Fairbank v. Ayers

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT GREEN FAIRBANK,  No. 08-99018
Petitioner-Appellant, D.C. No.
v. 3:98-CV-01027-
ROBERT L. AYERS, JR., Warden for  CRB
California State Prison at San ORDER AND
Quentin, AMENDED
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Argued and Submitted
December 10, 2010—San Francisco, California

Filed February 15, 2011
Amended August 10, 2011

Before: Mary M. Schroeder, Sidney R. Thomas, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Thomas

10517
 FAIRBANK v. AYERS 10521

COUNSEL

Mark Raymond Drozdowski, Federal Public Defender, Los
Angeles, California, for the appellant.

Nanette Sue Winaker, Deputy Assistant Attorney General,
San Francisco, California, for the appellee.

ORDER

The opinion is amended as follows:

1. Page 2473, line 19 to line 23. Replace:

Fricke’s testimony was generally favorable to defen-
dant, and any negative inferences were based on a
trial strategy of gaining credibility with the jury to
argue that Fairbank could be controlled in prison,
thereby making a death sentence unnecessary.

With:

Fricke’s testimony was generally favorable to defen-
dant, and any negative inferences were based on a
reasonable trial strategy of gaining credibility with
the jury to argue that Fairbank could be controlled in
prison, thereby making a death sentence unneces-
sary.

2. Page 2477, line 10 to line 17. Replace:
10522 FAIRBANK v. AYERS
Because a federal court sitting in habeas must pre-
sume that a factual determination made by a state
court is correct, and because there is no clear and
convincing evidence to the contrary, we hold that
Fairbank’s prosecutorial misconduct claim is proce-
durally barred. See 28 U.S.C. § 2254(e); Bradshaw
v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s
interpretation of state law . . . binds a federal court
sitting in habeas.”).

With:

“We must follow the well-settled rule that ‘the inde-
pendent state grounds doctrine bars the federal
courts from reconsidering the issue in the context of
habeas corpus review as long as the state court
explicitly invokes a state procedural bar rule as a
separate basis for its decision.’ ” Jackson v. Giur-
bino, 364 F.3d 1002, 1006-07 (9th Cir. 2004) (quot-
ing McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th
Cir. 1995)).

To bar federal review, the state procedural rule
must also be adequate. That is, it must be “clear,
consistently applied, and well-established at the time
of the petitioner’s purported default.” Melendez v.
Pliler, 288 F.3d 1120, 1124 (9th Cir. 2002) (internal
quotation marks and citation omitted). We have held
that California consistently applies its contempora-
neous objection rule when a party fails to object to
the admission of evidence. See Garrison v. McCar-
thy, 653 F.2d 374, 377 (9th Cir. 1981); see also
Melendez, 288 F.3d at 1125. On direct review, the
California Supreme Court determined that defense
counsel could have known the prosecutor’s question-
ing was likely to elicit the racial slur and probably
could have prevented the statement by objecting. See
Fairbank, 16 Cal. 4th at 1252. Because a federal
 FAIRBANK v. AYERS 10523
court sitting in habeas must presume that this finding
of fact is correct, see 28 U.S.C. § 2254(3), and
because there is no clear and convincing evidence to
the contrary, we conclude that the California
Supreme Court applied an independent and adequate
state procedural rule that bars federal review of Fair-
bank’s prosecutorial misconduct claim.

Because Fairbank has defaulted his federal claim,
for us to be able to review it, Fairbank must “demon-
strate cause for the default and actual prejudice as a
result of the alleged violation of federal law.” See
Coleman v. Thompson, 501 U.S. 722, 750 (1991);
see also Franklin v. Johnson, 290 F.3d 1223, 1230-
31 (9th Cir. 2002). To establish cause for a proce-
dural default, a petitioner must show that “some
objective factor external to the defense impeded
counsel’s efforts to comply with the State’s proce-
dural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). We need not decide whether there is cause
for the default because we conclude that Fairbank
has not shown the requisite prejudice. The statement
was never again referenced in the trial, and race or
racial animus was never advanced as a factor in
either Fairbank’s actions or his potential sentence.
As such, Fairbank has not shown that the statement
“infect[ed] his entire trial with error of constitutional
dimensions.” See Murray v. Carrier, 477 U.S. 478,
494 (1986) (quoting United States v. Frady, 456 U.S.
152, 170 (1982) (internal quotation marks omitted)).

