail, testified at both trials that Bonin confessed to killing some boys. Barnes's testimony departed somewhat from the rest of the evidence against Bonin in that Barnes was the only witness who connected Bonin with motorcycles and said that Bonin would talk about "a glass of snot with ice cubes in it."
Barnes was also unable to recall any names that were mentioned by Bonin or other salient details. The prosecutors in both cases placed very little weight on Barnes's testimony. It was referred to only briefly during closing arguments in the Los Angeles trial and was not mentioned in either the guilt or penalty phase arguments of the Orange County case.
Six years later, Barnes signed a declaration stating that he had merely memorized a script presented to him by two police officers and two other persons in return for a promise that they would recommend a lesser sentence in his own case, that he discussed the matter with his attorney who instructed him to accept the arrangement, and that the officers gave him hand signals during the trials to help him answer questions in the manner they desired. Barnes signed the declaration in the name of Thomas Allen Porter. It is unclear which is his real name and which is his alias. Bonin asserts that the declaration is true and that the prosecutors knowingly used perjured testimony.
If a prosecutor knowingly uses perjured testimony or knowingly fails to disclose that testimony is false, the conviction must be set aside if "there is any reasonable likelihood that the false testimony could have affected the jury verdict." United States v. Endicott, 869 F.2d 452, 455 (9th Cir.1989), citing United States v. Bagley, 473 U.S. 667, 678-80, 105 S.Ct. 3375, 3381-83, 87 L.Ed.2d 481 (1985).
Barnes's declaration is the only evidence offered to support a finding that the prosecutors knowingly introduced perjured testimony. The declaration, however, is patently unbelievable. It asserts that several police officers, prosecutors, a judge, and Barnes's attorney all took part in this conspiracy. It asserts that they offered to fix any lie detector test and that they would give him hand signals at trial. The declaration is at best a curious fiction signed by a criminal incarcerated at Folsom State Prison with no reason not to lie.
But even if the declaration were true, there is no reasonable likelihood that the testimony affected the jury's verdict. Four other witnesses testified that Bonin had admitted killing young males, and Barnes's testimony was hardly used by the prosecution in either trial. Considering that there was overwhelming evidence of Bonin's guilt and that Barnes's testimony constituted but a very small fraction of the total evidence against him, it is not reasonably likely that the alleged perjured testimony affected the jury's verdict.
IX
Bonin contends that the district court abused its discretion by denying his May 15, 1991, motion to amend the Orange County petition. Bonin filed his Orange County petition on July 11, 1990. On March 13, 1991, over eight months later, the State filed a motion to compel Bonin to identify all possible claims or waive them. See Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied, 493 U.S. 906 , 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). On April 19, 1991, the district court denied the motion. It explained that there was no longer any risk of piecemeal litigation because the Supreme Court had just decided McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), which held that claims raised in subsequent habeas corpus petitions would be barred absent a showing of cause and prejudice. In its order denying the motion to compel, however, the Court stated that it would "allow [Bonin] until May 13, 1991 ... to file an amended petition for either or both ... cases to include any additional claims upon which the petitioner alleges relief may be granted." The court subsequently extended the deadline to file any additional documents including "an amended petition" to May 15.
On May 15, Bonin filed a "First Amendment" to his petition adding eight "new" claims. The court subsequently refused to allow Bonin to add the additional claims. The district judge explained that although he had granted Bonin leave to amend his petition, he did so only because of the possibility that any claims discovered after the filing of the first petition might be barred, pursuant to McCleskey, in any subsequent habeas petition.
The district judge stated that all of the "new" claims presented in the First Amendment could have been raised when Bonin initially filed his petition. He then went on to treat Bonin's proposed amendments as a second habeas petition, concluded that the new claims constituted an abuse of the writ, and dismissed the proposed amendments citing McCleskey and Rule 9(b) of the Rules Governing Section 2254 Cases.
Bonin filed a motion to reconsider, and the district court issued an eight-page order denying the motion which carefully explained the district court's reasons. The district judge stated that in issuing his initial order allowing Bonin leave to amend his petition, he had expected that Bonin would amend only with claims discovered since the filing of his petition. He assumed this based on Bonin's opposition to the State's Neuschafer motion and Bonin's representations to the court that his petition was "professionally and capably prepared and ... fully comprehensive," and that he was not keeping claims "in his hip pocket."
The district court addressed McCleskey briefly, but did so just to explain that it had denied the government's Neuschafer motion and granted Bonin leave to amend only to ensure that Bonin had an opportunity to raise any new claims that he had discovered since the filing of the petition which might later be precluded under McCleskey if not then raised.
The district court then explained that four of the proposed amendments (claims V, W, X, and Y) arose out of facts that had already been raised in the Los Angeles petition--Bonin's decision to provide the prosecution with a taped confession for purposes of plea bargaining. The court pointed out that Bonin raised this issue in his automatic appeal in the Los Angeles case and was therefore clearly aware of the issue, yet just two months before attempting to add the amendments represented to the court that the petition was full and complete and that he was not keeping any claims in his hip pocket.
The court explained that claims AA, CC, and two of the three parts of BB merely restated arguments and relied on facts already raised in the petition. Finally, it explained that only claim Z and one part of claim BB were unrelated to claims already raised in the petition. However, it went on to demonstrate that the claims were patently frivolous. In summation, the court reiterated that Bonin's federal habeas corpus counsel also represented him in his automatic appeals and state habeas proceedings (in both the Los Angeles and Orange County cases), and that counsel attempted to raise these eight "old" claims only two months after assuring the court that it had no other claims to raise.
Bonin argues that the district judge abused his discretion by refusing to allow the amendments because Rule 15(a) requires that amendments be freely allowed. Rule 15(a) allows a party to amend his complaint by leave of the court at any time, and such leave "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The denial of a motion for leave to amend pursuant to Rule 15(a) is reviewed "for abuse of discretion and in light of the strong public policy permitting amendment." Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993) (Outdoor Systems ). In doing so, we often consider: bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings. Western Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 74, 121 L.Ed.2d 39 (1992).
However, each is not given equal weight. Futility of amendment can, by itself, justify the denial of a motion for leave to amend. Thus, in Outdoor Systems, 997 F.2d at 614, we affirmed the district court's denial of a motion for leave to amend because the proffered amendments would be nothing more than an exercise in futility. Additionally, we have held that a district court does not abuse its discretion in denying a motion to amend where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally. Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir.1990).
