Raynard Cummings v. Michael Martel

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RAYNARD PAUL CUMMINGS, No. 11-99011
Petitioner-Appellant,
D.C. No.
v. 2:95-cv-07118-
CBM
MICHAEL MARTEL, Warden,
California State Prison at San
Quentin, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted
October 9, 2014—Stanford, California

Filed August 11, 2015

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Chief Judge
Thomas;
Partial Concurrence and Partial Dissent by Judge
O’Scannlain
2 CUMMINGS V. MARTEL

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Raynard
Cummings’s habeas corpus petition challenging his
conviction for first-degree murder and death sentence for
killing Los Angeles Police Officer Paul Verna.

Cummings alleged that the prosecution violated his due
process rights under Turner v . Louisiana, 379 U.S. 466
(1965), by calling as a witness a deputy who served as a
courtroom bailiff and security officer during a portion of
Cummings’s trial. The panel held that even under AEDPA’s
deferential review, the California Supreme Court erred in
determining that the bailiff, who told the jury that Cummings
had confessed to shooting Verna, was not a key prosecution
witness under Turner. The panel affirmed the district court’s
denial of relief on this claim because the California Supreme
Court’s determination that Cummings did not satisfy the
second Turner requirement – that the testifying deputy had
continuous and intimate contact with jurors – was neither
contrary to nor an unreasonable application of clearly
established federal law.

The panel granted a Certificate of Appealability on
Cummings’s claim that the prosecutor violated Batson v.
Kentucky, 476 U.S. 79 (1986), by exercising peremptory
strikes against two prospective African American jurors. The
panel concluded that the California Supreme Court did not

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CUMMINGS V. MARTEL 3

unreasonably apply Batson to the facts in determining that
Cummings did not establish that race was a substantial
motivating factor in the prosecutor’s decision to strike the
prospective jurors.

Affirming the district court’s denial of Cummings’s
ineffective assistance of counsel claim, the panel held that the
California Supreme Court had a reasonable basis to conclude
that Cummings was not prejudiced by his lawyers’
presentation of mitigation of evidence at the penalty phase of
his trial.

Chief Judge Thomas concurred in part and dissented in
part. He agreed with the majority that the Batson and
ineffective assistance claims should be denied, but dissented
from the conclusion that the due process claim must be
denied. He wrote that the California Supreme Court’s
decision to affirm the conviction cannot reasonably be
squared with Turner and Gonzales v. Beto, 405 U.S. 1052
(1972) (per curiam), in which the Supreme Court made clear
that a criminal defendant’s right to a fair trial is infringed
when the government solicits key testimony from a bailiff
who associated closely with the jury during the defendant’s
trial.

Judge O’Scannlain concurred in part, dissented in part,
and concurred in the judgment. He concurred in the opinion,
except as to Section I.A. He wrote separately to explain why
the California Supreme Court’s conclusion that the deputy
was not a “key witness” under Turner must be afforded
AEDPA deference.
4 CUMMINGS V. MARTEL

COUNSEL

K. Elizabeth Dahlstrom (argued), Research & Writing
Attorney, Sean K. Kennedy, Federal Public Defender,
Elizabeth Richardson-Royer, Deputy Federal Public
Defender, Office of the Federal Public Defender, Los
Angeles, California; Statia Peakhart, Los Angeles, California,
for Petitioner-Appellant.

Lance E. Winters (argued), Senior Assistant Attorney
General; Kamala D. Harris, Attorney General of California;
Dane R. Gillett, Chief Assistant Attorney General; A. Scott
Hayward, Deputy Attorney General, Los Angeles, California,
for Respondent-Appellee.
 CUMMINGS V. MARTEL 5

OPINION

McKEOWN, Circuit Judge:

Raynard Cummings was convicted of first-degree murder
and sentenced to death for killing Los Angeles Police Officer
Paul Verna. The California Supreme Court affirmed his
conviction on direct appeal. People v. Cummings, 850 P.2d 1
(Cal. 1993). It then denied his petitions for post-conviction
relief. The district court denied Cummings’s petition for a
writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

FACTUAL BACKGROUND

On June 2, 1983, Los Angeles Police Officer Paul Verna
pulled over an Oldsmobile for rolling through a stop sign.
During the traffic stop, one or more of the car’s occupants
shot Verna six times.

At Cummings’s trial, he did not dispute that he was one
of three occupants in the car when the shooting occurred. He
sat in the rear passenger seat, behind a friend, Kenneth Gay,
who was riding in the front seat. Cummings’s wife, Pamela,
was driving.

Both Gay and Cummings were charged with first-degree
murder. The government contended that Cummings shot
Officer Verna once, then passed the gun to Gay, who got out
of the car and fired five more shots. Cummings contested the
“two-shooter” theory, claiming that Gay fired all six shots.

Eyewitness accounts varied. Some witnesses lent
credence to the two-shooter theory, while others expressed
certainty that one person fired all six shots. Through forensic
6 CUMMINGS V. MARTEL

evidence and a crime scene reenactment, the prosecution
sought to demonstrate that the first bullet likely came from
Cummings’s perch in the back seat.

After nearly six months of trial proceedings, a courtroom
deputy named David La Casella overheard a conversation
between Cummings and Gay in their respective holding cells.
According to La Casella, Cummings told Gay that the bullet
described by the medical examiner as “number six” was the
“one I put in the m-----f-----”—meaning the victim, Verna.
The deputy was removed from his courtroom post and the
next court day testified to this exchange.

The jury convicted Cummings of first-degree murder.
After a recess, the penalty phase commenced. To support its
case for the death penalty, the prosecution introduced
evidence that Cummings possessed a “shank” while in jail
awaiting trial; participated in the robbery of a vacuum store;
and schemed to use poisoned postage stamps to kill Gay and
his wife, Robin Gay, to prevent them from testifying at his
trial.

The prosecution also tried to introduce aggravating
evidence related to Cummings’s incarceration in Delaware.
During that time, Cummings had altercations with two prison
guards and wrote a violent, profanity-laced letter that
expressed his desire to kill police officers. Following the
California Supreme Court’s decision in People v. Boyd,
700 P.2d 782 (Cal. 1985), the trial judge ruled that the
prosecution could not introduce this evidence as part of its
case-in-chief because the altercations and the letter were not
crimes. However, the court made clear that it would allow
the prosecution to introduce this evidence as rebuttal if
Cummings “open[ed] the door” during his mitigation case.
 CUMMINGS V. MARTEL 7

In light of this evidentiary ruling, Cummings’s lawyers
decided to present a “sterile” mitigation case. They told the
court that, for “tactical reasons,” they would “very carefully
ask [] witnesses not to get into” any subjects that would lead
to the admission of rebuttal evidence. They assured the judge
they would avoid any discussion of Cummings’s “personality
or character traits.” Instead, his lawyers limited mitigation
evidence to Cummings’s “biographical information,” such as
“where he was born, who his parents were, the fact they got
divorced, [and] what his schooling was.”

In the penalty phase, the defense team put on testimony
from three witnesses. A sheriff’s deputy testified about
violence in jail (presumably to demonstrate Cummings’s need
to protect himself with a shank). Then, Cummings’s older
brother Darrell related some of the hardships they faced
during their childhood. Darrell told the jury that their parents
had “knock-down, drag-out” fights, which once culminated
in their mother stabbing their father with a knife. He also
explained how their father frequently beat Raynard
“extremely hard” with a belt or extension cord. Darrell stated
that their mother began drinking to excess when her husband
left her, and he revealed that she had recently been in a
mental hospital. Finally, Cummings’s high school girlfriend
testified about his rocky relationship with his family before
his incarceration in Delaware.

