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Panah v. Chappell

United States Court of Appeals, Ninth Circuit

August 21, 2019

Hooman Ashkan Panah, Petitioner-Appellant,
Kevin Chappell, Warden of California State Prison at San Quentin, Respondent-Appellee.

          Argued and Submitted June 26, 2019, Pasadena, California

          Appeal 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

          Joseph 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.

          Toni 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 Respondent-Appellee.

          Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus

         The 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.

         The 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.

         The 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.



         California 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.

         I. Background

         A. Murder & Sexual Assault of Parker

         In the 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.

         That 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.

         The 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."

         Later 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.

         Panah 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.

         B. Pre-Trial Proceedings

         Panah 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."

         In July 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 care of."

         However, 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."

         C. Trial

         Panah's 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.

         i. Case-in-Chief

         The 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 ...

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