Rodrigues v. Calderon

Filing 397

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 9/6/16. (napS, COURT STAFF) (Filed on 9/6/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOSE ARNALDO RODRIGUES,

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Petitioner,

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W.L. MONTGOMERY, Warden,
Respondent.
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United States District Court
For the Northern District of California

ORDER DENYING
PETITION FOR WRIT
OF HABEAS CORPUS

v.

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No. C 96-01831 CW

On May 27, 1999, Petitioner Jose Arnaldo Rodrigues, a state

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prisoner incarcerated at California State Prison in Corcoran,

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California, filed a petition for a writ of habeas corpus asserting

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forty-seven claims.

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answer.

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traverse, Petitioner also seeks discovery and an evidentiary

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hearing on some of those claims.

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and Petitioner has filed a response.

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papers, the Court denies Petitioner’s discovery requests, denies

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his request for an evidentiary hearing, and denies the petition.

On January 11, 2002, Respondent filed an

On April 7, 2014, Petitioner filed a traverse.

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In his

Respondent has filed a reply,
Having considered all of the

BACKGROUND
I.

Statement of facts

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The following facts are taken from the December 1, 1994

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opinion of the California Supreme Court on direct appeal from the

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jury verdict.

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People v. Rodrigues, 8 Cal. 4th 1060 (1994).

