                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 25 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID ALLEN RUNDLE,                             No.    16-99012

                Petitioner-Appellant,           D.C. No.
                                                2:08-cv-01879-TLN-KJN
 v.

RON DAVIS, Warden,                              MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                       Argued and Submitted June 18, 2019
                            San Francisco, California

Before: N.R. SMITH, NGUYEN, and OWENS, Circuit Judges.

      Petitioner David Allen Rundle appeals the district court’s denial of his

federal habeas petition seeking relief from the death penalty on the ground that trial

counsel provided ineffective assistance during the penalty phase. Rundle’s habeas

petition is circumscribed by the Antiterrorism and Effective Death Penalty Act




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(“AEDPA”), 28 U.S.C. § 2254. Reviewing the district court’s decision de novo,

Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004), we affirm.

      A California state court jury convicted Rundle of two counts of first-degree

murder and attempted forcible rape of eighteen-year-old Caroline Garcia and

fifteen-year-old Lanciann Sorensen. The jury found true special circumstances that

Rundle was convicted of multiple murders and that he committed the murders in

the course of attempting to rape his victims. Following the penalty phase—during

which the jury was presented with significant aggravating evidence, including that

Rundle sexually assaulted and murdered a third young woman, sexually assaulted

and threatened to kill three young children, and physically and sexually abused his

ex-wife—the jury returned a verdict of death. After the California Supreme Court

summarily denied Rundle’s state habeas petition,1 Rundle filed a federal habeas

petition, which the district court denied.

      Under AEDPA, federal habeas relief may be granted only if the state court’s

decision on the merits “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



1
 The California Supreme Court summarily denied all of Rundle’s habeas claims,
with the exception of one claim challenging the method of execution, which the
California Supreme Court denied as premature and without prejudice.


                                             2
light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). Because the California Supreme Court summarily denied Rundle’s

penalty-phase ineffective assistance of counsel claim, Rundle must show that

“there was no reasonable basis for the state court to deny relief.” Harrington v.

Richter, 562 U.S. 86, 98 (2011). We “must determine what arguments or

theories . . . could have supported[] the state court’s decision; and then [we] must

ask whether it is possible fairminded jurists could disagree that those arguments or

theories are inconsistent with . . . a prior decision of [the Supreme] Court.” Id. at

102. This standard, which is “highly deferential” and “demands that state-court

decisions be given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24

(2002) (per curiam), is purposefully “difficult to meet,” Richter, 562 U.S. at 102.

      To prevail on an ineffective assistance of counsel claim under Strickland v.

Washington, 466 U.S. 668, 687 (1984), Rundle must show both that counsel’s

performance was deficient and that he suffered prejudice due to counsel’s

deficiency. Rundle’s failure to meet either prong is fatal to his claim. Id.

      Rundle argues that counsel’s performance was deficient because counsel

(1) failed to investigate and present mitigating evidence; (2) failed to adequately

challenge the admissibility of Dr. Irwin Lyons’ testimony; (3) called Dr. Richard

Thomas as a defense witness; (4) failed to request a competency hearing; and (5)

failed to object to prosecutorial misconduct. We need not address the performance


                                           3
prong of the Strickland analysis because it was not unreasonable for the California

Supreme Court to conclude that Rundle was not prejudiced by any purported

deficiency in counsel’s performance. Id. at 697. To establish prejudice under

Strickland, a petitioner must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. To make this assessment, we “compare the evidence that

actually was presented to the jury with the evidence that might have been presented

had counsel acted differently.” Clark v. Arnold, 769 F.3d 711, 728 (9th Cir. 2014)

(quoting Murtishaw v. Woodford, 255 F.3d 926, 940 (9th Cir. 2001)).

      The aggravating evidence presented to the jury was simply overwhelming.