With these amendments, the petition for rehearing is
DENIED. The petition for rehearing en banc was circulated
to the judges of the court, and no judge requested a vote for
en banc consideration. The petition for rehearing en banc is
DENIED. No further petitions for rehearing or rehearing en
banc will be entertained.
10524 FAIRBANK v. AYERS
OPINION

THOMAS, Circuit Judge:

Robert Green Fairbank, a California state prisoner, appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas cor-
pus petition challenging his guilty plea and capital sentence
for murder. Fairbank alleges trial counsel rendered ineffective
assistance by: (1) failing to investigate and present mitigating
evidence; (2) presenting allegedly prejudicial and aggravating
information; (3) advising Fairbank to plead guilty after two
days of trial; and (4) portraying Fairbank in a negative light
in closing arguments. Fairbank also alleges that the use of let-
ters written by him to a jailhouse informant violated his right
to counsel under the Sixth Amendment and that the prosecu-
tor committed misconduct by eliciting testimony about Fair-
bank’s racial slur. Finally, Fairbank alleges he was prejudiced
by the cumulative impact of these errors. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.

I

On December 5, 1985, Fairbank invited his neighbor,
Arlene G., into his home under false pretenses and sexually
assaulted her. Fairbank was convicted of crimes associated
with this conduct in 1985. One week after this assault and
Fairbank’s subsequent arrest, while Fairbank was released on
his own recognizance, Wendy Cheek disappeared. On
December 14, 1985, a motorist found a body in a grove of
trees near a highway, and fingerprints confirmed the body was
Cheek’s. The body was naked, had numerous stab wounds,
and was partially burned. Fairbank was arrested and charged
with the first degree murder of Cheek, with special circum-
stances of attempted rape, unlawful oral copulation, use of a
deadly weapon, and torture.

While awaiting trial in 1986, Fairbank occupied a jail cell
near John Szymkiewicz. Fairbank wrote Szymkiewicz numer-
 FAIRBANK v. AYERS 10525
ous letters discussing evidence from the Cheek murder, and
he asked Szymkiewicz to “cop to the [Cheek] murder or set
up an alibi” in return for money. He also asked Szymkiewicz
for help in hurting and intimidating the potential witnesses.
Szymkiewicz contacted law enforcement officers to see if
they would be interested in information about Fairbank’s case
in exchange for leniency in the charges pending against
Szymkiewicz.

Prior to trial, Fairbank moved to exclude the letters, argu-
ing that Szymkiewicz acted as a state agent to obtain incrimi-
nating statements in violation of Massiah v. United States,
377 U.S. 201 (1964). The state trial court held an evidentiary
hearing on the claim, during which it heard testimony from
six witnesses. The trial court held that there was no Massiah
violation because the statements were not deliberately elicited
by law enforcement personnel. In a later hearing, Szym-
kiewicz stated on cross-examination that he believed if he
obtained enough information, the law enforcement officers
would be interested. However, on re-direct, Szymkiewicz reit-
erated that the officers did not order or suggest to him to
obtain more information. In this later hearing, the court again
ruled that Szymkiewicz was not a state agent.

The case proceeded to trial. During voir-dire, Fairbank’s
trial counsel admitted that Fairbank had killed Cheek but
repeatedly questioned the potential jurors about their views on
elevating the homicide into first degree murder. As trial coun-
sel explained to one panel, “what the evidence will show and
what we are essentially conceding is that Mr. Fairbank is
responsible for the killing, and it will be up to the jury to
decide what degree of guilt should be put on that.” The prose-
cution’s opening statement and first eight witnesses detailed
the heinous nature of the Cheek murder and the Arlene G.
assault. At one point during the opening statement, the prose-
cutor mentioned the Szymkiewicz letters and showed the jury
a blown-up copy of one of the notes. After less than two full
days of testimony, Fairbank pled guilty to first degree murder
10526 FAIRBANK v. AYERS
and the special circumstances of attempted oral copulation,
torture, and use of a deadly weapon. Although Fairbank did
not enter into any type of plea deal in exchange for his guilty
plea, the prosecutor dropped the attempted rape special cir-
cumstance, and the court dismissed that charge.

Prior to the sentencing phase of the trial, Fairbank’s trial
counsel moved again to exclude the Szymkiewicz letters,
arguing that the letters were irrelevant now that Fairbank had
admitted guilt. The prosecution opposed this motion, explain-
ing that the letters were relevant at sentencing to show Fair-
bank’s state of mind both during and after the crime. The
court admitted the two letters in which Fairbank sought
Szymkiewicz’s help in intimidating potential witnesses and
took under submission a ruling on the other letters purporting
to discuss facts of the crime.