In the present case, four of the amended claims relate to Bonin's decision to speak to the Los Angeles prosecutors in furtherance of a potential plea bargain. These facts were placed in issue in Bonin's Los Angeles petition as well as in his automatic appeal of the Los Angeles case. These theories should have been pleaded in his petition originally. The remainder of Bonin's proposed amendments are either duplicative of existing claims or patently frivolous, or both. Amending the petition to include them would be futile.
Bonin also argues that we must remand these claims to the district court because the district court did not properly exercise its discretion under Rule 15 because it incorrectly believed that the strict "cause and prejudice" standard of McCleskey applied. The district court is deemed to have abused its discretion if it applies incorrect legal standards. See, e.g., Zepeda v. INS, 753 F.2d 719 (9th Cir.1983) (motion for preliminary injunction).
The district court's initial order raised the McCleskey issue, but its subsequent thorough and well-reasoned order denying the motion to reconsider makes it clear that it was exercising its discretion and that its decision was guided by appropriate considerations. The district judge did state once in his denial of the motion to reconsider that Bonin was "abusing the writ." This incidental reference to the doctrine of abuse of the writ, however, does not support the conclusion that the district court believed that it was forced to dismiss the amendments under McCleskey. We conclude that the district court did not abuse its discretion in denying Bonin's May 15, 1991, motion to amend the Orange County petition.
Bonin also contends that the district court abused its discretion by denying his December 23, 1991, motion to amend the Los Angeles petition. As explained earlier, the district court granted Bonin until May 15, 1991, to amend either petition. Bonin's December 23, 1991, motion to amend the Los Angeles petition was therefore seven months late. Moreover, the claims raised were identical to the ones raised in Bonin's May 15, 1991, motion to amend the Orange County petition.
In denying the motion, the district court explained that the motion was untimely and expressly adopted the reasoning contained in its December 23, 1991, denial of Bonin's motion to reconsider its May 23, 1991, order dismissing Bonin's proposed amendments to the Orange County petition. Because the motion to amend was untimely and because the district court's December 23, 1991, order denying Bonin's motion to reconsider was based on appropriate considerations, we conclude that the district judge did not abuse his discretion.
Bonin also asserts that the district court abused its discretion by denying his August 18, 1992, motion to amend the Los Angeles petition. Bonin v. Vasquez, 807 F.Supp. 586 (C.D.Cal.1992). Because final judgment had not yet been entered in the Los Angeles case, this motion was correctly treated as an untimely Rule 15(a) motion to amend the petition. Bonin v. Vasquez, 999 F.2d at 427, 431. Although the district court opined that Bonin's August 18, 1992, motion to amend the Los Angeles petition constituted "abuse of the writ," it did not in any way rely on McCleskey. Id. at 431. The district court did not abuse its discretion in denying this motion. As the district court explained, Bonin brought this motion "long after the work in the case had concluded and seven months after the Court took the petition under submission." Bonin v. Vasquez, 807 F.Supp. at 587.
Moreover, because Bonin "brought the motion only after the Court denied the petition in his Orange County case," the district court correctly found that Bonin had acted in bad faith by not proposing the amendments earlier. Id. The district court also pointed out that Bonin had already been granted an opportunity to amend the petition, and had failed to do so despite the fact that the claims were apparent given the briefest of investigation. Id. Although there is a strong policy of liberally allowing amendments pursuant to Rule 15(a), and this policy is of no less significance in section 2254 cases in which McCleskey will bar subsequent petitions, we conclude that the district court did not abuse its discretion. Bonin's belated and bad faith efforts to amend the Los Angeles petition did amount to an abuse of the writ.
Finally, Bonin challenges the district court's denial of his August 18, 1992, motion to amend the Orange County petition. In our previous order, we held that because final judgment had already been entered in the Orange County case, the district court properly construed this motion as a request for relief from the judgment pursuant to Rule 60(b) and correctly required Bonin to comply with the requirements of McCleskey. Bonin v. Vasquez, 999 F.2d at 427-28.
In a "Motion and Request to Correct Prior Opinion and for Submission of Issue VIII for Decision Under Correct Standard of Review," Bonin now contends that the judgment was never entered on a separate document as required by Federal Rule of Civil Procedure 58, and that the district court therefore erred by treating the motion as a Rule 60(b) motion for relief from judgment rather than a Rule 15 motion to amend.
To the extent that Bonin's motion requests correction of factual statements contained in our previous opinion, it is procedurally barred due to his failure to seek such corrections by means of a timely petition for rehearing in accordance with Federal Rule of Appellate Procedure 40.
We have held that the period for filing a notice of appeal does not begin until judgment has been entered on a separate document in compliance with Rule 58. See Allah v. Superior Court, 871 F.2d 887, 890 (9th Cir.1989). We have also held that the time limit for filing a Rule 60(b) motion also does not begin to run until judgment has been entered on a separate document. See Carter v. Beverly Hills Sav. & Loan Ass'n, 884 F.2d 1186, 1188-90 (9th Cir.1989), cert. denied, 497 U.S. 1024 , 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990).
However, the Supreme Court has made it clear that the sole purpose for the separate document requirement is to clarify when the time for appeal begins to run, and that Rule 58's technical separate judgment requirement is not jurisdictional and can be waived. Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 388, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978); see also Ingram v. Acands, Inc., 977 F.2d 1332, 1339 n. 7 (9th Cir.1992); Blazak v. Ricketts, 971 F.2d 1408, 1409 & n. 2 (9th Cir.1992); Teamsters Pension Trust Fund v. H.F. Johnson, Inc., 830 F.2d 1009, 1012 (9th Cir.1987).
There is no reason why the district court's failure to comply with the separate judgment requirement of Rule 58 should have any bearing on whether Bonin's motion should have been considered under Rule 15(a) or Rule 60(b). The district court issued a written Opinion and Order on July 20, 1992, denying the Orange County petition, which was subsequently published, Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992).
Stamped on the front of the order was a notification to the parties stating: "THIS CONSTITUTES NOTICE OF ENTRY AS REQUIRED BY FRCP, RULE 77(d)." At the end of the order are the words "IT IS SO ORDERED," and the order is signed and dated by the district judge. All of the parties treated this document as a final judgment, and Bonin has not demonstrated that he was prejudiced in any way by the district court's failure to enter judgment on a separate document. Although entry of judgment on a separate document pursuant to Rule 58 triggers the running of the time limit for filing a notice of appeal and for filing postjudgment motions, the district court's order marked the appropriate threshold between prejudgment and postjudgment motions. We conclude that the district court correctly construed Bonin's August 18, 1992, motion to amend the Orange County petition as a Rule 60(b) motion subject to the cause and prejudice standard of McCleskey.