During closing arguments in the penalty phase,
Cummings’s lawyers made only passing reference to
Cummings’s background and personal characteristics, instead
arguing that “lingering doubt” about whether Cummings had
shot Verna should lead the jury to choose a life sentence over
the death penalty.
8 CUMMINGS V. MARTEL

The jury voted for the death sentence, and the trial court
imposed this sentence.

PROCEDURAL BACKGROUND

In his appeal to the California Supreme Court, Cummings
alleged that La Casella’s testimony violated his due process
rights as defined in Turner v. Louisiana, 379 U.S. 466 (1965),
and that the prosecution’s use of peremptory strikes against
two black potential jurors violated People v. Wheeler,
583 P.2d 748 (Cal. 1978). The court rejected both claims.
Cummings, 850 P.2d at 32, 37–38. Justice Mosk dissented as
to the Wheeler claim. Id. at 72.

Cummings next filed a petition for habeas relief with the
California Supreme Court, alleging dozens of errors and
supported by over 200 exhibits. The court rejected each of
his claims as “untimely” and “lack[ing] merit.”

Cummings then filed a petition for habeas corpus in the
Central District of California on July 22, 1997. The court
stayed federal proceedings while Cummings filed additional
habeas claims with the California Supreme Court, including
a claim that he was denied effective assistance of counsel at
sentencing. When those claims were rejected, Cummings
filed an amended habeas petition on October 13, 1998. The
district court considered and denied each of Cummings’s
claims over the ensuing years, entering a final judgment
denying his petition on July 28, 2011.

The district court granted a Certificate of Appealability
for Cummings’s claims that La Casella’s testimony violated
his due process rights and that he was denied effective
assistance of counsel at his sentencing proceedings. We
 CUMMINGS V. MARTEL 9

ordered supplemental briefing on Cummings’s objection to
the peremptory strikes under Batson v. Kentucky, 476 U.S. 79
(1986), and now grant the Certificate of Appealability on that
issue.

STANDARD OF REVIEW

Cummings’s petition is governed by the Anti-Terrorism
and Effective Death Penalty Act (AEDPA) of 1996.
28 U.S.C. § 2254. We may grant his petition only if the
California Supreme Court’s decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or was “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” Id. § 2254(d).

This is a demanding standard. Cummings is not entitled
to relief if the state court is merely “incorrect.” Rather, we
may only grant his petition if the state court’s decision was
“unreasonable.” See Renico v. Lett, 559 U.S. 766, 773
(2010). The Supreme Court recently defined “unreasonable”
as a decision “so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011).

ANALYSIS

I. THE TURNER CLAIM—LA CASELLA’S TESTIMONY.

Cummings first alleges that the prosecution violated his
due process rights by calling as a witness Deputy David La
Casella, who served as a courtroom bailiff and security
10 CUMMINGS V. MARTEL

officer during a portion of Cummings’s trial. La Casella
testified that he overheard Cummings talking with Gay in
their holding cells during a break in trial proceedings. During
that conversation, Cummings stated that the bullet identified
by the medical examiner as “number six” was “the one I put
in the m-----f-----.” Based on the tone and circumstances of
the conversation, La Casella understood this statement as
Cummings’s confession to firing the first shot at Officer
Verna. Cummings argues the former bailiff’s testimony
violated due process because La Casella had undue influence
by virtue of his role as the jury’s “official guardian.”

Turner deals with a seldom-litigated principle of criminal
procedure, so we begin with an explanation of that case and
its lone sequel in the Supreme Court, Gonzales v. Beto,
405 U.S. 1052 (1972) (per curiam).

In Turner, two deputy sheriffs served both as courtroom
bailiffs and prosecution witnesses in a three-day death penalty
trial. 379 U.S. at 467. Before trial, the deputies had
investigated the murder, interviewed the defendant, and
accompanied him to the crime scene where they recovered a
cartridge clip from the murder weapon. Id. As part of the
deputies’ investigation, they also elicited incriminating
statements and a written confession from the defendant. Id.

At trial, the deputies assumed multiple responsibilities.
In addition to testifying about their investigation and the
defendant’s statements, they “drove the jurors to a restaurant
for each meal, and to their lodgings each night. The deputies
ate with them, conversed with them, and did errands for
them.” Id. at 468. This interaction fostered a “close and
continual association with the jurors,” in which the deputies
 CUMMINGS V. MARTEL 11

“freely mingled and conversed with the jurors in and out of
the courthouse during the trial.” Id.

The Supreme Court held that these circumstances—with
courtroom bailiffs moonlighting as star prosecution
witnesses—violated due process and subverted the “basic
guarantees of trial by jury.” Id. at 474. The Court explained
that a defendant is subject to “extreme prejudice” when a
witness against him has “a continuous and intimate
association” with members of the jury. Id. at 473.

Seven years after Turner, the Court in Beto again found
a due process violation where the prosecution’s case “rested
almost totally upon the testimony of the country sheriff,” who
also doubled as courtroom bailiff. 405 U.S. at 1052 (Stewart,
J., concurring).1 Before trial, the sheriff had dictated the
defendant’s written confession. Id. Then, during a one-day
trial, the sheriff walked jurors to lunch, ate with them in a
private room, and brought them soft drinks in the jury
room—all while he took the stand as the key substantive
witness against the defendant. Id. at 1053–54.

In both Turner and Beto, the Court based its due process
analysis on two factors. First, the Court asked whether the
bailiff was a “key witness[]” or testified to some
“uncontroverted or merely formal aspect of the case.”
Turner, 379 U.S. at 473. Second, the Court examined the

1
The Court in Beto was fractured: Two justices signed on to Justice
Stewart’s concurring opinion, and two justices dissented. 405 U.S. at
1052, 1056. The remaining four justices concurred only in the result and
provided no insight into their reasoning. Here, both parties treat Justice
Stewart’s concurrence as clearly established law. In any event, Justice
Stewart’s concurrence does not differ from Turner in any respect that is
dispositive to this case.
12 CUMMINGS V. MARTEL

relationship between bailiff and jury to determine whether the
official had a “continuous and intimate” relationship that
“foster[ed] the jurors’ confidence” in his testimony. Id. at
473–74; see also Williams v. Thurmer, 561 F.3d 740, 743 (7th
Cir. 2009) (per curiam) (explaining Turner’s two-factor test).
If both factors are met—that is, where a bailiff was a key
witness and had a continuous and intimate association with
the jury—the defendant has a due process claim under
Turner. See Cooper v. Calderon, 255 F.3d 1104, 1113 (9th
Cir. 2001) (rejecting Turner claim where second prong,
continuous and intimate contact, was not established).

Applying those principles, the California Supreme Court
held that events in this case were distinguishable from Turner
and Beto, and that Cummings’s “right to a fair trial” was not
“undermined by the admission of La Casella’s testimony” and
therefore did not violate due process. Cummings, 850 P.2d at
38. It first noted that La Casella had no role as an
investigating officer and was not identified as a witness prior
to trial. Id. The court held that LaCasella was “not the
principal or ‘key’ prosecution witness.” Id. The court then
characterized La Casella’s interaction with jurors as
“minimal” and “professional,” unlike the deputies in Turner
and Beto who interacted with jurors outside the courtroom
and in social settings. Id. at 37, 38.

The facts surrounding La Casella’s tenure as bailiff and
his trial testimony, elicited at an evidentiary hearing in state
court, are essentially uncontested. As a result, our inquiry
focuses on whether the California Supreme Court
unreasonably applied Turner to those facts—a mixed
question of law and fact properly analyzed under
§ 2254(d)(1). See Williams v. Taylor, 529 U.S. 362, 385–90
(2000).
 CUMMINGS V. MARTEL 13

Under § 2254(d)(1), we must determine whether the
California Supreme Court’s opinion “resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States.” (emphasis added). The
“unreasonable application” standard therefore applies to the
state court’s ultimate decision, not to components of its legal
reasoning. See LaCaze v. Warden La. Corr. Inst. for Women,
645 F.3d 728, 734 (5th Cir. 2011) (“We review the state
court’s ‘ultimate decision’ for unreasonableness.” (citation
omitted)).

