and Submitted June 26, 2019, Pasadena, California
from the United States District Court for the Central
District of California R. Gary Klausner, District Judge,
Presiding D.C. No. 2:05-cv-07606-RGK
A. Trigilio (argued), Mark R. Drozdowski, and Susel B.
Carrillo-Orellana, Deputy Federal Public Defenders; Hilary
Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; Firdaus F. Dordi,
Los Angeles, California; for Petitioner-Appellant.
R. Johns Estaville (argued), Ana R. Duarte, A. Scott Hayward,
and Dana M. Ali, Deputy Attorneys General; Lance E. Winters,
Senior Assistant Attorney General; Gerald A. Engler, Chief
Assistant Attorney General; Xavier Becerra, Attorney General;
Office of the Attorney General, Los Angeles, California; for
Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B.
Owens, Circuit Judges.
panel affirmed the district court's denial of Hooman
Panah's habeas corpus petition challenging his State of
California conviction and sentence for the first-degree
murder and sexual assault of an eight-year-old girl.
district court granted a certificate of appealability as to
Panah's claim brought pursuant to Napue v.
Illinois, 360 U.S. 264 (1959), in which Panah, relying
on post-conviction DNA reports, contended that he was
prejudiced by the State's presentation of serology
testimony which, he argued, the State knew was false and
misleading. The panel held that the California Supreme Court
reasonably rejected this claim. The panel held that even
assuming there was no reasonable basis for the state court to
deny the claim as to the first two Napue
requirements - that the testimony was false or misleading,
and that the State knew or should have known that - the panel
could not say that it would be unreasonable to conclude that
the testimony did not satisfy the third requirement -
materiality. Observing that even setting aside the serology
testimony, the case against Panah was devastating, the panel
held that the California Supreme Court would not have erred
in finding no reasonable likelihood that the testimony could
have affected the verdict.
panel expanded the certificate of appealability to encompass
Panah's claim that his trial counsel rendered ineffective
assistance by failing to conduct a reasonable investigation
and therefore not rebutting the State's serology and
pathology evidence. The panel expressed concern with
counsel's lack of pre-trial investigation, but held that
even assuming counsel's performance was deficient, it
could not say - in light of the overwhelming evidence of
Panah's guilt and the deference owed the state court
judgment - that the California Supreme Court would have erred
in finding no reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.
state prisoner Hooman Panah appeals from the district
court's denial of his habeas corpus petition challenging
his conviction and sentence for the first-degree murder and
sexual assault of eight-year-old Nicole Parker. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Murder & Sexual Assault of Parker
early afternoon of November 20, 1993, Parker went missing
from her father's apartment complex, where Panah also
lived with his mother. While searching for her in the
complex, Parker's father knocked on Panah's door and
asked if Panah had seen her. Panah responded something like,
"oh, is she missing." He then offered to help
Parker's father look for her, "persistent[ly]"
suggesting they search outside the apartment complex. Soon
after, the police arrived and conducted a door-to-door search
for Parker, including Panah's apartment. The police did
not find Parker or any clues as to her whereabouts.
day, Panah reported to work in the mid-afternoon. Around 5:30
pm, his mother, who was with two police officers, called
Panah. The officers asked him if he knew Parker or had seen
her that day. He responded that he knew her only
"vaguely" and denied having seen her that day.
Shortly after the officers' inquiry - hours before his
shift ended - Panah left work without telling anyone. He
later called his manager to say that he would not return
"because some people that he knew [were] trying to get
him in trouble and would [his manager] please inform his
mother to get out of town." Panah also paged his
co-worker, Rauni Campbell, asking for help. He told her that
he "d[id] something very bad," "so big"
that she would find out.
next morning, Panah showed up without warning at
Campbell's apartment. His wrists were cut, and he
requested sleeping pills, which she helped him buy. Campbell
asked Panah if he had anything to do with "the little
girl that was missing from his apartment complex." He
said yes. She then asked him whether Parker was still alive.
He said no. At this point, Campbell surreptitiously called
the police. When they arrived, Panah tried to evade arrest
but was eventually caught and taken to the hospital. At the
hospital, under the influence of drugs and reportedly in a
psychotic state, Panah told police, in response to questions
about Parker, that he "liked her very much, even [to]
carry her skeleton remains around."
that evening, the police, armed with a search warrant,
returned to Panah's apartment. In his bedroom closet,
they found Parker's naked body, wrapped in a bedsheet and
stuffed in a suitcase. The police then gathered evidence from
Panah's bedroom, including examining his bed and
Parker's body for evidence of sexual assault.
was indicted on charges of first-degree murder with special
circumstances alleging that the murder occurred during a
kidnapping, sodomy, lewd acts on a person under fourteen
years old, and oral copulation of a person under fourteen
years old. He was also charged with the substantive counts of
kidnapping, sodomy by force, lewd acts on a person under
fourteen years old, penetration of genital or anal openings
by a foreign object with a person under fourteen years old,
and oral copulation of a person under fourteen years old.
Panah pled not guilty.
was initially represented by a family friend, Syamak
Shafi-Nia, who had limited criminal law experience. But prior
to trial, the court appointed Robert Sheahen, a veteran
criminal lawyer, as lead counsel, and allowed Shafi-Nia to
stay on as second counsel. Sheahen had requested this
appointment, promising the court that he would facilitate a
settlement, which would "save a great deal of time and
the taxpayers would be saved a great deal of money" by
avoiding "an extremely costly trial."
1994, several months before trial, the State notified the
court and defense that it had ordered DNA testing on evidence
found at the crime scene. While awaiting the test results in
September, the court urged Sheahen to "find a DNA expert
to assist you" and "see if there's any basis
for questioning the results." In October, two months
before trial, the State shared the DNA test results with the
defense. Again, the court advised Sheahen to retain an
expert, to which Sheahen responded, "That will be taken
as trial approached, the State decided not to introduce the
DNA evidence. The court pressed defense counsel why he had
not yet independently tested the DNA. Counsel explained that
doing so "would put us in the position of confirming the
prosecution results," and that he instead planned to
argue that the State's "failure to do DNA testing
should be held against" them. The court approved of this
strategy, calling counsel's "tactics . . . very
sound in this particular case."
trial began on December 5, 1994. With jury selection set to
begin, Sheahen notified the court that Shafi-Nia was no
longer able to serve as second counsel but did not request a
continuance. Accordingly, Panah began jury selection with
just one lawyer. Shortly after, the court appointed new
second counsel to replace Shafi-Nia, but second counsel was
required to familiarize himself with the case during trial.
State's theory was felony murder. It emphasized the
abundance of circumstantial evidence against Panah and
focused on "Parker's body bloody and battered,"
which was "tied up in a sheet inside a zipped
suitcase" in Panah's closet. It also highlighted
Panah's incriminating behavior soon after Parker went
missing, including that Panah was "anxious" to
encourage Parker's father to search outside the apartment
complex; "had fled" work hours before his shift
ended after receiving a call about Parker from his mother and
police; and made numerous admissions about his involvement in