During the sentencing phase, the defense strategy was to
gain credibility with the jury by admitting the seriousness of
Fairbank’s crime but showing that he had accepted responsi-
bility for his actions and that he was controllable in prison,
thereby making the death penalty unnecessary. The defense
presented two expert witnesses and four lay witnesses. The
first expert witness, Dr. Clark, was a psychiatrist with a speci-
ality in addiction medicine. Clark had reviewed Fairbank’s
medical records, prior criminal records, and the evidence
associated with the Cheek murder. Before Clark testified,
Fairbank’s trial counsel moved to prevent the prosecution
from questioning Clark about the Szymkiewicz letters not
admitted into evidence. Trial counsel explained that even
though Clark was prepared to testify that “some of the behav-
ior that Mr. Fairbank exhibited during those incidents is, in
fact, consistent with him being impaired by the use of
cocaine,” the decision not to question him as to drug psycho-
sis was a “tactical decision.” The prosecution responded by
arguing that, “[i]f the doctor says that this psychosis is some-
thing that causes a person to blackout or causes a person’s
memory to fail or that they don’t know what they were doing
 FAIRBANK v. AYERS 10527
at the time, I think it may be very probative that several
months later he was able to specify certain details.” Trial
counsel reiterated its strategy that “[t]he doctor is not going
to state any opinion as to what Mr. Fairbank’s mental state
was on December 12, 1985. We’re taking the view that is
something the jury is going to have to decide based on what
the facts are and based on what his general description is of
this kind of problem.” The court ruled that the prosecution
could not mention the excluded letters. Clark then testified
generally about the effects of cocaine use and drug psychosis
but did not testify about Fairbank’s drug use during or before
the Cheek murder.

The second expert witness Fairbank’s trial counsel pre-
sented was Dr. Fricke, a clinical psychologist. Trial counsel
again moved to prevent the prosecutor from mentioning the
letters because Fricke would “not be discussing anything that
relates to mental states at the time of the offense.” The court
once more granted the motion to prevent introduction of the
letters. Fricke testified that he had reviewed the medical
records from Fairbank’s previous stays at Mills and Peninsula
Hospitals, administered psychological tests to Fairbank,
reviewed psychological tests performed by other doctors,
reviewed Fairbank’s prior criminal history including the
Arlene G. assault, traveled to Fairbank’s hometown to inter-
view approximately thirteen acquaintances and family mem-
bers, and reviewed the trial transcripts from previous
witnesses in the Cheek trial. Additionally, because of Fair-
bank’s extensive drug use, Fricke stated that he “worr[ied]
about some kind of brain injury” and referred Fairbank to Dr.
Billing, who specialized in neuropsychological testing. Fricke
and Billing both concluded that Fairbank suffered from Anti-
social Personality Disorder (“ASPD”), a condition that Fricke
stated is “not a mental illness.” However, Fricke clarified that
there was a difference between the concepts of psychotic dis-
turbance, for which he was testing, and cocaine psychosis, the
general nature of which Clark had testified to earlier. Fricke
concluded that because Fairbank’s ASPD is aggravated when
10528 FAIRBANK v. AYERS
he is using drugs and part of a “loose” social structure, prison
would provide (and had provided in the past) the type of
structured environment in which Fairbank’s disorder could be
managed.

During cross-examination, the prosecution asked whether
Fricke’s psychological tests identified Fairbank’s “racial atti-
tudes.” The court sustained Fairbank’s trial counsel’s objec-
tion to that question. The prosecution then began asking about
a specific test Fricke administered, questioning whether Fair-
bank was trying to correctly answer the questions on that test.
When Fricke responded that Fairbank was “adequately moti-
vated,” the prosecution drew Fricke’s attention to the many
questions Fairbank either answered incorrectly or did not
attempt to answer. One of these questions was, “Who was
Martin Luther King?” to which Fricke responded that Fair-
bank had said, “A dead nigger, don’t like black people.” Fair-
bank’s trial counsel did not object.

In addition to the two experts, Fairbank’s trial counsel pre-
sented four lay witnesses: Fairbank’s father; a childhood
friend of Fairbanks, Steve Adkins; a neighbor of the Fairbank
family, Norton Morrison; and a friend of Fairbank’s mother,
Rebecca Lyon. These witnesses testified, among other things,
about the childhood abuse Fairbank suffered from his father
and the extensive alcohol use in his family.