1. The Prosecution Case
Epifanio Zavala testified that in May 1987, he was
living with his older brother Juan Barragan in an apartment
on the second floor of a two-story building at 1100 Sevier in
Menlo Park. Zavala was then 19 years old and Barragan was
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Although Zavala and Barragan previously worked in
restaurants, they did not have jobs the first week of May
1987. Barragan sold small amounts of cocaine and heroin to
help make a living. Zavala sometimes helped out by giving
drugs to customers. One of those customers was Cynthia
Ontiveros, a heroin addict who had bought heroin from the
brothers on several occasions.
Ontiveros testified to the following. Although she
lived in Hayward with her boyfriend, Richard Lopez, she was
in love with Juan Garcia. At approximately noon on May 4,
1987, Ontiveros left Hayward to buy some heroin from Zavala
at his apartment. Zavala sold her approximately one gram of
heroin for $100. After telling Zavala she might come back,
Ontiveros returned to Hayward. During the course of the day,
Ontiveros injected about half of the heroin and sold the
rest.
At approximately 5 p.m. that evening, Ontiveros was
selling heroin in front of the El Tanampa bar on B Street in
Hayward. Garcia drove up in defendant’s car, with defendant
in the passenger seat. Garcia asked Ontiveros how he could
make some money. Ontiveros told him not to worry about it,
that she would find a way. She told Garcia to meet her at
the bar later in the evening.
Garcia and defendant met Ontiveros at the bar after
dark. Ontiveros told Garcia she had a connection from whom
they could get drugs, and identified Zavala and Barragan
because they were young and naive drug dealers who “weren’t
rough.” Ontiveros had never seen the brothers with weapons
and had never seen them use or threaten violence in their
drug dealing. She thought Garcia and defendant could get
drugs from them without a big fight.
Ontiveros, Garcia and defendant then planned how to get
the drugs from Zavala and Barragan. They agreed that
Ontiveros would go to the apartment first because the
brothers knew her and would open the door for her. Once the
door was open, Garcia and defendant would rush in and scare
the brothers into giving up their drugs. Garcia asked
Ontiveros if Zavala and Barragan had any weapons, and she
responded that she had never seen any and did not think they
had any. Ontiveros apparently thought that the brothers
might be beaten or roughed up a little bit, but did not
expect any further violence. Ontiveros, Garcia and defendant
agreed to use defendant’s car, a beige Lincoln, to drive to
the brothers’ apartment.
Sometime around 11 p.m., Ontiveros, Garcia and defendant
arrived at the apartment. Garcia was dressed in black pants,
black shoes and a black jacket. Defendant wore a beige longsleeved jacket. Garcia, who was driving, stopped the car on
Sevier Street, some seven or eight houses down from the
apartment. Ontiveros went to find out who was in the
apartment. It was agreed that Ontiveros would let Garcia and
defendant know if the brothers were alone.
Ontiveros went upstairs to the apartment and knocked on
the door. Zavala let her in. Once inside, Ontiveros saw
Barragan asleep on the couch but did not see anyone else.
Zavala told Ontiveros that he had not expected her to return,
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and that he had no more drugs. After some discussion, Zavala
indicated he would give her some money for a “date” if she
would stay. After agreeing to this, Ontiveros said she was
going to tell her friend who was waiting for her in a car.
Zavala walked downstairs with Ontiveros, then went to his own
car and locked it while she kept walking. Zavala returned to
the apartment and waited for Ontiveros.
After Zavala went upstairs, Ontiveros walked to
defendant’s car. She told Garcia and defendant that the
brothers did not have any drugs, but that they did have
money. When Garcia asked how much money, Ontiveros replied
she did not know, but said they must probably have “a good
amount” because Zavala had not yet bought more drugs.
Ontiveros, Garcia and defendant agreed to proceed with the
plan to rob the brothers, but to get money instead of drugs.
Garcia moved defendant’s car to Madera, the next street
over, and parked it approximately 20 to 30 feet from Pierce
Road. Ontiveros walked to Madera and met Garcia and
defendant there. She saw Garcia obtain an object that looked
like a crowbar from the trunk of the car, and noticed
defendant had a large knife. The three walked together back
to the apartment building.
As planned, Garcia and defendant went up the back
stairs. Ontiveros walked up the front stairs, and knocked on
the door. As Zavala let her in, she saw that Barragan was
still sleeping on the couch. At that point, Garcia and
defendant rushed into the apartment. Garcia hit Zavala with
his tire iron and knocked him back onto Ontiveros. Ontiveros
became scared and ran back to defendant’s car. She waited in
the front seat for several minutes until Garcia and defendant
returned.
Zavala testified that once inside the apartment, Garcia
struck at Zavala’s head repeatedly with a tire iron, forcing
him back into the apartment through the living room. Zavala
yelled at Barragan to wake up. As Barragan stood up, Zavala
saw the second attacker, who was wielding a knife in his left
hand, hold his brother up against a wall. Zavala, who at
this time was being held to the ground and beaten by Garcia,
saw the second attacker trying to stab his brother in the
face or throat. After the attacker and Barragan fell to the
floor during the struggle, the attacker reached over and
stabbed Zavala in the left leg and right foot.
During the course of the attack, Garcia said to Zavala:
“Calmate cabron, [¿]donde la tienes?” According to Zavala,
this translated in English to: “Calm down, damn it, where do
you have it?” Zavala answered with a lie, saying “it” was in
the closet. He was hoping to have a chance to help his
brother if the attacker went to look in the closet. After
Zavala responded, however, the man with the knife told Garcia
in English to “finish him too.” Garcia stabbed Zavala in the