X
Bonin argues that the penalty juries in both trials were biased in favor of the death penalty as the result of numerous instructional errors. Bonin points to six possible instructional errors which he argues violated due process and his Eighth Amendment right to a reliable penalty verdict. "When a habeas petitioner asserts a due process violation on the basis of jury instructions, our review is limited to determining whether an allegedly defective jury instruction so infected the entire trial that the resulting conviction violates due process." Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir.1993) (internal quotations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 643, 126 L.Ed.2d 602 (1993).
We have further explained that " '[t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal.' " Id., quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977).
When a factor employed as an aid to determine whether the death penalty shall be imposed is challenged as being unconstitutionally vague under the Eighth Amendment, our review should be "quite deferential." Tuilaepa v. California, --- U.S. ----, ----, 114 S.Ct. 2630, 2635, 129 L.Ed.2d 750 (1994) (Tuilaepa ), citing Walton v. Arizona, 497 U.S. 639, 655, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511 (1990). A "factor is not unconstitutional if it has some 'common-sense core of meaning ... that criminal juries should be capable of understanding.' " Id. --- U.S. at ---- - ----, 114 S.Ct. at 2635-36, quoting Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959-60, 49 L.Ed.2d 929 (1976) (White, J., concurring).
A.
In accordance with California Jury Instructions, Criminal (CALJIC) No. 8.8.42, the trial courts in both cases listed the statutory mitigating circumstances and instructed the jury to consider the listed factors that were applicable. Bonin v. Vasquez, 807 F.Supp. at 619; Bonin v. Vasquez, 794 F.Supp. at 979. Bonin argues that this allowed the juries to consider the absence of numerous possible mitigating circumstances to be aggravating circumstances.
We recently rejected a virtually identical argument. Williams, 52 F.3d at 1481. Both courts instructed the juries to consider the listed factors only "if applicable." The cautionary words "if applicable" warned the jury that not all of the factors would be relevant and that the absence of a factor made it inapplicable rather than an aggravating factor.
B.
Bonin also contends that the instructions in both trials permitted the juries to double count aggravating factors. Both the Los Angeles and Orange County courts instructed the juries to consider: "(a) the circumstances of the crime of which [Bonin] was convicted in the present proceeding and the existence of any special circumstance found to be true; (b) the presence or absence of criminal activity by [Bonin] which involved the use or attempted use of force or violence or the express or implied threat to use force or violence." Bonin v. Vasquez, 807 F.Supp. at 620; Bonin v. Vasquez, 794 F.Supp. at 981. This instruction was taken verbatim from the then CALJIC No. 8.84.1 (subsequently amended), which was itself taken verbatim from California Penal Code Sec. 190.3.
While paragraph (a) obviously refers to the crimes for which the defendant has been convicted, paragraph (b) is intended to refer to crimes for which the defendant has not been convicted. People v. Bonin, 47 Cal.3d at 854, 254 Cal.Rptr. 298, 765 P.2d 460. Bonin's argument has been foreclosed by the Supreme Court's recent holding that the version of paragraph (b) at issue here is not unconstitutionally vague. Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2637.
C.
Bonin maintains that the use of age as a factor in sentencing, without specific instructions about how age was relevant or whether it was an aggravating or mitigating circumstance was unconstitutionally vague. This argument fails because the Supreme Court has held that the use of age as a sentencing factor without specific instructions regarding whether it is an aggravating or mitigating factor is not unconstitutionally vague. Id. --- U.S. at ---- - ----, 114 S.Ct. at 2637-38.
D.
Bonin contends that the submission of a multiple murder special circumstance for each murder improperly affected the jurors' weighing of the aggravating and mitigating factors. Under California law, "no matter how many murder charges are tried together, they constitute a single multiple-murder special circumstance." People v. Anderson, 43 Cal.3d 1104, 1150, 240 Cal.Rptr. 585, 742 P.2d 1306 (1987).
The California Supreme Court concluded that the trial courts in both cases erred in charging Bonin with a multiple-murder special circumstance for each count of murder, but decided the error was harmless. People v. Bonin, 47 Cal.3d at 854, 254 Cal.Rptr. 298, 765 P.2d 460; People v. Bonin, 46 Cal.3d at 702-03, 250 Cal.Rptr. 687. The district court also concluded that the error was harmless. Bonin v. Vasquez, 807 F.Supp. at 615; Bonin v. Vasquez, 794 F.Supp. at 981.
The error committed in charging Bonin with a special circumstance for each count of murder is an error of state law, which was cured for our purposes by the State Supreme Court's conclusion that the error was harmless in Bonin's case. See Williams, 52 F.3d at 1480.
E.
Bonin further contends that the juries' sense of responsibility for their sentencing decision was unconstitutionally lessened by the trial court's instruction: "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death." (Emphasis added.). This argument is foreclosed by the Supreme Court's decisions in Boyde v. California, 494 U.S. 370, 374-77, 110 S.Ct. 1190, 1195-96, 108 L.Ed.2d 316 (1990) (holding that the "shall impose" language of California's death penalty sentencing instructions does not violate the Eighth Amendment), and Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990) (holding that the mandatory imposition of the death penalty when one aggravating factor and no mitigating factors are shown does not violate the Eighth Amendment, and explaining that "[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.").
F.
Bonin also argues that the failure to instruct the Orange County jury on the meaning of the term "life without possibility of parole" renders Bonin's Orange County death sentence unreliable. He asserts that the jurors in his Orange County trial may have labored under the misconception that one sentenced to "life without possibility of parole" may actually be paroled, and that the trial courts should therefore have instructed the jury sua sponte that "life without possibility of parole" really means without possibility of parole.
The California Supreme Court did determine that 10 of the 204 prospective jurors examined on voir dire may have held this misconception, but that none of these individuals were selected as jurors or alternates. People v. Bonin, 46 Cal.3d at 698, 250 Cal.Rptr. 687, 758 P.2d 1217. Bonin responds that this misconception was widespread and that it is impossible to know exactly how many jurors held it because not all of the prospective jurors were asked about their understanding of the term. Bonin's argument is pure speculation. He offers no evidence that any of the jurors in his trials believed that "life without possibility of parole" means anything other than what it says.