In closing arguments, the prosecution highlighted the lack
of humanizing background evidence presented about Fair-
bank, the fact that Fairbank did not suffer from a mental
defect, and the lack of evidence of intoxication on the day of
the Cheek murder. Fairbank’s trial counsel responded by say-
ing he did not expect the jury to have sympathy for Fairbank,
but argued forcefully that a death sentence was unnecessary
due to Fairbank’s ability to be controlled in prison. Trial
counsel also emphasized mitigating evidence such as Fair-
bank’s abusive childhood and extensive drug use, consistently
explaining that the mitigation evidence did not undermine
 FAIRBANK v. AYERS 10529
Fairbank’s guilt but helped explain his actions. The jury
returned a death verdict. Fairbank then moved to withdraw his
guilty plea on the ground that it was involuntary because he
was intoxicated on alcohol and prescription medication at the
time he entered the plea. The court denied the motion.

Fairbank’s direct appeal in state court claimed, among
other things, ineffective assistance of trial counsel for advis-
ing Fairbank to plead guilty, ineffective assistance of counsel
during the sentencing phase, a Massiah violation for introduc-
tion of the Szymkiewicz letters, and prosecutorial misconduct
for eliciting Fairbank’s racial slur. The California Supreme
Court affirmed Fairbank’s conviction on the merits in a rea-
soned decision.

In 2000, Fairbank filed a federal habeas petition containing
his exhausted record-based claims and an exhaustion petition
in the California Supreme Court asserting new claims. In both
petitions, Fairbank requested discovery and an evidentiary
hearing. The district court stayed the federal case pending the
resolution of the state petition. In 2003, the California
Supreme Court summarily denied Fairbank’s petition on the
merits. Fairbank then filed an amended habeas petition in fed-
eral court to include his newly exhausted claims. The govern-
ment moved for summary judgment on the petition. Fairbank
opposed the motion, arguing he was entitled to discovery and
an evidentiary hearing before summary judgment would be
appropriate. The district court granted the government’s
motion for summary judgment, and Fairbank timely filed this
appeal.

We review a district court’s order to deny a petition for writ
of habeas corpus de novo. Estrada v. Scribner, 512 F.3d 1227,
1235 (9th Cir. 2008). We review a district court’s decision to
deny an evidentiary hearing for abuse of discretion. Id.

To obtain relief under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
10530 FAIRBANK v. AYERS
110 Stat. 1214, a state prisoner must show that the state
court’s decision (1) was contrary to clearly established federal
law as determined by the Supreme Court, (2) “involved an
unreasonable application of” such law, or (3) that it “was
based on an unreasonable determination of the facts” in light
of the record before the state court. Harrington v. Richter, ___
U.S. ___, No. 09-587, 2011 WL 148587, at *10 (Jan. 19,
2011) (quoting 28 U.S.C. § 2254) (internal quotation marks
omitted).

II

The district court correctly determined that Fairbank was
not entitled to habeas relief on his claim that his counsel was
constitutionally ineffective. To prevail on an ineffective assis-
tance of counsel claim, a petitioner must establish both that
counsel’s performance was deficient and that he was preju-
diced by the deficiency. Strickland v. Washington, 466 U.S.
668, 687-88 (1984). The test for deficiency is “whether coun-
sel’s assistance was reasonable considering all the circum-
stances.” Id. at 688. “Because of the difficulties inherent in
making the evaluation, a court must indulge a strong pre-
sumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. at 689 (internal quotation marks and citation omitted). The
test for prejudice in a capital case is “whether there is a rea-
sonable probability that, absent the errors, the sentencer . . .
would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695.

In reviewing a state prisoner’s habeas petition under
AEDPA, the “state court must be granted a deference and lati-
tude that are not in operation when the case involves review
under the Strickland standard itself.” Harrington, 2011 WL
148587, at *10. Under AEDPA, the petitioner must show that
the state court “applied Strickland to the facts of his case in
 FAIRBANK v. AYERS 10531
an objectively unreasonable manner.” Bell v. Cone, 535 U.S.
685, 698-99 (2002).

For a federal habeas court to grant an evidentiary hearing
on an ineffective assistance claim, however, a petitioner must
only show a “colorable claim of ineffective assistance.”
Schriro v. Landrigan, 550 U.S. 465, 468 (2007). Although the
standard required to obtain an evidentiary hearing is less strin-
gent than that required to prove a Strickland claim, AEDPA
deference still guides our decision. As the Supreme Court
explained:

In deciding whether to grant an evidentiary hearing,
a federal court must consider whether such a hearing
could enable an applicant to prove the petition’s fac-
tual allegations, which, if true, would entitle the
applicant to federal habeas relief. Because the defer-
ential standards prescribed by § 2254 control
whether to grant habeas relief, a federal court must
take into account those standards in deciding
whether an evidentiary hearing is appropriate. It fol-
lows that if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary
hearing.

Landrigan, 550 U.S. at 474 (citations and footnote omitted);
see also Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir.
1998) (“[A]n evidentiary hearing is not required on issues that
can be resolved by reference to the state court record.”
(emphasis omitted)).