back with the pointed end of the tire iron, penetrating to
the bones. At that point, the telephone started ringing and
the man with the knife said: “Well let’s get out of here the
police might going to come [sic].” As the two assailants
fled from the apartment, Zavala could see that the one with
the knife had an injured arm.
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After the assailants left, Zavala answered the phone,
which had continued to ring. The caller was Maria Vargas, a
friend and neighbor from an apartment downstairs. Zavala
told Vargas his brother was dead and to call the police.
Vargas testified that she immediately dialed 911 from a
telephone located next to her bedroom window. As Vargas was
reporting the murder, she saw two men come down the apartment
stairway and pass by the window. Since a light had been
shining on the stairway landing that night, Vargas saw the
two men clearly enough to provide the following details. The
first was a “dark man” who wore dark clothes, had blood on
his left hand, and held his left arm down by his side with
his right arm across his chest. After reaching the bottom of
the stairs, the man stopped and looked through the window at
Vargas and her daughter; he then hurried off toward Pierce
Street. The second man was an Hispanic with light skin and
straight hair. He was about four steps behind the first man
as they came down the stairs. The second man also looked
through the window at Vargas as he rushed by.
Vanessa Sturns lived in an apartment building next to
1100 Sevier. She testified that shortly after midnight on
the morning of May 5, 1987, she got into her car and was
beginning to drive to a liquor store when she saw two men in
dark clothes climb over a fence into the backyard of her
apartment building and walk to Madera. Sturns noticed the
men because she had never seen anyone jump that fence before.
Because the area was “nicely lit,” she could tell that the
two men were Hispanic, and that they were not “Black.”
Sturns was approximately one and a half car lengths from the
men as she observed them. As Sturns drove off, she saw a car
parked on Madera, about five houses up the street.
Ontiveros testified that when Garcia and defendant
returned to the car, Garcia took the driver’s seat and
defendant sat in the passenger side. Defendant had a deep
cut on his left forearm. Garcia had blood on his face and
hands, but he was not injured. Defendant told Ontiveros to
clean the blood off Garcia.
As they drove back to Hayward, defendant climbed into
the backseat and lay down. He told Ontiveros to look
straight and act normal. There was some discussion between
Garcia and defendant about the knife, and as they approached
a bridge, Ontiveros felt a rush of air as if the rear window
had been rolled down. Although she did not see defendant
throw the knife out, she did not see the knife in the car
again. Ontiveros told defendant not to worry, she would not
say anything about what had happened.
The three stopped for about half an hour in Hayward
while Garcia changed his shirt and defendant changed his
pants. Defendant also took his jacket off to wrap his arm,
which was bleeding badly. Garcia stayed at that location,
and Ontiveros dropped defendant off at his sister’s house in
Hayward. Ontiveros then drove to her place. The next day,
pursuant to Garcia’s instructions, Ontiveros washed the blood
out of the interior of the car. Later on, defendant’s
brother, Raymond Rodriguez (hereafter Raymond), came by and
retrieved the car.
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Defendant’s sister Norma testified that at approximately
4:10 in the morning on May 5, 1987, defendant came to her
house and told her he had been working on his car. He asked
for a bandage and requested to be taken to Raymond’s house in
Oakland.
Raymond testified that defendant told him a transmission
had fallen on his arm. He acknowledged, however, having
testified at the preliminary hearing that although defendant
told him to say that the transmission had fallen while the
two of them were working on defendant’s car, the two had not
actually worked together on the transmission for a week or
two before defendant’s arm was injured. When Raymond drove
the car back from Ontiveros’s place in Hayward, he had no
trouble with the transmission. Raymond took defendant to
Highland Hospital at 5:50 in the morning on May 5 to get his
arm treated.
Dr. William Billings from Highland Hospital testified
that although defendant stated that a transmission fell on
his left arm, no dirt or grease was found in the wound.
Also, the wound appeared to have been caused by a sharp
instrument, rather than a blunt one, and was sufficiently
clean that the surgery team was able to sew the tissue
together fairly precisely and match a tattoo that had been
split apart. Hospital records reflected that defendant was
left-handed.
Officers arriving at the scene of the crime found
Barragan lying dead on the floor with a massive pool of blood
around his head and neck area. Barragan’s chest was split
wide open, and part of his face was hanging off. The
officers saw Zavala rolling around on the floor in pain.
Zavala had been severely beaten and his face was completely
covered with blood. He was also missing several teeth.
Zavala lapsed in and out of consciousness, sometimes
screaming or moaning about his pain.
Zavala was taken to Stanford Hospital, where Detective
James Simpson interviewed him at approximately 1:30 or 1:45
a.m. Zavala told him that two male Hispanic assailants and a
female named Cyndia were involved. On or about May 17, 1987,
Zavala picked Ontiveros out of a photo lineup.
Detective Ronald Williams testified that on May 6, 1987,
Zavala described the knife wielder as being an Hispanic male
adult, 23 to 24 years of age, 5 feet, 9 to 10 inches tall,
160 pounds, straight dark brown hair to his collar, and a
very dark complexion. When Williams subsequently showed
Zavala a photograph taken of defendant at the time of his
arrest on May 28, 1987, Zavala said that the man in the photo
looked Black to him, and that the skin tone and hair length
in the photo closely resembled the knife wielder as he