Because Turner only applies where the testifying deputy
was both a key witness and had continuous and intimate
contacts with jurors, the California Supreme Court’s
reasonable resolution of either prong suffices.

A. LA CASELLA’S TESTIMONY.

The threshold inquiry under Turner turns on the
significance of the witness’s role at trial. The California
Supreme Court concluded that La Casella “was not the
principal or ‘key’ prosecution witness” and therefore did not
come within the ambit of Turner. Cummings, 850 P.2d at 38.
The trial court made no factual findings as to the significance
of La Casella’s testimony.

Turner is not limited to a case where the testifying bailiff
is the “principal” or sole witness to a crime—or, as the
dissent framed it, a witness “whose testimony is absolutely
necessary to establish guilt.” O’Scannlain Partial Dissent at
43. The dissent mistakenly elevates “key” witness to linchpin
witness. Instead, the bailiff need only be a “key” witness
whose credibility is at issue, as opposed to a witness whose
14 CUMMINGS V. MARTEL

testimony is “confined to some uncontroverted or merely
formal aspect of the case for the prosecution.” Turner,
379 U.S. at 473; see Helmick v. Cupp, 437 F.2d 321, 322 (9th
Cir. 1971) (per curiam) (declining to find Turner violation
where the deputy’s testimony “did not concern the crime
itself but was directed to matters about which there was no
real issue—i.e., the authenticity of the signature on Helmick’s
confession and the victim’s age”).

Here, La Casella did not testify about an uncontested
issue or a matter of administrative housekeeping. Rather, he
told the jury that Cummings had confessed to shooting
Officer Verna. This revelation directly contradicted
Cummings’s defense. Cummings’s confession to pulling the
trigger ranks as “probably the most probative and damaging
evidence that can be admitted against him.” Arizona v.
Fulminante, 499 U.S. 279, 296 (1991) (citation omitted).
What could be more central or “key” to the case than a
confession by Cummings that he shot the victim?

In closing arguments, the prosecutor repeatedly
hammered home La Casella’s testimony and labeled him
“perhaps the most important witness in this case.” The
prosecutor was not exaggerating. He went on to tell the jury,
“His testimony alone should lead you to convict this man of
murder with special circumstances.” Cf. United States v.
Brandyberry, 438 F.2d 226, 227 (9th Cir. 1971) (noting that
“the testimony of one witness entitled to belief is sufficient to
convict”).

The government argues that La Casella was not a key
witness because other evidence showed that Cummings shot
the victim. It points out that five other witnesses testified to
self-incriminating statements made by Cummings. But La
 CUMMINGS V. MARTEL 15

Casella’s testimony stood out because it came from a reliable
source and gelled with the prosecution’s theory of the
shooting sequence—that Cummings fired the first shot from
the back seat and then handed the gun to Gay, who stepped
out of the car and fired the final five bullets. Cummings’s
other self-incriminating statements—relayed to the jury by
sheriff’s deputies and jailhouse informants—were either
vague on this point or contradicted the prosecution’s theory
of the case. Cummings, for example, purportedly bragged
that he “put six” in the victim. To be sure, at least one
eyewitness testified that the person in the back seat fired the
first shot; other witnesses contradicted that version of events.
At any rate, the inquiry here is not whether other evidence
also supports the verdict. Under Turner, the question is
whether a testifying bailiff is a “key” witness, not the only
witness.

Turner does not require, as the California Supreme Court
wrote, that the bailiff be the “principal” prosecution witness.
Cummings, 850 P.2d at 38. Even under AEDPA’s deferential
standard of review, it is hard to credit the court’s application
of Turner’s first prong. This error is not dispositive,
however, because Turner requires both a key witness role and
a special relationship with the jury.

B. LA CASELLA’S CONTACTS WITH JURORS.

We now turn to the heart of the Turner analysis: whether
La Casella had continuous and intimate association with
jurors, such that his words had “undue credence” or “undue
weight,” creating “an aura of probable prejudice.” Helmick,
437 F.2d at 322–23 (describing Turner’s second prong).
16 CUMMINGS V. MARTEL

The trial judge held an evidentiary hearing on La
Casella’s contacts with jurors and admitted his testimony
after concluding he “probably has one of the most minimal
contacts and certainly isn’t the type of bailiff that gets
involved in talking and kidding and joking with the
jurors. . . .” On appeal, the California Supreme Court
described the trial court’s ruling: La Casella’s “association
with the jurors was so minimal and so professional that the
probative value of his testimony outweighed any prejudice to
Cummings from his status.” Cummings, 850 P.2d at 37. The
court agreed with this assessment, holding that La Casella’s
testimony did not violate Turner because he “had relatively
little direct contact with members of the jury and was
promptly relieved of his courtroom duties when he became a
witness.” Id. at 38. The jury was also “admonished” to judge
all witnesses on the same basis and to accord “no greater
weight . . . to La Casella because he had been a deputy in the
court.” Id.

We give AEDPA deference to this determination, despite
our conclusion with respect to the key witness issue.2 Unlike

2
Chief Judge Thomas’s dissent sidesteps AEDPA and reviews Turner’s
special relationship prong de novo because, in his view, the California
Supreme Court improperly layered a prejudice-balancing test on top of the
Turner inquiry. See Thomas Partial Dissent at 38. A close look at the
record reveals the source of this misapprehension of the court’s opinion.
In state court, Cummings based his challenge on both state evidentiary and
constitutional grounds. At the outset of its analysis, presumably in a nod
to Cummings’s claim under California Evidence Code § 352, the
California Supreme Court stated that “the probative value of [La
Casella’s] testimony outweighed any prejudice to Cummings.” 850 P.2d
at 37. Significantly, however, the California Supreme Court specifically
framed the inquiry as one of due process, not a mere evidentiary issue;
quoted extensively the relevant standards from Gonzalez and Beto; and
carefully distinguished Cummings’s case with respect to both prongs of
 CUMMINGS V. MARTEL 17

cases where no deference is owed because a claim hinges on
a state court’s “antecedent unreasonable application of federal
law,” the contacts requirement in Turner is independent of the
key witness requirement and stands on its own. The Supreme
Court highlighted the difference:

When a state court’s adjudication of a claim is
dependent on an antecedent unreasonable
application of federal law, the requirement set
forth in § 2254(d)(1) is satisfied. A federal
court must then resolve the claim without the
deference AEDPA otherwise requires.

Panetti v. Quarterman, 551 U.S. 930, 953 (2007).

In Quarterman, Texas courts misapplied Ford v.
Wainwright, 477 U.S. 399, 409–10 (1986), which prohibits
states from executing death-row inmates who are insane.
Specifically, the state court unreasonably failed to provide the
defendant with “adequate means by which to submit expert
psychiatric evidence” via an evidentiary hearing.
Quarterman, 551 U.S. at 948. De novo review was warranted
because the state court’s legal evaluation was based on an
incomplete set of facts.

In contrast, our case is different because Turner sets out
two independent lines of inquiry. The question of whether La
Casella had intimate and continuous contacts with the jury is
not “dependent” on the question of whether he was a key
witness. One conclusion is not tied to the other. Bound by

Turner. Id. at 37–38. The California Supreme Court squarely held:
“Neither defendant’s right to a fair trial, nor his right to jury trial was
undermined by the admission of LaCasella’s testimony.” Id. at 38.
18 CUMMINGS V. MARTEL

§ 2254(d)(1), we ask whether California’s application of
Turner’s second requirement was “contrary to, or involved an
unreasonable application of, clearly established Federal law.”