Fairbank claims his trial counsel was ineffective for four
reasons: (1) failing to investigate and present mitigating evi-
dence; (2) presenting allegedly prejudicial and aggravating
information; (3) advising Fairbank to plead guilty after two
days of trial; and (4) portraying Fairbank in a negative light
in closing arguments.
10532 FAIRBANK v. AYERS
A

[1] The district court did not err in rejecting Fairbank’s
claim that his attorneys were ineffective for failing to investi-
gate and present mitigating evidence of his brain damage,
mental illness, substance abuse, childhood abuse and neglect,
and redeeming characteristics. As the district court properly
concluded, the record demonstrates that defense counsel satis-
fied their constitutional obligations.

[2] The undisputed record establishes that Fricke reviewed
Fairbank’s personal history carefully. He traveled to Fair-
bank’s home town and personally interviewed numerous wit-
nesses. Fricke reviewed Fairbank’s medical records,
conducted a psychological examination, and referred Fairbank
to a specialist for neurological testing. Based on the test
results, Fricke ruled out psychosis, mental illness, and neuro-
logic impairment. He concluded that Fairbank had Antisocial
Personality Disorder.

In his habeas petition, Fairbank alleges that a neuropsy-
chologist and a physician specializing in addiction medicine
disagree with the conclusions reached by Fricke. Fairbank’s
new experts, he alleges, believe that he was suffering from
brain damage at the time of the crime and that this damage
should have been apparent when Fricke conducted his review.
Fairbank also alleges that Fricke should have personally inter-
viewed Fairbank’s treating health care professionals, rather
than relying on medical records. If Fricke had done so, Fair-
bank alleges, he would have discovered additional mitigation
evidence.

[3] However, even assuming all the allegations are true,
Fairbank cannot prove a Strickland violation, because “[a]n
expert’s failure to diagnose a mental condition does not con-
stitute ineffective assistance of counsel, and [a petitioner] has
no constitutional guarantee of effective assistance of experts.”
Earp v. Cullen, 623 F.3d 1065, 1077 (9th Cir. 2010).
 FAIRBANK v. AYERS 10533
Fairbank’s claim may be easily distinguished from Caro v.
Woodford, 280 F.3d 1247 (9th Cir. 2002), in which we held
that counsel’s failure to investigate the potential for brain
damage constituted ineffective assistance of counsel. In Caro,
defense counsel wholly failed to investigate the potential
defenses or provide experts with the information necessary to
evaluate the petitioner’s alleged brain damage. Id. at 1254-55.
In contrast, counsel in this case provided the defense expert
with the information necessary to form an expert opinion, and
the expert did, in fact, investigate the potential defense. Later
disagreement by other experts as to the conclusions does not
demonstrate a violation of Strickland.

[4] In addition, in Caro, we emphasized that there was no
strategic reason not to introduce or investigate such evidence.
See id. at 1255. Here, in contrast, defense counsel made a
strategic decision to not place Fairbank’s mental state in play
to avoid the introduction of aggravating evidence. Such a stra-
tegic decision is accorded a high level of deference by review-
ing courts. See Strickland, 466 U.S. at 690 (“[S]trategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”);
see also Wong v. Belmontes, 130 S. Ct. 383, 386 (2009) (“[I]t
is necessary to consider all the relevant evidence that the jury
would have had before it if [trial counsel] had pursued the dif-
ferent path—not just the mitigation evidence [he] could have
presented, but also the . . . murder evidence that almost cer-
tainly would have come in with it.”); Silva v. Woodford, 279
F.3d 825, 846 (9th Cir. 2002) (“Given the strong possibility
that the introduction of certain types of mitigating evidence
by the defense could lead to damaging rebuttal evidence . . . ,
his counsel exercised reasonable judgment in refraining from
introducing any evidence whatsoever during the penalty
phase.”).

[5] In addition to claiming ineffective assistance for failing
to present evidence of his alleged brain damage and mental
defects, Fairbank alleges ineffective assistance due to trial
10534 FAIRBANK v. AYERS
counsel’s failure to present evidence of his substance abuse
and abusive childhood in order to help explain his actions on
the day of the crime. However, trial counsel fully investigated
Fairbank’s prior drug use and made a strategic decision to
avoid mental state evidence to prevent the prosecution from
referencing the Szymkiewicz letters, to gain credibility with
the jury, and to emphasize that Fairbank had admitted respon-
sibility for his crime. Additionally, evidence of Fairbank’s
drug use, propensity for addiction, and abusive childhood was
in fact presented to the jury through the testimony of Fricke,
Arlene G., and two other witnesses. Trial counsel further pre-
sented such mitigating evidence in his closing statement by
asserting that “drugs were a factor,” that “obviously . . . Fair-
bank is a drug addict,” and by emphasizing the role that child-
hood abuse played in Fairbank’s development. Further
introduction of such evidence would have been unnecessarily
cumulative and would have undermined trial counsel’s strat-
egy of admitting guilt and gaining credibility with the jury.
See Belmontes, 130 S. Ct. at 388 (trial counsel is not required
to present cumulative mitigating evidence); Babbitt v. Calde-
ron, 151 F.3d 1170, 1174 (9th Cir. 1998) (same).