Rundle’s murders and attempted forcible rapes of Garcia and Sorensen were

gruesome and disturbing. The young women’s naked dead bodies were found in

rural areas in Placer County, California, with their arms tied tightly behind their

backs. Rundle testified that he sodomized and strangled Garcia to the point where

blood came out of her mouth. Rundle confessed to killing Sorensen. He also

testified that he was sexually aroused after murdering these young women and that

he had sex with their dead bodies, and that it was more exciting than any other

prior sexual encounters because he had total control over them.

       The jury also heard other significant aggravating evidence, including


                                          4
Rundle’s confession to the sexual assault and murder of a third woman, twenty-

four-year-old Elizabeth Lactawen. Lactawen’s naked body was found near the

Sacramento River with her hands tied behind her back, and a cloth tied over her

mouth. The condition of Lactawen’s body suggested she had been raped and

sodomized. The pathologist that performed the autopsy found that Lactawen was

likely killed by strangulation with a thin rope or wire. The jury heard evidence

about Rundle’s threats and sexual assaults of three young children when he was a

teenager. Rundle sexually assaulted a six-year-old girl after threatening to kill her

with a rock if she did not do as he said. Even after being caught and punished for

assaulting the six-year-old girl, Rundle went on to assault an eleven-year-old boy

and a twelve-year-old boy. Rundle forced the boys to strip, commanded one of the

boys to “fuck” the other, and forced them to orally copulate him. Rundle

threatened to kill the boys if they spoke of what happened. The jury also heard

evidence about Rundle’s abuse of his ex-wife, whom he sodomized, forced to

orally copulate him to the point where she vomited on his penis, pushed from a

moving car, and whose head he, on one occasion, pounded into the ground

repeatedly.

      Rundle argues that counsel was ineffective for failing to investigate and

present mitigating evidence. But defense counsel in fact presented the jury with

Rundle’s strongest mitigating evidence, the most significant of which was


                                          5
Rundle’s testimony that his mother, Jane Rundle (“Jane”), sexually abused him

throughout his childhood and into his teenage years. Rundle’s uncle testified that

when Rundle was an infant, he had suspected that Jane was sexually abusing

Rundle because Rundle had severe chafing on his penis, which was meant to

corroborate Rundle’s claim of incest. This testimony is particularly impactful

because it supports the theory that Jane had been sexually abusing Rundle from the

time he was an infant. The jury also heard from Dr. Richard Yarvis who testified

about the “disastrous” impact that incest has on victims. He testified that it is

unlikely that a victim of incest would be “normal” in a psychological sense. He

explained that victims of parental incest often suffer from feelings of guilt,

despondency, anxiety, and anger, which is caused by the parent compelling the

victim to engage in acts the victim knows are wrong. He also testified about

hypothetical scenarios that might trigger Rundle to act out in rage as a result of the

abuse he suffered. Evidence relating to Jane’s incestuous abuse of Rundle was

likely the most powerful mitigating evidence available to the defense, given its

horrific nature and likelihood to cause great sympathy for Rundle.

      Other mitigating evidence presented included testimony from Rundle’s

previous employers who described Rundle as a hard-working, conscientious, and

trustworthy employee. Rundle’s instructor from his high school equivalency

program, who met with Rundle in jail once a week for about two months, testified


                                           6
that he was a quiet, focused, and thorough student. A jail sergeant testified that

Rundle assisted jail officials with preventing an inmate from escaping and locating

two prisoner-made weapons. A defense investigator testified that Rundle’s ex-wife

told him that Rundle’s relationship with his family was strained and that she had

never seen them act affectionately toward one another. Rundle’s ex-wife also

reported that Rundle had mentioned his mother had weird sexual “quirks.”

      Rundle argues that counsel should have presented other mitigating evidence:

(1) physical and emotional abuse that he suffered separate from his mother’s

incestuous assaults, (2) his mother’s own sexual abuse by her father, (3) his mental

health, (4) his history of substance abuse, and (5) institutional failures. But much

of this evidence was presented in some fashion. See Cullen v. Pinholster, 563 U.S.