La Casella served as a uniformed deputy for 57 days of
Cummings’s six-month jury selection and murder trial. La
Casella’s tenure was split. He served as a courtroom bailiff
during jury selection, and then was a backup bailiff who sat
in the back of the courtroom and provided security at trial.

During the long-running jury selection, La Casella was
one of two courtroom bailiffs over three months when jurors
were individually questioned regarding their death penalty
views. La Casella handed excused jurors tickets that
indicated they were free to leave, directed prospective jurors
to their seats, and greeted jurors.

At the state court evidentiary hearing, La Casella testified
that he did not socialize or “chit-chat” with jurors or potential
jurors. The roughly two dozen times jurors asked La Casella
a question, he usually asked them to write it down and passed
the note along to the judge.

During trial, La Casella was reassigned to courtroom
security duty. In this capacity, La Casella sat in the back of
the courtroom and “ke[pt] an eye” on the audience,
defendants Cummings and Gay, and hallway traffic. He
continued to have some—albeit diminished—contact with
jurors. Specifically, La Casella took notes from jurors on two
occasions and responded to jurors who greeted him. He also
unlocked the jury room three times when jurors were present.

Based on this record, the California Supreme Court’s
conclusion that La Casella’s association with the jury was
 CUMMINGS V. MARTEL 19

“clearly distinguishable” from the deputies in Turner and
Beto is not unreasonable. In Turner, the deputies drove jurors
to restaurants for each meal and to their lodgings each night,
did errands for them, and “freely mingled and conversed with
the jurors”—allowing the deputies to “renew old friendships
and make new acquaintances among the members of the
jury.” 379 U.S. at 468, 473; see also Beto, 405 U.S. at 1053
(sheriff walked jurors to lunch, ate with them in a private
room, and brought them soft drinks in the jury room); Tong
Xiong v. Felker, 681 F.3d 1067, 1077 (9th Cir. 2012)
(emphasizing the “continuous” and “intimate” nature of the
contacts in Turner). Here, by contrast, the trial judge made
a factual finding that La Casella had “minimal contacts” and
didn’t “get[] involved in talking and kidding and joking with
the jurors”—a finding that we presume is correct, and which
Cummings offers no reason to doubt. So far as the record
discloses, La Casella did not dine, socialize, or otherwise
engage with jurors outside the context of official court
matters.

Cummings argues that the California Supreme Court
erred by failing to give appropriate weight to the length of La
Casella’s 57-day tenure as bailiff. But as the California
Supreme Court noted, La Casella had “relatively little direct
contact with members of the jury . . . .” Cummings, 850 P.2d
at 38 (emphasis added). The bulk of La Casella’s 57 days in
the courtroom came during extended voir dire and included
tasks such as handing tickets to excused jurors and thanking
them for their service—interactions, in other words, with
venire members who never sat on Cummings’s jury.

More broadly, Cummings argues that even if La Casella
did not socialize with jurors, he was the jury’s “official
guardian.” Cummings urges that Turner requires no more,
20 CUMMINGS V. MARTEL

pointing to its statement that the bailiff-juror “relationship
was one which could not but foster the jurors’ confidence in
those who were their official guardians during the entire
period of the trial.” 379 U.S. at 474.

In no way does Turner categorically bar testimony from
any law enforcement officer who has served as bailiff during
jury selection. Indeed, its two-prong analysis provides a
foundation for determining, on a case-by-case basis, whether
a bailiff’s testimony results in a due process violation. As the
Seventh Circuit noted in a similar habeas case, Turner “did
not say how many or what types of associations would trigger
due-process concerns,” making the case susceptible to a
“range of reasonable interpretations.” Thurmer, 561 F.3d at
745. La Casella’s limited role hardly casts him as the jury’s
shepard or guardian. And once the jury was selected, he had
minimal interaction with members of the jury. We cannot say
the California Supreme Court unreasonably read Turner to
require more than purely professional, arm’s-length
encounters, even if those encounters were spread over a long
trial. See Cooper, 255 F.3d at 1113 (rejecting Turner claim
in part because testifying bailiff was “never alone” with jury
and “was not singled out as ‘trustworthy’ to enter the private
realm of the jury room during deliberations” (citing United
States v. Pittman, 449 F.2d 1284, 1286 (9th Cir. 1971) (per
curiam)).

In sum, this case is not “materially indistinguishable from
a relevant Supreme Court precedent.” Williams, 529 U.S. at
405. The California Supreme Court’s denial of Cummings’s
Turner claim was not unreasonable.
 CUMMINGS V. MARTEL 21

II. T HE B ATSON C LAIM —T HE P ROSECUTOR ’ S
PEREMPTORIES.

As an initial matter, the district court did not certify for
appeal Cummings’s claim that the prosecutor violated Batson
v. Kentucky, 476 U.S. 79 (1986), by exercising peremptory
strikes against two black prospective jurors. To warrant a
Certificate of Appealability, Cummings must make a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). The Supreme Court has instructed
that this is a low hurdle, requiring only that “jurists of reason
could disagree with the district court’s resolution of [the
petitioner’s] constitutional claims or that jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003) (reversing Fifth Circuit and
granting COA on Batson claim). Cummings has met this
threshold burden.

Batson’s touchstone is purposeful discrimination:

A Batson challenge has three steps: first, the
defendant must make a prima facie showing
that a challenge was based on race; second,
the prosecution must offer a race-neutral basis
for the challenge; and third, the court must
determine whether the defendant has shown
purposeful discrimination.

Cook v. LaMarque, 593 F.3d 810, 814 (9th Cir. 2010)
(quotation marks and citations omitted). In this case, only
Batson’s third step—purposeful discrimination—is in
dispute. This step requires a showing that race was a
“substantial motivating factor” in the prosecutor’s decision to
22 CUMMINGS V. MARTEL

strike a prospective juror. Id. at 815. Cummings bears the
burden of proving discriminatory intent. Johnson v.
California, 545 U.S. 162, 170–71 (2005).

At trial, Cummings’s counsel challenged the prosecutor’s
use of peremptories against two black prospective jurors,
Clarence Broussard and Leon Passmore, under People v.
Wheeler, 583 P.2d 748 (Cal. 1978).3 The trial court
conducted a hearing and denied both motions, concluding,
“[T]here has been an effective showing of why the
peremptories were utilized in this case, and there has been no
showing of group bias.” The trial court’s credibility finding
is presumed correct and is entitled to “great deference,”
Batson, 476 U.S. at 98 n.21, because “evaluation of the
prosecutor’s state of mind based on demeanor and credibility
lies peculiarly within a trial judge’s province,” Hernandez v.
New York, 500 U.S. 352, 365 (1991) (plurality opinion)
(quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)).

The California Supreme Court affirmed the trial court’s
decision, holding that the “prosecutor adequately justified his
actions.” Cummings, 850 P.2d at 32. The district court denied
Cummings’s habeas petition on the Batson claim.

Once again, under § 2254(d)(1), we consider whether the
California Supreme Court unreasonably applied Batson to the
facts here. Cummings says that our review should be de novo
because the California Supreme Court failed to engage in a
thorough analysis at Batson’s step three and instead “merely

3
Wheeler is California’s equivalent to, and the state-law precursor of,
Batson. Cummings “preserved his federal constitutional claim because a
Wheeler motion serves as an implicit Batson objection.” Crittenden v.
Ayers, 624 F.3d 943, 951 n.2 (9th Cir. 2010).
 CUMMINGS V. MARTEL 23

recited the reasons advanced by the prosecutor.” That
approach is incorrect: § 2254(d) applies even where the state
court “failed to undertake any meaningful inquiry into direct
or circumstantial evidence of the prosecutor’s intent in
striking the jurors.” Cook, 593 F.3d at 815–16 & n.2. Even
if the California Supreme Court had said nothing at all, and
issued only a summary denial, § 2254(d) would apply. See
Harrington, 562 U.S. at 98. Of course that was not the case
here.