[6] Fairbank argues that although the jury was presented
with this evidence, an expert should have been used to link
the childhood abuse to the possibility of brain damage and to
explain that Fairbank’s behavior during the homicide
reflected symptoms of cocaine psychosis. However, Clark tes-
tified generally about the effects of drug psychosis and the
role genetics play in susceptibility to addiction, and Fricke
testified about the role of environmental stimuli and genetics
in developing ASPD. Even though the experts did not explic-
itly make these correlations with respect to Fairbank, the jury
had enough information to evaluate the claims without expos-
ing Fairbank to the harmful Szymkiewicz letters. This is all
the law requires. See Belmontes, 130 S. Ct. at 388 (“[T]he
body of mitigating evidence . . . was neither complex nor
technical. It required only that the jury make logical connec-
tions of the kind a layperson is well equipped to make. The
 FAIRBANK v. AYERS 10535
jury simply did not need expert testimony to understand the
‘humanizing’ evidence; it could use its common sense or own
sense of mercy.”).

[7] Fairbank’s final reason for claiming ineffective assis-
tance based on the failure to present mitigating evidence is
trial counsel’s failure to present evidence about Fairbank’s
positive attributes. If trial counsel had attempted to provide
more humanizing attributes, prosecutors could have cross-
examined the character witnesses with questions about their
knowledge of Fairbank’s violent behavior, asked about their
knowledge of the heinous circumstances surrounding the
Cheek murder, and presented contrary evidence on rebuttal.
For example, the government’s cross-examination of defense
witness Lyon included questions such as “Would you have
predicted that defendant would have been capable of finding
a young woman off the street, a stranger, and sexually abusing
her, torturing her and stabbing her to death?” See also Bel-
montes, 130 S. Ct. at 388-89 (finding no Strickland violation
when trial counsel failed to introduce humanizing evidence
because of the negative evidence that would have been
thereby introduced). Furthermore, the presentation of such
evidence may have undermined the trial strategy of admitting
guilt and gaining credibility with the jury.

[8] In sum, the district court properly concluded based on
the record that summary judgment was appropriate on Fair-
bank’s claim that his counsel was ineffective for failing to
investigate and present mitigating evidence.

B

Fairbank’s second ineffective assistance claim stems from
trial counsel’s presentation of allegedly aggravating and prej-
udicial evidence. Fairbank contends that trial counsel’s
defense that Fairbank had ASPD constituted ineffective assis-
tance because it was inaccurate, was not presented as a miti-
gating factor, was inaccurately described in highly prejudicial
10536 FAIRBANK v. AYERS
terms, and overwhelmed any other mitigating evidence. Addi-
tionally, Fairbank alleges that trial counsel’s presentation of
defense witnesses who made damaging statements about Fair-
bank constituted ineffective assistance.

[9] The record refutes Fairbank’s claims that trial counsel
was deficient in this regard. Fricke’s testimony was generally
favorable to defendant, and any negative inferences were
based on a reasonable trial strategy of gaining credibility with
the jury to argue that Fairbank could be controlled in prison,
thereby making a death sentence unnecessary. For example,
trial counsel stated in his closing statement that “[j]urors
come to court . . . assuming that the defense attorneys are
going to try to minimize the situation, to try to, perhaps put
a white wash over what the defendant is and what he’s done.
We’re quite aware in this case that we’ve done the opposite.”

[10] Fricke’s testimony similarly demonstrated the attempt
to gain credibility, as he stated, “I see myself as trying to stay
in a neutral position to provide information . . . to the jury.”
Because the record demonstrates the strategic nature of any
allegedly prejudicial statements, the district court did not
abuse its discretion in denying Fairbank an evidentiary hear-
ing. See Landrigan, 550 U.S. at 474 (“[I]f the record refutes
the applicant’s factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an eviden-
tiary hearing.”); Strickland, 466 U.S. at 690.