XI
Finally, Bonin argues that all of the alleged trial errors and conflicts between himself and his attorney combined to create a wholesale deprivation of counsel which defies particularized analysis and necessitates a new sentencing hearing regardless of whether prejudice is shown. Bonin correctly points out that the total denial of counsel, whether it be actual or constructive, is presumed to result in prejudice. United States v. Cronic, 466 U.S. 648, 658-66, 104 S.Ct. 2039, 2046-51, 80 L.Ed.2d 657 (1984) (discussing cases in which errors resulted in constructive denial of counsel altogether and prejudice was not required). Bonin is also correct that some Sixth Amendment violations are so severe that they fundamentally undermine the adversary process and require reversal without any showing of prejudice. See, e.g., Frazer, 18 F.3d at 782-85 (defendant entitled to new trial despite failure to show prejudice where counsel used racial epithets toward defendant and threatened not to assist defendant). Bonin's case, however, clearly does not fit within either of these extremely limited exceptions to Strickland.
All other issues raised by Bonin were considered but rejected.
AFFIRMED.
*****
KOZINSKI, Circuit Judge, concurring.
The facts of this case shock even those of us inured to shocking facts by years of capital cases. Most distressing, however, is that these tragedies could have been averted: Bonin gave us more than fair warning of his proclivities before he embarked on his killing spree. The sordid tale begins at least as early as Bonin's service in Vietnam, when "he began to engage in violent nonconsensual homosexual activity." People v. Bonin, 46 Cal.3d 659, 671, 250 Cal.Rptr. 687, 758 P.2d 1217 (1988). Upon returning to civilian life, Bonin was twice convicted of kidnapping and sexually molesting a total of five boys between the ages of twelve and eighteen. The first conviction, in 1969, brought him all of three years behind bars; the second, in 1975, only three more. People v. Bonin, 47 Cal.3d 808, 824, 254 Cal.Rptr. 298, 765 P.2d 460 (1989). In 1978, Bonin was let loose on an unsuspecting population, condemning at least fourteen (and perhaps as many as twenty-one) more boys to sexual abuse, followed by slow, painful deaths. One knows not whether to pity more the victims of this ordeal or their parents, who must live with the dreadful knowledge of how their children perished.
Scott Geddes also gave us early warning. Geddes started at age sixteen and, prior to his last offense, had already been convicted on felony charges four different times--three for brutal sexual assaults against women. Geraldine Baum, Crime & Punishment, L.A. Times, Apr. 12, 1995, at E1 & E4. He received sentences ranging from two to five years for his first four convictions. Id. After each release, he usually committed another crime within the month. Id. Despite the obvious hazard presented by someone with Geddes's record, the state of New York released him again in 1993. Id. at E4. Less than three weeks later, Geddes assaulted his fourth rape victim, stabbed her repeatedly and forced her to walk from her blood-soaked car to a creek. Id. There, he finished her off and left her body floating face down in the water. Id. Walter McFadden was convicted of a double rape for which he spent less than five years behind bars. Deroy Murdock, Lifer Law for Repeat Felons?, Wash. Times, Apr. 17, 1993, at C1. Released on parole, he hastened to rape again. Id. McFadden's second prison stay also lasted less than five years, after which he was again placed on parole. Id. Within a year, he murdered two teenagers, and raped and then murdered an eighteen-year old girl. Id. Kenneth McDuff was convicted in 1966 of brutally murdering two teenage boys, see Green v. Estelle, 601 F.2d 877 (5th Cir.1979), and raping a teenage girl and snapping her neck with a broomstick. Stephanie Mencimer, Righting Sentences, Wash. Monthly, Apr. 1993, at 26. Although McDuff was to receive the death penalty, his sentence was commuted to life in prison and he was paroled in 1989. Id. Over the course of the next year, he became a suspect in nine brutal rape-homicides, id., and was eventually convicted of murdering two women, one of them pregnant. Kathy Walt, Former Parole Chief Sentenced in Perjury, Houston Chron., Aug. 11, 1994, at 25A, 32A (recounting trial of parole official instrumental in McDuff's release).
Then there is the notorious case of Westley Allan Dodd. Starting in high school, Dodd was arrested numerous times for sexual offenses involving children, including the molestation of his two young cousins and a kidnapping attempt where he admitted he had intended to rape and murder the seven-year-old victim. Timothy Egan, Death Row, Vancouver Sun, Jan. 2, 1993, at A1, available in WESTLAW, VNCVRSUN database, available in LEXIS, News Library, Allnws file. Even as an adult, Dodd received only brief jail stays, the longest amounting to four months. Id. Two years after his last release, Dodd tortured, raped and murdered a four-year-old boy and two brothers, aged ten and eleven. State v. Dodd, 120 Wash.2d 1, 838 P.2d 86, 87-89 (1992). Arrested for trying to kidnap a six-year-old boy, Dodd explained that, given the leniency he had been shown thus far, he figured he could keep getting away with his crimes. Egan, Vancouver Sun, Jan. 2, 1993, at A1. In all, Dodd molested over thirty children. Peter J. Ferrara et al., The Candidate's Briefing Book 139 (1994).1
There is a pattern here. Of the 2,716 death row inmates in 1993, almost two-thirds had prior felony convictions. Bureau of Justice Statistics, U.S. Dep't of Justice, Bulletin No. NCJ-150042, Capital Punishment 1993 at 10 (1994). Twenty-eight percent of all death row inmates were on probation, parole or pre-trial release at the time of their capital offense. Id. It should come as no surprise, then, that repeat offenders--though only 6% of criminals--commit 70% of all serious crimes. Gwenn Ifill, Crime Proposal's Effect on Gun Use Is Questioned, N.Y. Times, May 24, 1991, at A14.
Our society surely has its priorities misplaced when someone with Bonin's record of contempt for the personal integrity of others is released in the blink of an eye, while dealers of controlled substances--even in relatively small quantities--are given ten-year, twenty-year and life terms.2 Many others have called attention to this disparity. In United States v. Staufer, 38 F.3d 1103 (9th Cir.1994), for example, the defendant was convicted on a one-count indictment for selling half a gram of LSD--his first conviction. Id. at 1105. The district judge noted with exasperation that he was compelled " 'to give Mr. Staufer for the transaction more time in prison than [he was] authorized to give a man who murdered his wife on their honeymoon.' " Id. Were we as committed to punishing and preventing physical violence as we are to waging the war on drugs, Bonin's victims, and those of many other brutal killers, might still be among us.