Turning to the merits, we consider the California Supreme
Court’s determination in light of the prosecutor’s use of a
peremptory strike against two of the African American
potential jurors.4 To aid in the task of divining a prosecutor’s
intent, we employ comparative juror analysis—that is,
“‘side-by-side comparisons’ of the African American
panelists who were struck and white panelists who were
allowed to serve.” Cook, 593 F.3d at 815 (citing Miller-El v.
Dretke, 545 U.S. 231, 241 (2005)).

A. CLARENCE BROUSSARD.

The prosecutor offered a litany of reasons for striking
Broussard from the jury pool—from Broussard’s view on the
death penalty to his brother’s prior run-in with the law.

4
At the 11th hour in this appeal, Cummings argued in his reply brief that
the prosecutor racially profiled another black juror who was dismissed for
cause. The racial profiling argument was forfeited, because Cummings
never made that argument to the California Supreme Court, the district
court, or in his opening brief here. United States v. Scott, 705 F.3d 410,
415 (9th Cir. 2012) (deeming an argument forfeited for failure to raise it).
24 CUMMINGS V. MARTEL

On questioning, Broussard admitted that he had voted
against the death penalty in a 1976 California referendum and
said he would do so again because he did not believe it
deterred crime. Striking a juror who opposes the death
penalty, even one who promises to apply the law impartially,
is a valid and non-pretextual reason for using a peremptory
challenge. See, e.g., Crittenden, 624 F.3d at 952 (noting that,
in death penalty case, prosecutor exercised most of 26
peremptory strikes against jurors “disinclined from a
philosophical standpoint to impose capital punishment”).

The record also revealed that Broussard’s brother was
tried and convicted of robbery in Los Angeles County five
years earlier—by the same District Attorney’s Office that
prosecuted Cummings. The California Supreme Court surely
was not unreasonable to view this reason as non-pretextual.
The coincidence of having the same prosecutor’s office at the
helm goes beyond having a relative who was convicted of a
crime, a circumstance that in itself has justified the use of a
peremptory strike. See Murray v. Groose, 106 F.3d 812, 815
(8th Cir. 1997) (upholding strike of potential jurors whose
“relatives . . . had been charged with or convicted of crimes,”
which led prosecutor to believe “that they would be
‘defendant’s jurors’”).

Cummings claims that the coincidence rationale is
pretextual because the prosecutor failed to strike another
white juror, even though that juror’s brother similarly was
arrested for felony marijuana possession. But that juror
supported the death penalty, which distinguished him from
Broussard. Any comparison between the two jurors is
unilluminating.
 CUMMINGS V. MARTEL 25

Finally, the prosecutor said Broussard gave him “dirty
looks” in the courtroom. This is also a valid reason for
dismissing a potential juror. Burks v. Borg, 27 F.3d 1424,
1429 (9th Cir. 1994) (noting that prosecutors may “take into
account tone, demeanor, facial expression” in exercising
peremptories).

Taken together, these race-neutral reasons justified the
prosecutor’s decision to strike Broussard.

Cummings also argues that two other reasons cited by the
prosecutor were racially tinged and revealed the prosecutor’s
true, discriminatory intent. The prosecutor made passing
reference to a potential friendship among three black jurors
and to Broussard’s own statements on race. During voir dire,
Broussard said, “I would be less than honest if I said I was
not aware that we are trying two black individuals, therefore
I was going to make sure that we are fair in terms of the
evidence as presented against those individuals.” Broussard
also revealed that he had been “victimized by racial prejudice
being born and raised in this town” and added: “It has had an
impact on me in terms of the criminal justice system.”

Although these reasons touch on race, the record does not
show that the strike was “based on” race or stereotyping.
Hernandez, 500 U.S. at 375 (O’Connor, J., concurring) (“No
matter how closely tied or significantly correlated to race the
explanation for a peremptory strike may be, the strike does
not implicate the Equal Protection Clause unless it is based on
race.”). Broussard made affirmative statements indicating
potential bias, which is a far cry from when a prosecutor
assumes a black juror will be partial to a black defendant.
Tolbert v. Gomez, 190 F.3d 985, 989 (9th Cir. 1999)
(upholding peremptory of juror who believed the criminal
26 CUMMINGS V. MARTEL

justice system discriminates against minorities and noting that
“[c]hallenging a prospective juror on the basis of his
expressed opinions about the judicial system does not violate
Batson.”).

Viewed in totality, we have little difficulty holding that
the California Supreme Court did not unreasonably uphold
the prosecutor’s strike of Broussard.

B. LEON PASSMORE.

The California Supreme Court, over the dissent of Justice
Mosk, also upheld the prosecutor’s decision to strike Leon
Passmore, primarily because Passmore lived close to the
crime scene and may have known trial witnesses. Cummings,
850 P.2d at 32.

Passmore testified he had lived in West Lakeview
Terrace, near the site of the murder, for eleven or twelve
years. He also worked at a local high school and testified that
if any students were called as witnesses he might know them.

Residency can be a valid reason for exercising a
peremptory strike. See Stubbs v. Gomez, 189 F.3d 1099, 1106
(9th Cir. 1999) (recognizing that “residence could be a
race-neutral factor when applied to a specific juror’s
suitability to sit in a particular case”). But was Passmore’s
residency a pretext for discrimination, as Cummings alleges?
To support pretext, Cummings points to two venire members
who, like Passmore, lived in Lakeview Terrace yet were not
struck by the prosecutor.

Significantly, the first comparative juror lived in East
Lakeview Terrace—“away” from West Lakeview Terrace
 CUMMINGS V. MARTEL 27

where Passmore lived and the shooting occurred.5 The
second venire member, who also lived in Lakeview Terrace,
never sat in the jury box, so the prosecutor had no need or
opportunity to use a peremptory against her.

The California Supreme Court was reasonable in crediting
the prosecutor’s residency rationale, given the total lack of
proof that similarly situated jurors were treated differently.
See Cook, 593 F.3d at 817 (“Because no similarly situated
white jurors were permitted to serve, the evidence indicates
this justification was legitimate and not pretextual.”).

Cummings’s habeas petition under Batson was properly
denied.

III. THE STRICKLAND CLAIM—CUMMINGS’S COUNSEL.

The California Supreme Court summarily denied
Cummings’s petition alleging ineffective assistance of
counsel during the penalty phase of his trial. To prevail under
AEDPA, Cummings must demonstrate that there was “no
reasonable basis for the state court to deny relief” under the
standard set forth in Strickland v. Washington, 466 U.S. 668
(1984). Harrington, 562 U.S. at 98. Because the California
Supreme Court had a reasonable basis to conclude that
Cummings was not prejudiced by his lawyers’ presentation of
mitigation evidence at the penalty phase, “we [] need not

5
As Cummings acknowledged on appeal, this juror himself may have
been black. If true, this is yet another reason why he is not a proper
subject of comparative juror analysis.
28 CUMMINGS V. MARTEL

reach [Strickland’s] performance prong.” See Wharton v.
Chappell, 765 F.3d 953, 975 (9th Cir. 2014).6

In Harrington, the Supreme Court stressed the deference
permeating federal habeas review of ineffective assistance
claims. It pointed out that “[t]he standards created by
Strickland and § 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly so.”
562 U.S. at 105 (internal quotation marks and citations
omitted). The multiple layers of deference create a standard
that is “difficult to meet,” and “even a strong case for relief
does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102. Rather, a “state court’s
determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the decision.” Id. at 101 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

The crux of Cummings’s ineffective assistance claim is
that his counsel’s presentation of mitigating evidence during
the penalty phase did not adequately detail the difficulties he
experienced as a child. During state habeas proceedings,
Cummings’s counsel prepared a “social history report” that
detailed his abusive upbringing and eventual descent into
drug abuse and violent crime.7 Cummings argues that if the

6
In light of this conclusion, we do not address whether Cummings’s
alternative request for an evidentiary hearing on his counsel’s performance
is barred by Cullen v. Pinholster, 131 S. Ct. 1388 (2011).
7
The government asserts we cannot consider this evidence because it
was contained in a social history report prepared during habeas
proceedings, and the report itself is inadmissible hearsay. The report,
however, was not prepared to serve as admissible evidence. Rather, it
illustrates what mitigation evidence would have been available to a lawyer
 CUMMINGS V. MARTEL 29

jury had been exposed to the contents of this report, at least
one juror may have been persuaded to choose life over death.
The California Supreme Court had a reasonable basis to
conclude otherwise.