C

[11] Fairbank’s third argument for claiming ineffective
assistance is that counsel failed to adequately investigate and
present evidence during the guilt phase to show that Fairbank
lacked the specific intent required for conviction of first
degree murder and the special circumstances allegations. Fair-
bank’s Strickland claim at the guilt phase must be limited to
the contention that trial counsel was ineffective only in advis-
ing petitioner to plead guilty. See Tollett v. Henderson, 411
 FAIRBANK v. AYERS 10537
U.S. 258, 266-67 (1973) (explaining that because a guilty plea
precludes a claim of constitutional violations prior to the plea,
petitioner’s sole avenue for relief is demonstrating that advice
of counsel to plead guilty was deficient); Lambert v. Blodgett,
393 F.3d 943, 979 (9th Cir. 2004) (same). Although the
record does not contain an explanation from trial counsel as
to why Fairbank was advised to plead guilty less than two
days into trial, it fully illustrates the logical and strategic rea-
sons for such a decision. Specifically, the guilty plea enabled
trial counsel to exclude most of the Szymkiewicz letters and
to cast Fairbank in a more sympathetic light, as evidenced by
trial counsel emphasizing Fairbank’s admission of guilt dur-
ing closing arguments. Because the record evidences the stra-
tegic nature of the decision, and therefore precludes habeas
relief, the district court did not abuse its discretion in denying
an evidentiary hearing on this claim. Landrigan, 550 U.S. at
474; Strickland, 466 U.S. at 690.

D

[12] Fairbank’s fourth and final ineffective assistance
claim utilizes brief portions of trial counsel’s closing argu-
ment to claim his trial counsel unreasonably failed to ask for
sympathy for Fairbank and emphasized the aggravating testi-
mony presented by Fricke. The record, however, shows that
trial counsel’s closing argument did not fall below the reason-
ableness standard required by Strickland. Even though at
times trial counsel did not paint Fairbank in the most sympa-
thetic light, “counsel cannot be deemed ineffective for
attempting to impress the jury with his candor and his unwill-
ingness to engage in ‘a useless charade.’ ” Florida v. Nixon,
543 U.S. 175, 192 (2004) (quoting United States v. Cronic,
466 U.S. 648, 656 n.19 (1984)).

[13] A bare allegation that defense counsel’s closing
should have more strongly emphasized certain arguments is
insufficient to overcome Strickland’s “presumption that coun-
sel’s conduct falls within the wide range of reasonable profes-
10538 FAIRBANK v. AYERS
sional assistance.” 466 U.S. at 689; see Davis v. Woodford,
384 F.3d 628, 651 (9th Cir. 2003) (holding that defense coun-
sel’s “unusual” strategy of being antagonistic to the jury in
closing argument did not violate Strickland).

III

[14] The district court properly held that there was no
Massiah violation in this case. Under Massiah v. United
States, 377 U.S. 201 (1964), a criminal defendant’s right to
counsel is violated when a state agent deliberately elicits an
incriminating statement outside the presence of the defen-
dant’s counsel. Id. at 206. To establish a Massiah violation,
a defendant must demonstrate both that the informant was act-
ing as a government agent and that the informant deliberately
elicited incriminating statements. United States v. Henry, 447
U.S. 264, 270 (1980). However, the rule applies even when
the defendant initiates the contact with the informant, if the
state “knowingly circumvent[s] the accused’s right to have
counsel present.” Maine v. Moulton, 474 U.S. 159, 176
(1985). A federal habeas court ruling on a Massiah claim
must also give the state court opinion the deference required
by AEDPA. 28 U.S.C. § 2254(d); Kuhlmann v. Wilson, 477
U.S. 436, 459-61 (1986).

Fairbank alleges that the state’s use of jailhouse informant
Szymkiewicz to obtain admissions from Fairbank regarding
facts of the crime, threats to witnesses, and other incriminat-
ing evidence violates his Sixth Amendment right to counsel
under Massiah. However, prior to Fairbank’s trial, the state
trial court held an evidentiary hearing on the Massiah claim
and determined Szymkiewicz was not acting as a state agent
because law enforcement officers had never asked him to
solicit information from Fairbank. In a later hearing, a differ-
ent judge again ruled that Szymkiewicz was not a state agent.
In his habeas declaration, Szymkiewicz now states that, “One
of the detectives told me they were looking for a murder
weapon, which I understood to be a request to ask Fairbank
 FAIRBANK v. AYERS 10539
about that matter. I therefore asked Fairbank about the subject
and he wrote me a note stating that the murder weapon was
a barbeque fork, and that his lawyers had it.” In light of
Szymkiewicz’s most recent testimony, Fairbank seeks an evi-
dentiary hearing on his Massiah claim.