1 There is a long, dreary list of similar cases. See, e.g., Oliver Starr, Jr., The Case of Richard Davis, Nat'l Rev., May 30, 1994, at 34 (describing Richard Allen Davis, who was arrested well over a dozen times before being charged with kidnapping and murdering Polly Klaas); People v. Viale, 121 A.D.2d 486, 503 N.Y.S.2d 583, 584 (1986), Charles V. Zehren, NY Debates Locking Up Repeat Felons for Life, Newsday, Jan. 16, 1994, at 19 (describing Michael Viale, who had three prior violent felony convictions, including one for murder, before being charged with stabbing a housewife to death); People v. Gallego, 52 Cal.3d 115, 276 Cal.Rptr. 679, 708, 802 P.2d 169, 175-76 (1990), Gallego v. State, 101 Nev. 782, 711 P.2d 856, 858 (1985), Patricia Holt, Lurid New Account of 'Sex Slave' Killer, S.F. Chron., July 17, 1990, at E5 (describing Gerald Gallego, who was charged twenty-seven times and convicted seven times on felony counts before kidnapping, torturing and killing ten young women in his search for the perfect sex slave); McKenzie v. Osborne, 195 Mont. 26, 640 P.2d 368, 381 (1981), State v. McKenzie, 171 Mont. 278, 557 P.2d 1023, 1033 (1976) (describing Duncan McKenzie, who had been convicted of brutally raping a woman, been paroled, gotten thrown back into prison for numerous parole violations and then been paroled again before brutally raping and killing another woman); State v. Fischer, 38 N.J. 40, 183 A.2d 11, 12 (1962), Reuters, July 31, 1979, available in LEXIS, News Library, Allnws file (describing Joseph Fischer, who had been convicted of murder, was released and then killed twenty more people)
2 There is a long and not particularly inspiring list for this category as well. See, e.g., United States v. Van Winrow, 951 F.2d 1069, 1072 (9th Cir.1991) (affirming life sentence without possibility of parole for twenty-two-year-old because he had previously been convicted of cocaine possession); United States v. Hoyt, 879 F.2d 505, 512-14 (9th Cir.1989) (holding that ten-year sentence for first-time offender under cocaine possession statute is constitutional); United States v. Hanlin, 48 F.3d 121 (3rd Cir.1995) (affirming ten-year sentence for possession of 167 milligrams of LSD carried on 24.3 grams of paper); Cracking Down on the Right Targets, L.A. Times, Sept. 28, 1994, at B6 (percentage of federal prisoners who are drug offenders has quadrupled from 16% to 62% since 1970)
77 F.3d 1155
William George Bonin, Petitioner-Appellant,
v.
Arthur Calderon, Warden, Respondent-Appellee (Two Cases).
William George Bonin, Plaintiff-Appellant,
v.
Arthur Calderon, Warden, Defendant-Appellee.
No. 96-99003
Federal Circuits, 9th Cir.
February 22, 1996
Appeals from the United States District Court for the Central District of California; Edward Rafeedie, District Judge, Presiding.
Appeal from the United States District Court for the Northern District of California; Marilyn H. Patel, District Judge, Presiding.
Before: WALLACE, Chief Judge, BRUNETTI and KOZINSKI, Circuit Judges.
WALLACE, Chief Judge:
William George Bonin, a California state prisoner awaiting execution at San Quentin State Prison, appeals from the district court's denials of two petitions for writ of habeas corpus relief under 28 U.S.C. 2254, and an order dismissing a civil rights action under 42 U.S.C. 1983. We have jurisdiction over these timely appeals pursuant to 28 U.S.C. 1291, 2253, and we affirm.
* The lengthy procedural history of this case and the grisly facts underlying it are discussed in Bonin v. Calderon, 59 F.3d 815 (9th Cir.1995) (Bonin II ), cert. denied, --- U.S. ----, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996). In that decision, we denied Bonin's first set of habeas corpus petitions, which challenged convictions and death sentences imposed as a result of separate trials held in Los Angeles and Orange Counties. Id., aff'g, Bonin v. Vasquez, 807 F.Supp. 589 (C.D.Cal.1992) (Los Angeles County); Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992) (Orange County). On February 6, 1996, Bonin again filed two habeas corpus petitions with the California Supreme Court, which denied them on February 15, 1996.
Bonin then filed two emergency petitions in the federal district court for the Central District of California challenging his death sentences and seeking an immediate stay of his imminent execution, scheduled for February 23, 1996. On February 20, 1996, the district court denied both petitions and denied Bonin's application for stay of execution, holding that the claims raised by Bonin either constituted an abuse of the writ or lacked merit. The district court granted Bonin a certificate of probable cause to appeal, which we affirmed in a separate, unpublished order.
Bonin also filed a civil rights action in the federal district court for the Northern District of California on February 16, 1996, challenging his imminent execution by means of lethal injection. Named defendants James Gomez and Arthur Calderon moved the court to dismiss Bonin's action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court held a hearing on February 20, 1996, and it subsequently dismissed Bonin's action and denied his motion for a temporary restraining order. Bonin appeals from the denials of his habeas petitions and the dismissal of his civil rights action; we consolidate these appeals and address them in turn.
II
We review de novo the denial of Bonin's petitions for writ of habeas corpus. Bonin II, 59 F.3d at 823. We may affirm on any ground supported by the record, even if it differs from the rationale of the district court. Id. Bonin raised twelve claims in his second set of habeas petitions. Claims 1-6 allege that Bonin's counsel on direct appeal in state court (appellate counsel) was ineffective for failing to discover a potential conflict created by trial counsel's dual representation of Bonin and a potential defense witness, that trial counsel should have objected to the testimony of codefendant Gregory Miley, and that the prosecution did not disclose threats and promises made to codefendant James Munro.
Bonin alleges these errors resulted in violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Although he attempted to raise these claims in a motion to amend his first set of federal habeas petitions, the district court denied the motion as an abuse of the writ. See Bonin v. Vasquez, 999 F.2d 425, 426-27 (9th Cir.1993) (Bonin I ). He also raises other claims not raised in the first habeas corpus petitions: that appellate counsel provided ineffective assistance in not asserting the state trial prosecution knowingly used perjured testimony and did not disclose material impeaching evidence in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights; in not raising the issue of alleged hypnotically-induced testimony of Miley; and in failing to argue the constitutional inadequacy of his convictions due to Miley's testimony.