The social history report was largely cumulative of
testimony that was introduced during penalty phase
proceedings. For example, Cummings asserts that the jury
did not learn about the extent of the violence in his
household. His brother Darrell, however, testified that
Raynard was subject to “extremely hard” beatings involving
extension cords and belts. He also told the jury that their
parents regularly had “knock-down, drag-out” fights that
sometimes ended with their parents beating one another with
household objects. The jury likewise heard Darrell testify
that their mother had substance abuse issues and spent time
in a mental hospital. The social history report contains more
extensive recitation of her history of drug use, alcohol abuse,
and psychiatric hospitalizations, but these details would not
have changed the narrative of Cummings’s upbringing in any
meaningful way.

To the extent the social history report offered mitigating
evidence that was not cumulative, it is not compelling. The
report notes that Cummings’s mother drank alcohol while
pregnant. Although evidence that a defendant suffers from

who conducted a reasonable investigation into Cummings’s life history.
Approving of the use of just such a report in Wiggins v. Smith, the
Supreme Court instructed that we must “evaluate the totality of the
evidence—‘both that adduced at trial, and the evidence adduced in the
habeas proceeding[s].’” 539 U.S. 510, 536 (2003) (quoting Williams,
529 U.S. at 397–98). The social history report was properly presented to
the California Supreme Court during habeas proceedings, so we consider
its contents.
30 CUMMINGS V. MARTEL

fetal alcohol syndrome may have a significant mitigating
effect, Rompilla v. Beard, 545 U.S. 374, 392 (2005),
Cummings does not allege that he suffered from this ailment.
Cf. Schriro v. Landrigan, 550 U.S. 465, 480–81 (2007)
(describing defendant’s assertion that he was “exposed to
alcohol and drugs in utero, which may have resulted in
cognitive and behavioral deficiencies” as “weak” mitigation
evidence). Cummings also points out that the jury never
learned that his brother was sexually abused. While evidence
that a defendant was sexually abused can be a “powerful”
mitigating factor, Wharton, 765 F.3d at 977, the fact that
Cummings’s brother was sexually abused lacks the same
force.

The report details some evidence that calls into question
Cummings’s mental well-being. School records indicate that
Cummings exhibited symptoms of trauma in his home.
While incarcerated in his early twenties, Cummings exhibited
bizarre behavior such as spreading feces on the walls of his
prison cell. However, a pre-trial psychiatric evaluation
yielded no conclusions that his lawyers saw fit to use as
evidence at trial,8 and even at this stage of the proceedings,
Cummings does not claim that he suffers from a mental
illness. This evidence of mental instability adds little to his
claims of prejudice.

Even if testimony about certain aspects of the social
history report would have had some mitigating effect, this
strategy would have triggered overwhelming aggravating
evidence. See Wong v. Belmontes, 558 U.S. 15, 26 (2009)
(per curiam) (noting that a “reviewing court must consider all
the evidence—the good and the bad—when evaluating

8
The notes from this evaluation appear to have been lost.
 CUMMINGS V. MARTEL 31

prejudice”). Had Cummings’s counsel gone beyond a
“sterile” life history presentation, the prosecution could have
countered with evidence that Cummings assaulted two prison
guards and wrote a letter announcing his intention to shoot
“pigs” eighteen months before Verna’s murder.

Although the prison assaults are relatively minor
aggravating factors, introduction of the letter would have
been devastating to Cummings’s defense. Cummings wrote:
“[I]f I got to steal or kill for what I want, I will do that . . . I
might die, but the pig – one pig or two – is coming with me,
and there will be funerals on both sides this time . . . I will
always hate pigs, the man, the system, and any White, Black
or whatever who is on that side. I have a bullet for that m-----
f-----, too, if he gets in my way.” This manifesto would not
only have negated sympathy generated by tales of
Cummings’s troubled upbringing, it also would have
undermined any “lingering doubt” about his willingness to
shoot a police officer.

The mitigating effect of the evidence that the jury did not
hear was limited in scope and would have opened the door to
inflammatory and prejudicial aggravating evidence. The
California Supreme Court had a “reasonable basis” to
conclude that Cummings failed to demonstrate prejudice as
a result of his counsel’s penalty phase presentation of
evidence. We affirm the district court’s denial of
Cummings’s habeas petition as to his ineffective assistance of
counsel claim.

CONCLUSION

Cummings’s petition for habeas relief is DENIED.
32 CUMMINGS V. MARTEL

THOMAS, Chief Judge, concurring in part and dissenting in
part:

I agree with the majority that Raynard Cummings’s equal
protection and ineffective assistance of counsel claims should
be denied. I respectfully dissent, however, from the
conclusion that Cummings’s due process claim must also be
denied. The Supreme Court made clear in Turner v.
Louisiana, 379 U.S. 466 (1965), and Gonzales v. Beto,
405 U.S. 1052 (1972) (per curiam), that a criminal
defendant’s right to a fair trial is infringed when the
government solicits key testimony from a bailiff who
associated closely with the jury during the defendant’s trial.
Because that is precisely what occurred during Cummings’s
trial, the California Supreme Court’s decision to affirm his
conviction, People v. Cummings, 4 Cal. 4th 1233 (1993),
cannot reasonably be squared with Turner and Beto. I would
therefore grant Cummings’s habeas petition.

I

Bailiffs play an important role during criminal trials by
maintaining order inside the courtroom and ensuring the
safety of jurors and court officers. But when they step
beyond that traditional role by testifying against the accused,
their competing interests may deprive the defendant of due
process.

Justice Stewart highlighted this danger in Beto, focusing
on “the great prejudice inherent in the dual role of jury bailiff
and key prosecution witness.” 405 U.S. at 1055 (Stewart, J.,
concurring). He explained:
 CUMMINGS V. MARTEL 33

Our adversary system of criminal justice
demands that the respective roles of
prosecution and defense and the neutral role
of the court be kept separate and distinct in a
criminal trial. When a key witness against a
defendant doubles as the officer of the court
specifically charged with the care and
protection of the jurors, associating with them
on both a personal and an official basis while
simultaneously testifying for the prosecution,
the adversary system of justice is perverted.

Id. at 1055–56; see also Parker v. Gladden, 385 U.S. 363,
365 (1966) (noting that “the official character of the
bailiff—as an officer of the court as well as the
State—beyond question carries great weight with a jury”);
Mattox v. United States, 146 U.S. 140, 149-50 (1892) (“It is
vital in capital cases that the jury should pass upon the case
free from external causes tending to disturb the exercise of
deliberate and unbiased judgment. . . . Private
communications, possibly prejudicial, between jurors and
third persons, or witnesses, or the officer in charge, are
absolutely forbidden . . . .” (emphasis added)).