[15] The district court correctly held that Fairbank did not
assert a colorable claim for habeas relief because even if
Szymkiewicz subjectively believed that the officer’s state-
ment as to the murder weapon was a request, this does not
constitute the requisite state involvement. See Hovey v. Ayers,
458 F.3d 892, 917 (9th Cir. 2006) (stating that informant’s
subjective belief that he may receive lenient treatment in
exchange for information does not amount to a promise or
deal by the government sufficient to make the informant a
state agent). Furthermore, because there has already been an
evidentiary hearing on this subject, wherein the trial court
heard testimony from five witnesses other than Szymkiewicz,
the district court did not abuse its discretion in determining
that the record testimony of these other witnesses outweighed
the recently recanted testimony of Szymkiewicz. See Landri-
gan, 550 U.S. at 474 (“[I]f the record refutes the applicant’s
factual allegations or otherwise precludes habeas relief, a dis-
trict court is not required to hold an evidentiary hearing.”).

IV

Fairbank alleges that the prosecutor committed misconduct
by eliciting evidence of Fairbank’s racial slur. On direct
appeal, the California Supreme Court rejected this claim and
held that, under California law, trial counsel’s failure to object
to the comment operates as a procedural bar and forecloses
the possibility of appeal. See People v. Fairbank, 16 Cal. 4th
1223, 1252 (1997) (citing Cal. Evid. Code § 353). “We must
follow the well-settled rule that ‘the independent state
grounds doctrine bars the federal courts from reconsidering
the issue in the context of habeas corpus review as long as the
state court explicitly invokes a state procedural bar rule as a
10540 FAIRBANK v. AYERS
separate basis for its decision.’ ” Jackson v. Giurbino, 364
F.3d 1002, 1006-07 (9th Cir. 2004) (quoting McKenna v.
McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995)).

To bar federal review, the state procedural rule must also
be adequate. That is, it must be “clear, consistently applied,
and well-established at the time of the petitioner’s purported
default.” Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir.
2002) (internal quotation marks and citation omitted). We
have held that California consistently applies its contempora-
neous objection rule when a party fails to object to the admis-
sion of evidence. See Garrison v. McCarthy, 653 F.2d 374,
377 (9th Cir. 1981); see also Melendez, 288 F.3d at 1125. On
direct review, the California Supreme Court determined that
defense counsel could have known the prosecutor’s question-
ing was likely to elicit the racial slur and probably could have
prevented the statement by objecting. See Fairbank, 16 Cal.
4th at 1252. Because a federal court sitting in habeas must
presume that this finding of fact is correct, see 28 U.S.C.
§ 2254(3), and because there is no clear and convincing evi-
dence to the contrary, we conclude that the California
Supreme Court applied an independent and adequate state
procedural rule that bars federal review of Fairbank’s pro-
secutorial misconduct claim.

Because Fairbank has defaulted his federal claim, for us to
be able to review it, Fairbank must “demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law.” See Coleman v. Thompson, 501 U.S. 722, 750
(1991); see also Franklin v. Johnson, 290 F.3d 1223, 1230-31
(9th Cir. 2002). To establish cause for a procedural default, a
petitioner must show that “some objective factor external to
the defense impeded counsel’s efforts to comply with the
State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986). We need not decide whether there is cause for the
default because we conclude that Fairbank has not shown the
requisite prejudice. The statement was never again referenced
in the trial, and race or racial animus was never advanced as
 FAIRBANK v. AYERS 10541
a factor in either Fairbank’s actions or his potential sentence.
As such, Fairbank has not shown that the statement “infec-
t[ed] his entire trial with error of constitutional dimensions.”
See Murray v. Carrier, 477 U.S. 478, 494 (1986) (quoting
United States v. Frady, 456 U.S. 152, 170 (1982) (internal
quotation marks omitted)).

V

[16] The combined effect of multiple errors may justify
habeas relief “if it renders a trial fundamentally unfair, even
where each error considered individually would not require
reversal.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir.
2007). However, because we hold that none of Fairbank’s
claims rise to the level of constitutional error, “there is noth-
ing to accumulate to a level of a constitutional violation.”
Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).

VI

In sum, the district court properly held that Fairbank was
not entitled to habeas relief. His counsel investigated the
available mitigation defenses and made strategic choices as to
evidence presentation. The Massiah claim fails for lack of
sufficient state involvement. We defer to the state court’s
determination that the prosecutorial misconduct claim was
procedurally barred. Because none of the underlying claims
rises to the level of a constitutional violation, there is no
cumulative error. The district court properly granted summary
judgment on the habeas petition.

AFFIRMED.