Claims 7-9 allege juror misconduct, of which Bonin learned as a result of interviews with several jurors conducted by his counsel on January 8, 1996. Claim 10 alleges that Bonin's appellate counsel provided ineffective assistance by failing to argue that executing Bonin following the State's "institutional failure"--terminating mental treatment and releasing him from custody, when the State knew Bonin would again commit crimes--constitutes cruel and unusual punishment. Bonin concedes that the factual basis for Claim 10 is found in the appellate record. Claim 11 arises from the amount of time Bonin has spent on death row. Claim 12 challenges the State's authority under California law to calendar a hearing at which Bonin's execution date was scheduled. Bonin also has challenged whether the district court's 1992 judgments were final.
State prison warden Calderon argues that all of Bonin's claims are procedurally barred because the California Supreme Court denied Bonin's petitions on adequate and independent state grounds. Alternatively, Calderon argues that Claims 1-11 constitute an abuse of the writ because they could have been brought in Bonin's first set of petitions. See McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467-68, 113 L.Ed.2d 517 (1991) (McCleskey ) (abuse of the writ may occur where petitioner raises a claim in a subsequent petition that could have been raised in his first, regardless of whether the failure to raise it earlier stemmed from deliberate choice). Calderon also argues that Claim 12 lacks merit.
We do not need to consider whether adequate and independent state procedural grounds exist to support the state court's decisions because, even if they do, we may address the merits of Bonin's claims if he can show cause for his procedural defaults and actual prejudice as a result of the alleged violations of federal law. See Coleman v. Thompson, 501 U.S. 722 , 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (Coleman ). The same standard applies to Bonin's successive petitions if they were denied on federal grounds. Schlup v. Delo, --- U.S. ----, ---- - ----, 115 S.Ct. 851, 862-63, 130 L.Ed.2d 808 (1995) (Schlup ). Either way, we need to consider cause and prejudice.
To demonstrate cause, a petitioner must show that " 'some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470, quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (Carrier ). "[C]onstitutionally ineffective assistance of counsel ... is cause." McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470 (internal quotation omitted and ellipses in original). "Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default." Id. Thus, counsel's ineffectiveness will constitute cause only if it amounts to an "independent constitutional violation." Coleman, 501 U.S. at 755, 111 S.Ct. at 2567.
If Bonin can establish cause, he then must demonstrate "actual prejudice resulting from the errors of which he complains." McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470 (internal quotation omitted). Even if Bonin cannot show cause and prejudice, we may consider the merits of his claims if failure to do so would result in a miscarriage of justice. Schlup, --- U.S. at ---- - ----, 115 S.Ct. at 863-64. Such injustice occurs where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at ----, 115 S.Ct. at 864, quoting Carrier, 477 U.S. at 496, 106 S.Ct. at 2649; see also Schlup, --- U.S. at ----, 115 S.Ct. at 867 (adopting Carrier standard).
A.
Bonin argues that he failed to raise Claims 1-10 in his first habeas petition because he was denied effective counsel at his first appeal as of right in the state court, which he argues includes both direct appeal and habeas review, as he had the same counsel during both proceedings. Bonin therefore argues that this is his first opportunity to assert ineffective assistance of his counsel on direct appeal in state court. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (defendant has constitutional right to counsel at trial and through direct appeal).
Bonin alternatively characterizes his argument as ineffective assistance on the part of his appellate counsel and on the part of his first habeas counsel, although they were the same. He bases his argument on the contention that state law extends the Sixth Amendment right to effective assistance of counsel on direct appeal to first habeas proceedings. See In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (Clark ). Clark, however, recognizes only a state-law right to competent counsel in a habeas corpus proceeding. See id. at 780, 21 Cal.Rptr.2d 509, 855 P.2d 729 ("Regardless of whether a constitutional right to counsel exists, a petitioner who is represented by counsel when a petition for writ of habeas corpus is filed has a right to assume that counsel is competent and is presenting all meritorious claims.").
We and the Supreme Court repeatedly have held that there is no constitutional right to effective assistance of counsel in habeas corpus cases. See, e.g., Coleman, 501 U.S. at 755, 111 S.Ct. at 2567-68; Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987); Bonin I, 999 F.2d at 429; Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1991), cert. denied, 503 U.S. 910 , 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). Bonin therefore cannot show cause by alleging that his first habeas counsel performed ineffectively in failing to allege the ineffectiveness of his appellate counsel in the first set of habeas petitions. His counsel's failure to raise the issue of his own ineffectiveness on appeal did not violate Bonin's rights under the Sixth Amendment.
To the extent that Bonin argues that his appellate counsel was ineffective, this claim is barred for failure to include it in the first federal habeas petitions. Jeffers v. Lewis, 68 F.3d 299, 300 (9th Cir.) (en banc) (Jeffers ), cert. denied, --- U.S. ----, 116 S.Ct. 36, 132 L.Ed.2d 917 (1995); see also McCleskey, 499 U.S. at 489, 111 S.Ct. at 1467-68 (claim barred where petitioner could have discovered underlying facts prior to filing first petition).
Bonin unsuccessfully argues that the concerns over never-ending appeals discussed in Bonin I are not implicated here because the Sixth Amendment right to counsel attaches only to claims available at the time of the first effective challenge to the state conviction in the state reviewing court. Again, Bonin essentially argues that he had the right to effective counsel on his first set of federal habeas petitions, because that was the first opportunity he had to challenge his appellate counsel's performance.
Although Bonin asserts that Coleman left open this issue, Bonin I and a plurality of the Ninth Circuit already have answered it in the negative. See Jeffers, 68 F.3d at 300 (plurality) (stating that there is "no Sixth Amendment right to counsel during [a] state habeas proceeding[ ] even if that was the first forum in which [petitioner] could challenge constitutional effectiveness"), citing Bonin I, 999 F.2d at 429. Had Bonin properly raised the alleged ineffectiveness of appellate counsel in his first federal habeas corpus petitions, the district court could have made any adjustment in Bonin's representation for this claim, if necessary, to evaluate it. What Bonin cannot do is wait until now to assert his appellate counsel's ineffectiveness.