Recognizing that this risk of “great prejudice” arises
whenever a bailiff testifies for the prosecution, the Supreme
Court in Turner and Beto held that the admission of such
testimony may sometimes violate a criminal defendant’s due
process rights. The Court’s due process inquiry in those
cases focused on two factors: (1) the importance of the
bailiff’s testimony and (2) the nature of the bailiff’s
relationship with the jury.
34 CUMMINGS V. MARTEL

In analyzing the first factor, the Court examined the
extent to which the jury’s verdict in each case turned on the
credibility of the bailiffs’ testimony. See Turner, 379 U.S. at
473 (concluding that “the credibility which the jury attached
to the testimony of these two key witnesses must inevitably
have determined whether Wayne Turner was to be sent to his
death”); Beto, 405 U.S. at 1053 (Stewart, J., concurring)
(referring to the case as one “that turned so largely on [the
jurors’] assessment of the sheriff’s credibility”). For
guidance, it looked at whether the bailiffs had served as “key
witnesses” or confined their testimony “to some
uncontroverted or merely formal aspect of the case for the
prosecution.” Turner, 379 U.S. at 473; see also Beto, 405
U.S. at 1054 (Stewart, J., concurring) (quoting the same
language from Turner). Because the bailiffs in Turner and
Beto had testified to crucial inculpatory facts, including the
defendants’ alleged confessions, the Court held that they fell
on the “key witness” end of this spectrum. See 379 U.S. at
467 (referring to the bailiffs as “[t]he two principal witnesses
for the prosecution”); 405 U.S. at 1052 (Stewart, J.,
concurring) (referring to the bailiff as “the key prosecution
witness”).

Deputy La Casella’s testimony regarding Cummings’s
alleged confession was similarly crucial to the prosecution
during the trial in this case. As the majority notes, La Casella
was the only witness—other than a jailhouse informant who
later recanted his testimony—to corroborate the coroner’s
specific theory that Cummings fired the first shot and Gay
fired the final five. See Slip Op. 14–15. Because multiple
forensic experts and at least one eyewitness disputed the
coroner’s theory of events, La Casella’s testimony proved
 CUMMINGS V. MARTEL 35

central to the prosecution’s case.1 Indeed, the prosecution
itself referred to La Casella during its closing argument as
“perhaps the most important witness in this case,” calling his
testimony “obviously very important.” It told the jury: “His
testimony alone should lead you to the conclusion to convict”
Cummings.

Given the primacy that the state itself attributed to La
Casella’s testimony, I agree with the majority that “[e]ven
under AEDPA’s deferential standard of review, it is hard to
credit the [state] court’s application of Turner’s first prong.”
Slip Op. 15. I would therefore hold that the California
Supreme Court’s conclusion that La Casella was not a key
witness constituted an unreasonable application of clearly
established federal law as determined by Turner and Beto.
See 28 U.S.C. § 2254(d)(1). Unlike the majority, however, I
would hold that the state court’s application of Turner’s
second prong—regarding the nature of the bailiff’s
relationship with the jury—also conflicts with these
controlling precedents.

In Turner, the Supreme Court addressed this prong by
noting that a “continuous and intimate association” between
a testifying bailiff and the jury would give rise to a due
process violation while a “brief encounter” would not.
379 U.S. at 473. In drawing this distinction, “Turner

1
Of the nine eyewitnesses who testified at trial, only one claimed to see
Cummings fire the first shot at Officer Verna from the car. That witness
had failed to identify Cummings as the shooter on two prior
occasions—during both a police lineup and grand jury proceedings—and
admitted that he had previously lied under oath. The witness also
admitted that he had changed his testimony to implicate Cummings only
after he and a detective conducted a “walk-through” of the shooting
following the preliminary hearing.
36 CUMMINGS V. MARTEL

recognized that there is a continuum of potential prejudice
resulting from different types of contacts” and that the
defendant’s due process claim depends on the extent of those
contacts. Beto, 405 U.S. at 1058 (Rehnquist, J., dissenting);
see also id. at 1054–55 (Stewart, J., concurring) (“[Turner]
indicated that a mere ‘brief encounter,’ by chance, with the
jury would not generally contravene due process
principles.”). To illustrate the prejudicial nature of the
bailiffs’ contacts with the jury in Turner, the Court explained
that it “would have undermined the basic guarantees of trial
by jury to permit this kind of an association between the
jurors and two key prosecution witnesses who were not
deputy sheriffs.” 379 U.S. at 474. The fact that the two
witnesses had served as bailiffs simply “made the association
even more prejudicial.” Id.

Turner’s contacts inquiry is distinct from the general
weighing of probative value and prejudice that California
courts typically use to determine the admissibility of
evidence. See Cal. Evid. Code § 352 (“The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will . . . create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”). Unlike that
balancing test, Turner’s focus is constitutional, not
evidentiary, and centers on the potential prejudice resulting
from the bailiff’s relationship with the jury—without regard
to the probative value of the bailiff’s testimony.2

2
Although the first prong of Turner—considering the significance of the
bailiff’s testimony—requires something akin to a traditional probative-
value analysis, the focus of Turner nevertheless remains distinct from the
admissibility question. After all, the two Turner factors are not weighed
against each other but, rather, assessed independently, as the majority
 CUMMINGS V. MARTEL 37

Nevertheless, the California Supreme Court resolved the
Turner question in this case by applying the balancing test.
Rather than examining where La Casella’s contacts with the
jury fell on the spectrum between “brief encounter” and
“continuous and intimate association,” the California
Supreme Court simply reaffirmed the trial court’s ruling that
La Casella’s “association with the jurors was so minimal and
so professional that the probative value of his testimony
outweighed any prejudice to Cummings from his status.”
Cummings, 4 Cal. 4th at 1290 (emphasis added). The court
included its Turner analysis under the heading, “Evidentiary
Rulings,” id. at 1288, and concluded the analysis by stating
that the trial court “did not err in admitting [La Casella’s]
testimony,” id. at 1290 (emphasis added). In short, despite
the California Supreme Court’s passing references to due
process, the language and organization of its opinion make
clear that it never applied Turner’s second prong and, instead,
relied on a state evidentiary rule to deny Cummings’s due
process claim.3

explains. See Slip Op. at 16–17 (emphasizing that “the contacts
requirement in Turner is independent of the key witness requirement and
stands on its own”). To the extent that the California Supreme Court did
consider the two Turner factors together here, its decision would not be
entitled to AEDPA deference because, as explained above, its resolution
of the first Turner prong was unreasonable.
3
Although the majority suggests that the state court’s application of the
evidentiary balancing test was separate from its application of the Turner
test, the language and structure of the opinion suggest otherwise. The
state court specifically cited the balancing test in the middle of its
discussion of Turner and Beto and, as noted above, situated its analysis of
these cases within a broader discussion of the trial court’s “Evidentiary
Rulings.” The court’s reliance on the balancing test therefore appears
central—not merely incidental—to its resolution of the Turner issue.
38 CUMMINGS V. MARTEL

“[W]hen a state court employs the wrong legal standard,
the AEDPA rule of deference does not apply.” Cooperwood
v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001). As this
court explained in Frantz v. Hazey, a state court’s “use of the
wrong legal rule or framework . . . constitute[s] error under
the ‘contrary to’ prong of § 2254(d)(1).” 533 F.3d 724, 734
(9th Cir. 2008) (en banc); Price v. Vincent, 538 U.S. 634, 640
(2003) (explaining that “a decision by a state court is
‘contrary to’ our clearly established law if it ‘applies a rule
that contradicts the governing law set forth in our cases’”
(citations omitted)). Thus, while we must defer to state
courts under AEDPA, we may not permit them to circumvent
controlling Supreme Court precedent by resolving federal
constitutional issues under their own state evidentiary rules.
See Slovik v. Yates, 556 F.3d 747, 754 (9th Cir. 2009)
(granting habeas petition where the “California Court of
Appeal analyzed [the petitioner]’s claim as an evidentiary
issue governed by state law, rather than a confrontation
question governed by the Sixth Amendment”).