170, 202 (2011) (“Having already heard much of what is included in the state

habeas record, the jury returned a sentence of death.”). For example, Dr. Yarvis

testified that Rundle’s father “tended at times to be physically abusive” when he

was home. While Jane’s father’s abuse of her was not introduced, testimony of

Jane’s abuse of Rundle was presented, with others corroborating her horrible

treatment of Rundle. While counsel did not present evidence explicitly connecting

Jane’s abuse of Rundle to Rundle’s crimes, evidence was presented to the jury

upon which the jurors could draw inferences and connect the dots on their own.

Dr. Yarvis testified about the horrible psychological impacts caused by maternal


                                          7
incest. And if the defense had done as Rundle now argues, calling witnesses like

Jack Denman to testify, that might have brought in additional aggravating

evidence, like Rundle’s alleged sexual ignorance when he failed in his attempt to

rape a woman when he was fourteen because he “didn’t know what to do.” This

evidence could have undercut Rundle’s strongest mitigating evidence—that

Rundle had been raped by his mother throughout his childhood.

      Evidence was also introduced that Rundle engaged in substance abuse—that

he used LSD and smoked marijuana. And although more evidence about his drug

use could have been introduced, it was not unreasonable for the California

Supreme Court to conclude that such evidence would not have been helpful to

Rundle’s case. Rundle walked the jurors through his actions when he committed

the crimes, demonstrating that he was aware of what he was doing at the time.

Rundle did not commit the crimes while suffering from some sort of hallucination

or other drug-induced unawareness of reality. Additional testimony about his

mental health and drug use would not have made a difference in the penalty phase

given the horrific nature of his crimes.

      As to the mitigating evidence that society and institutions failed Rundle, the

jurors heard testimony that allowed them to draw the inference that Rundle’s

treatment at St. Anthony’s Youth Services Center, a state juvenile facility for

delinquent children, had not resolved his deeply-rooted issues. Additionally,


                                           8
calling witnesses like Dr. Kenneth Wrenn could have led to the introduction of

additional aggravating evidence, like the fact that Dr. Wrenn knew that Rundle

“liked to show off his penis” at school, and, on one occasion, was reported by

another student for “masturbating against a pole” at recess.

      Rundle also argues that counsel failed to challenge the admissibility of Dr.

Lyons’ testimony and failed to effectively cross-examine him. But it was not

unreasonable for the California Supreme Court to have concluded that these

purported failures did not prejudice Rundle. While Dr. Lyons’ testimony that

Rundle “had a defect in his conscience,” was “amoral,” and suffered from rage

attacks was not helpful to Rundle’s defense, it is not likely that this evidence tipped

the scales with respect to the death sentence, in light of the severe aggravating

evidence. Even if the defense was successful in excluding those statements by Dr.

Lyons, the jurors had more than sufficient evidence to reach the same conclusions

about Rundle—that he was amoral, had a defect in his conscience, and was subject

to rage attacks—in light of the nature of his repeated horrific conduct.

      And while Dr. Thomas’s testimony that Rundle suffered from “explosive

personality disorder” and that “it is a matter of time before somebody gets violated

again,” was not helpful to the defense, it was not so significant that its omission

would have led to a reasonable probability of a different outcome. Strickland, 466

U.S. at 694. Rundle assaulted three children, went on to beat and sexually assault


                                          9
his wife, and then sexually assaulted and murdered three women. In light of this

aggravating evidence, the jury could infer that it was only a matter of time until

Rundle violated someone again.

      Rundle argues that counsel was ineffective for failing to request a

competency hearing, but nothing in the record shows that Rundle did not have the

“present ability to consult with his lawyer with a reasonable degree of rational

understanding” or that he did not have “a rational as well as factual understanding

of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960)

(per curiam). Thus, the California Supreme Court could have reasonably

concluded that Rundle did not suffer any prejudice.

      Finally, as for Rundle’s allegation that counsel was deficient for failing to

object to prosecutorial misconduct, the challenged statements by the prosecutor

were largely permissible argument. In any event, as discussed above, any alleged

error did not result in prejudice.

      AFFIRMED.




                                         10