Bonin next argues that cause is established because he was deprived of due process during his first habeas corpus proceedings due to his counsel's lack of diligence. In Bonin I, Bonin's counsel requested to be removed because of a possible conflict created by arguing that his own ineffectiveness in representing Bonin during his habeas corpus proceedings caused Bonin's failure to include all of his claims in his first petition. Bonin also argued that Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 , 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987), established a constitutional right, rooted in the Fifth Amendment's Due Process Clause, to effective appointed counsel in complex habeas corpus cases. Bonin I, 999 F.2d at 428.
Bonin I held that although there is no constitutional right to the appointment of counsel in habeas corpus cases, petitioners do have a right to due process in habeas corpus proceedings, which may require counsel be appointed. Id. at 429. Bonin now carries that argument one giant step further by contending that his counsel's ineffectiveness on direct appeal resulted in a Fourteenth Amendment due process violation.
Bonin has not demonstrated an "independent constitutional violation" required by McCleskey and Coleman to show cause. In the abstract, Bonin argues that a due process violation resulting from the lack of counsel in habeas corpus proceedings may demonstrate cause for failure to raise all discoverable claims in a first habeas corpus petition.
Under the circumstances presented here, however, Bonin is again attempting to equate the Sixth Amendment right to effective assistance of counsel with the Fourteenth Amendment due process right. He essentially argues that the Fourteenth Amendment violation is his ineffective assistance of counsel. See Bonin I, 999 F.2d at 429 (Bonin "is in essence [attempting] to include Sixth Amendment rights within the Due Process Clause").
Although not stated explicitly in Bonin I, we now hold that ineffective assistance of counsel in habeas corpus proceedings does not present an independent violation of the Sixth Amendment enforceable against the states through the Due Process Clause of the Fourteenth Amendment. To recognize such a claim would allow the Fourteenth Amendment to "swallow the rule" that there is no constitutional right to effective assistance of counsel in habeas corpus proceedings. See id. at 430.
If Bonin believed he was denied due process in his appeals before the state court, he could have raised that claim in his first set of habeas corpus petitions. Bonin, however, represented to the district court that his first petition was " 'professionally and capably prepared and ... fully comprehensive,' and that he was not keeping claims 'in his hip pocket.' " Bonin II, 59 F.3d at 845.
Claims 1-10 rest on facts discoverable at the time Bonin filed his first set of federal habeas corpus petitions and Bonin presents no valid reason why he could not have raised these claims at that time, especially considering that Bonin has the same counsel now as he had then. As the district court found, all of the facts underlying Bonin's claims, including those related to his arguments concerning the testimony of codefendants Munro and Miley, were apparent from the record. Because Bonin cannot demonstrate cause, we need not consider whether he suffered actual prejudice as a result of his counsel's alleged shortcomings.
Alternatively, Bonin argues that failure to reach the merits of his claims would result in a fundamental miscarriage of justice. There is no serious question of Bonin's guilt, nor does he press this issue diligently. See Bonin II, 59 F.3d at 836 (applying prejudice standard for cases in which there is " 'overwhelming evidence of guilt,' " quoting United States v. Coleman, 707 F.2d 374, 378 (9th Cir.), cert. denied, 464 U.S. 854 , 104 S.Ct. 171, 78 L.Ed.2d 154 (1983)). No fundamental miscarriage of justice would occur from denying Bonin's petition as procedurally barred. See McCleskey, 499 U.S. at 502, 111 S.Ct. at 1474-75.
B.
In Claim 11, Bonin argues that his fourteen-year confinement on death row constitutes cruel and unusual punishment in violation of the Eighth Amendment. Bonin's state convictions became final in 1982 and 1983, and his automatic direct appeals were exhausted in 1988 and 1989. Thus, Bonin has expended at least seven years pursuing collateral attacks on his state convictions. In McKenzie v. Day, 57 F.3d 1461 (9th Cir.) (McKenzie ), adopted en banc, 57 F.3d 1493 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1840, 131 L.Ed.2d 846 (1995), we held that condemned prisoners are not entitled to a stay of execution because of delay caused by their own collateral attacks in federal court. Id. at 1467.
Whether such attacks have some merit or valid legal basis is not relevant to this conclusion. See id. at 1465 (rejecting argument that death row prisoner failed to raise Lackey v. Texas, --- U.S. ----, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995), claim in first habeas petition because it lacked merit). As in McKenzie, Bonin could have raised this claim in his first habeas corpus petition filed in the district court in 1992, at which time Bonin had been confined for ten years. Bonin offers no reason for not raising this claim earlier. We therefore hold that this claim is barred under McCleskey for failing to show cause.
C.
Bonin's only argument not barred under McCleskey is that the State violated his Eighth and Fourteenth Amendment rights by sending notice of a hearing to set the date of his execution prior to the day we issued our mandate in Bonin II. Bonin contends that, because the federal district court's stay of execution pending appeal was still in effect, state law prohibited any action related to his execution. By failing to follow its own procedures, Bonin argues, the State violated his right to the uniform and predictable application of the laws guaranteed by the Fourteenth Amendment.
We issued the mandate in Bonin II on January 16, 1996, following the Supreme Court's denial of Bonin's petition for a writ of certiorari on January 8, 1996. On January 9, 1996, the Los Angeles County Superior Court calendared a hearing for January 19, 1996, at which time Bonin's execution date was set. Also on January 9, the Orange County Superior Court similarly calendared January 22, 1996, for a hearing for the setting of Bonin's execution date. Bonin asserts that these actions, which occurred prior to January 16, 1996, violated the federal stay of execution entered on December 30, 1992. The stay states that it is to "remain in effect until the Ninth Circuit Court of Appeals acts upon the appeal or this Order."
Even if the stay were in effect on January 9, 1996, and even if the Los Angeles and Orange County Superior Courts did not follow California procedure, Bonin could not present a cognizable Fourteenth Amendment claim. See Moran v. Godinez, 57 F.3d 690, 698 (9th Cir.1994) (Moran ) (no federally recognized liberty interest where no substantive right protected by state law procedures), cert. denied, --- U.S. ----, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995).
Section 2251 of Title 28 states:
A justice or judge of the United States before whom a habeas corpus proceeding is pending, may ... stay any proceeding against the person detained in any State court ... for any matter involved in the habeas corpus proceeding.
After the granting of such a stay, any such proceeding in any State court ... shall be void.