In sum, the California Supreme Court’s decision to deny
Cummings’s due process claim is not entitled to AEDPA
deference. The court’s analysis of the first Turner factor was
objectively unreasonable while its analysis of the second
factor was based on an incorrect legal standard and, thus,
contrary to federal law. Because the state court’s resolution
of Cummings’s due process claim is not entitled to deference,
this court should review that claim de novo. Panetti v.
Quarterman, 551 U.S. 930, 953 (2007).

II

Reviewing Cummings’s due process claim de novo, I
would grant his petition for habeas relief. La Casella’s
 CUMMINGS V. MARTEL 39

testimony was critical to the prosecution’s case against
Cummings and, as explained above, the trial record easily
demonstrates that he was a “key witness” under Turner’s first
prong. While Turner’s second prong presents a closer
question, I would hold that it, too, weighs in Cummings’s
favor since La Casella’s contacts with the jury were
significant enough to result in prejudice.

First, La Casella served as a bailiff for a much longer
period of time than the bailiffs in Turner and Beto. Although
La Casella may not have socialized with the jurors to the
extent that the bailiffs did in those cases, he served as bailiff
for more than three months during voir dire and continued to
serve throughout the first week and a half of witness
presentations. In contrast, the bailiffs in Turner served for
only a three-day trial while the bailiff in Beto served for only
a one-day trial. The Seventh Circuit has specifically pointed
to Beto as a basis for granting habeas relief to a petitioner
who had been convicted of robbery based on the testimony of
a bailiff who served for just one day of trial. Agnew v.
Leibach, 250 F.3d 1123, 1132 (7th Cir. 2001) (granting
habeas petition under pre-AEDPA law based on the bailiff’s
“continuous association [with the jury] throughout the first
day of a two-day trial”). Notably, the Seventh Circuit granted
the petition even though the record did not “reveal whether
the [bailiff] accompanied any jurors to lunch” or contain any
other “information about the deputy’s out-of-court contact
with the jurors.” Id.

The nature of La Casella’s contacts with the jury likewise
suggests that his testimony was unduly prejudicial. He
testified that jurors had asked him roughly two dozen
questions throughout the course of the trial, that he
sometimes greeted jurors as they entered the courtroom, and
40 CUMMINGS V. MARTEL

that he unlocked the jury room for them on a handful of
occasions. Although these encounters might have seemed
inconsequential when La Casella was merely a bailiff, once
he became the prosecution’s star witness, these interactions
would have likely taken on added significance for at least
some jurors. The standard for determining whether those
interactions were permissible under Turner is not whether
they rose to some abstract level of intimacy. Rather, the
proper inquiry is whether it “would have undermined the
basic guarantees of trial by jury to permit this kind of an
association between the jurors and [a] key prosecution
witness[]” who was not a bailiff. Turner, 379 U.S. at 474; see
also Beto, 405 U.S. at 1055 (Stewart, J., concurring) (quoting
the same language from Turner).

In this case, the length and nature of La Casella’s
association with the jury would have likely precluded him
from serving as a witness had he not been assigned to the
courtroom as a bailiff during Cummings’s trial. Indeed, it is
difficult to imagine another witness being permitted to testify
after interacting with jurors, however briefly, on more than
two dozen occasions over the course of such a lengthy trial.
Cf. Agnew, 250 F.3d at 1132 (“This was not a chance
encounter on an elevator but was a continuous association
throughout the first day of a two-day trial.”). The fact that
these interactions occurred while La Casella was serving as
a bailiff—tasked specifically with ensuring the jury’s
safety—only compounds the risk of prejudice.4 See Turner,

4
The prosecution itself may have sought to exploit this potential
prejudice. In its closing argument, it stressed that La Casella was “a
deputy sheriff who acted as security in this courtroom,” and told the jury,
“if you don’t convict [Cummings] of first-degree murder with special
circumstances, you are telling Deputy La Casella in effect that he lied. I
 CUMMINGS V. MARTEL 41

379 U.S. at 474 (“[T]he role that Simmons and Rispone
played as deputies made the association even more
prejudicial. For the relationship was one which could not but
foster the jurors’ confidence in those who were their official
guardians during the entire period of the trial.”).

For these reasons, I would hold that La Casella’s
testimony infringed Cummings’s due process rights and
would grant his petition for habeas relief.

O’SCANNLAIN, Circuit Judge, concurring in part, dissenting
in part, and concurring in the judgment:

I agree with Judge McKeown that the district court’s
decision to deny the petition for habeas corpus must be
affirmed. Therefore, I concur in her opinion, and in its
excellent reasoning—except as to Section I.A. I respectfully
dissent from Section I.A., and write separately to explain why
the California Supreme Court’s conclusion that Deputy
LaCasella was not a “key witness” under Turner must be
afforded AEDPA deference.

I

I begin by noting that Section I.A. is dicta—whether it is
included or excised, the result is the same because, as Section
I.B. persuasively explains, Cummings cannot show that the
California Supreme Court erred in evaluating Turner’s
second prong—the “heart of the Turner analysis.”

don’t think you believe that.”
42 CUMMINGS V. MARTEL

Further, Section I.A. is not only unnecessary to resolution
of this case, but is, in my view, incorrect. The California
Supreme Court was not objectively unreasonable in
concluding that a “key” witness under Turner must be the
“principal” witness—not merely one of several witnesses
whose testimony is probative of guilt. Furthermore, because
its key witness analysis did not contravene Turner, and
because its decision was not “so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement,” it is our obligation to defer to the state court’s
conclusion. White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(internal quotation marks omitted).

A

The majority opinion1 concludes that LaCasella was a
“key prosecution witness” under Turner because he was
important—although not necessary—to the state’s case.
Specifically, the majority notes that: (1) the prosecutor
emphasized the importance of LaCasella’s testimony to the
jury, and (2) no other witness—or more accurately, no other
witness of such credibility2—provided testimonial support for
the government’s precise theory of the case.

Although I agree with the majority’s conclusion that
LaCasella’s testimony was important, I disagree with its

1
Because Chief Judge Thomas agrees with Section I.A., I refer to it as
part of the “majority opinion.”
2
As the majority notes, LaCasella’s testimony was not the only
testimony supporting the prosecution’s “first-shot” theory— “at least one
eyewitness testified that the person in the back seat fired the first shot.”
 CUMMINGS V. MARTEL 43

conclusion that the California state court was thus compelled
to treat LaCasella as a “key” witness under Turner, and with
any resulting implications. The majority argues that a “key”
witness is any witness who testifies to an important issue,
beyond “some uncontroverted or merely formal aspect of the
case for the prosecution,” even when “other evidence [and
testimony] also supports the verdict.” But Turner does not
establish that such “important” and “key” witnesses are the
same.

While Turner “emphasized” that the bailiff-witnesses in
that case were the “key witnesses” whose testimony “must
inevitably have determined whether Wayne Turner was to be
sent to his death,” 379 U.S. at 473, this statement does not
“clearly establish” that any important witness whose
testimony is probative of guilt is a “key witness.” If
anything, Turner suggests that a “key” witness is one whose
testimony is absolutely necessary to establish guilt, as was
the case with the two bailiffs in Turner. See 379 U.S. at 474
(explaining that “Turner’s fate depended upon how much
confidence the jury placed in these two witnesses”). By
contrast, as the majority concedes, LaCasella was only one of
several witnesses who testified to Cummings’s guilt.

Thus, the California Supreme Court’s conclusion that
LaCasella “was not the principal or key prosecution witness,”
Cummings, 4 Cal.4th at 1290, is not “objectively
unreasonable” and “so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” White,
134 S.Ct. at 1702.
44 CUMMINGS V. MARTEL

II

I agree with Judge McKeown that the denial of
Cumming’s petition must be affirmed. However, because the
California Supreme Court was not “objectively unreasonable”
in its interpretation of the minimal Supreme Court guidance
on the Turner “key” and “principal” witness issue, and,
although I concur in the rest of the opinion, I must
respectfully dissent from Section I.A.