"Any such proceeding" refers back to a proceeding "for any matter involved in the habeas corpus proceeding." The parties vigorously debate whether merely mailing notices of the January 19 and 22 hearings constitutes a "proceeding" under section 2251. For purposes of this appeal only, we assume that it does, and that Bonin's execution date was set in violation of state law, which requires 10 days notice before the session of court at which the date of execution will be set. California Rules of Court 490(a).
Federal habeas corpus relief does not lie for errors of state law, unless the error amounts to a deprivation of the petitioner's constitutional rights. See Estelle v. McGuire, 502 U.S. 62 , 67-69, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir.1992), aff'd on reh'g en banc, 18 F.3d 662 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.1991); see also 28 U.S.C. 2254(a). The violation of state law alleged here does not constitute a violation of the Fourteenth Amendment because there is no violation of a substantive interest to which Bonin has a legitimate claim of entitlement. See Moran, 57 F.3d at 698, citing Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1747-48, 75 L.Ed.2d 813 (1983) (Olim ). "Only the denial or misapplication of state procedures that results in the deprivation of a substantive right will implicate a federally recognized liberty interest." Moran, 57 F.3d at 698; cf. Sandin v. Conner, --- U.S. ----, ----, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (constitutionally protected liberty interests contained in prison regulations generally limited to freedom from restraint).
Because California provided Bonin constitutionally adequate procedures in setting the date of his execution, any violation of state law did not result in the deprivation of a substantive right. Moran, 57 F.3d at 698; see also Olim, 461 U.S. at 250, 103 S.Ct. at 1747-48 (stating that "[p]rocess is not an end in itself"); Johnson v. Arizona, 462 F.2d 1352, 1353 (9th Cir.1972) (rules of sentencing adopted by state courts do not raise constitutional issues which may be reached by habeas proceedings).
D.
Finally, Bonin contends that no final judgment ever issued in his first set of habeas corpus petitions pursuant to Federal Rule of Civil Procedure 58. He therefore contends that the federal courts have never finally ruled on whether his appellate counsel's ineffectiveness constitutes cause under McCleskey for the purpose of amending his first federal habeas corpus petitions. See Bonin I, 999 F.2d at 432 (observing that counsel's ineffectiveness never raised before the district court in the Los Angeles case as a reason for granting Bonin's motion to amend).
In Bonin II, however, Bonin challenged the district court's decisions denying his motions to amend the Orange and Los Angeles County petitions. As to the Orange County petition, we held that the district court did not abuse its discretion in deciding that all of the new claims Bonin presented in his amended petitions "could have been raised when Bonin initially filed his petition." Bonin II, 59 F.3d at 845.
The district court based its decision, in part, on Bonin's admission two months before filing the amended petition that he was not keeping claims "in his hip pocket." Id. As to the Los Angeles County petition, we held that the district court did not abuse its discretion by denying Bonin's December 23, 1991, motion to amend as untimely filed. Id. at 846 (recognizing that Bonin filed the amended petition seven months late).
We also held that the district court based its decision on proper considerations, including Bonin's failure to provide a satisfactory explanation of his failure to develop his claims fully in his first petition. See id. at 845-46. Bonin filed a second motion to amend the Los Angeles petition on August 18, 1992. We held that the district court did not abuse its discretion in denying that motion, which was filed " 'long after the work in the case had concluded and seven months after the Court took the petition under submission.' " Id. at 846, quoting Bonin v. Vasquez, 807 F.Supp. at 587.
Bonin is bound by Bonin II. We therefore reject his arguments that McCleskey does not bar amendments to his first set of federal habeas corpus petitions and that this is his first opportunity to raise the ineffectiveness of his appellate counsel because no final judgment was issued on his first set of federal habeas petitions.
Because we hold that Bonin's claims are either barred by McCleskey or lack merit, we affirm the district court's orders denying Bonin's petitions for habeas corpus relief, and we deny Bonin's application to vacate his execution date and for an emergency stay of execution.
III
We now turn to Bonin's section 1983 action, in which he argues that Gomez and Calderon will violate state law and Bonin's constitutional right to choose his method of execution if they execute him as planned by lethal injection. The district court exercised jurisdiction pursuant to 28 U.S.C. 1343. Its decision was based on conclusions of law, which we review de novo. Price v. United States Navy, 39 F.3d 1011, 1021 (9th Cir.1994). Because the district court's order shows its bases for dismissing Bonin's action, we need not address Bonin's argument that the court's failure to provide him a transcript of the February 20, 1996, hearing deprived him of due process.
Bonin's claim is premised on his alleged state-created liberty interest in choosing between lethal injection and the gas chamber. California law, however, guarantees no such choice. California Penal Code § 3604 provides, in part:
(a) The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death....
(b) Persons sentenced to death ... shall have the opportunity to elect to have the punishment imposed by lethal gas or lethal injection....
...
(d) Notwithstanding subdivision (b), if either manner of execution described in subdivision (a) is held invalid, the punishment of death shall be imposed by the alternative means specified in subdivision (a).
Use of lethal gas under California procedure was invalidated as violative of the Eighth Amendment in Fierro v. Gomez, 77 F.3d 301 (9th Cir.1996). Fierro concludes that "execution by lethal gas under the California protocol is unconstitutionally cruel and unusual and violates the Eighth and Fourteenth Amendments." Id.
Fierro also permanently enjoined Gomez and Calderon from administering lethal gas under the California protocol against the plaintiffs in that action. Because the Ninth Circuit has now affirmed the district court's conclusions in Fierro, Bonin cannot argue that use of lethal gas upon him has not been "held invalid" under section 3604(d).
It follows that Bonin has no state-created, constitutionally protected liberty interest to choose his method of execution. Section 3604(d) does not guarantee Bonin a choice under these circumstances, thus it does not create a constitutionally protected liberty interest. See Toussaint v. McCarthy, 801 F.2d 1080, 1095 (9th Cir.1986) (where statute created only possibility of early release it did not create constitutionally protected liberty interest), cert. denied, 481 U.S. 1069 , 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). Bonin therefore suffers no due process violation.
The Supreme Court has stated that as long as the method selected is not cruelly inhumane, it does not violate the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976). Because Bonin does not argue that execution by lethal injection is unconstitutional, we conclude the method of execution to be implemented on February 23, 1996, is applied constitutionally. We therefore deny Bonin's application for a temporary restraining order because his claim for section 1983 relief has no merit.
AFFIRMED; STAY PETITIONS DENIED.