appeared the night of the murder. A citation issued to
defendant on May 2, 1987, gave his weight as 170 pounds, and
height as 5 feet, 8 inches tall.
On July 19, 1987, a search team found a survival-type
knife alongside the freeway in the area where Ontiveros
thought defendant had rolled down the rear car window as they
drove from the crime scene. The knife had bloodstains both
on its blade and hilt and on a capsule contained inside the
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handle. The knife blade was just short of nine inches, with
a maximum width of one and one-half inches. Ontiveros, upon
being shown the knife, immediately identified it as the one
carried by defendant.
The forensic pathologist’s autopsy of Barragan disclosed
21 stab and incise wounds consistent with infliction by a
large knife-type instrument. Six of the wounds were to the
face and head, one of which was a large, irregular, jagged
wound in the lip that went through to the anterior part of
the neck. There was a six-inch-deep wound in the right leg
above the knee. One four-inch-deep stab wound in the chest
had cut the rib cartilage in half and sliced the right lung,
while another one five inches deep had also damaged the right
lung. There was also a large, gaping, complex, eight-inchdeep wound, possibly caused by several thrusts through the
same skin hole, that cut the right jugular vein in half and
perforated the right lung. The location of the wounds to the
torso and upper body was consistent with overhand-type
thrusts. Of the 21 wounds, 17 were located on the right side
of the body, while 4 were on the left; this was consistent
with face-to-face stabbing by a left-handed assailant. The
cause of death was loss of blood with air embolism.
Three bloody fingerprints, apparently made by the same
finger, were found at the crime scene. They had an arch
pattern found only in 5 percent of the population, and did
not match the prints of the victims, the suspects or those
persons whose presence at the scene was logged. A smeared
set of comparison prints for James Williams, a tenant in a
nearby unit, showed an arch pattern, but Williams could not
be located to make a further comparison.
An examination of defendant’s car disclosed one of
Garcia’s fingerprints, but none of defendant’s. However, on
the back of the front seat backrest, police found a partial
shoe print that had the same class characteristics as a pair
of shoes belonging to defendant. Those shoes indicated the
presence of blood in two spots.
Prosecution criminalist Elizabeth Skinner performed a
blood-typing analysis, and determined that Zavala and
Barragan both had type A blood, differing only in the EAP
genetic marker system. Defendant and Garcia both had type O
blood. In the TF (or transferrin) genetic marker system,
defendant’s type was CD, a type shared by less than 3 percent
of the population. Neither Garcia nor the two victims had CD
transferrin.
Although various bloodstains were found in defendant’s
car and a few blood drops were discovered outside the
apartment, many were of insufficient quantity to perform
blood-typing analysis. However, type O blood, with the CD
type in the TF system, was discovered on the floormat in
defendant’s car. Blood on a paper tissue in the trunk of the
car was found to be consistent with the blood of either
Zavala or Barragan, but not with the blood of defendant or
Garcia. Of three spots of blood found outside the brothers’
apartment on the pavement leading to Pierce Road, one may
have been type A or a mix of type A and type O; the other two
were insufficient to produce test results.
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Inside Zavala’s apartment, there were copious
bloodstains on the living room carpet and walls. Blood was
found on the front door, the couch, the television, the
stereo, a telephone book, a mattress in the bedroom, and on
the walls, sink and window in the bathroom. Skinner tested
the blood samples and was able to determine that all of the
blood surrounding Barragan was consistent with his type.
Although Skinner could not say that blood belonging to
defendant was found in the apartment, she opined, in response
to hypotheticals, that if an attacker had been bleeding from
a forearm wound, the attacker’s blood might not be found if
the length of the attack was a matter of minutes and the
wound was enclosed in the long sleeve of a jacket so that the
clothing would absorb the blood. She also indicated that
because Barragan had bled so profusely, small amounts of an
attacker’s blood might go undetected.
Skinner also tested the blood on the knife found by the
freeway. Skinner testified that the hilt of the knife had
human blood on it, but that a lot of the blood on the blade,
being very dry and crusty, had flaked off by the time she
examined it. As for the bloodstains found on the plastic
capsule inside the knife handle, Skinner found a strong
reaction for type O blood, and a weak reaction for type A
blood, suggesting the possible presence of both types.
2. The Defense Case
Defendant did not take the stand. His defense was that
he was not present and had nothing to do with the crime.
There was no physical evidence placing defendant at the
scene, and the surviving victim could not positively identify
him.
Maria Vargas had initially described the first man to
come down the stairs on the night of the murder as a “Black”
man when speaking to the 911 dispatcher and the police.
Vargas failed to identify defendant when shown a photo lineup
on May 27, 1987, and identified him for the first time at the
preliminary hearing. At that hearing, defendant was wearing
an orange jumpsuit and was seated at the defense table behind
a nameplate that said “defendant.”
Nathan Howard, testifying for the defense, disclosed
that he had known Juan Garcia since 1967, and in the past had
even identified himself as Garcia's “partner.” Although he
had met defendant a couple of times, he was unaware of any
friendship between defendant and Garcia, and had never seen
them socialize together. Howard also testified that he knew
defendant's brother, Raymond, and that he had run into
Raymond at Highland Hospital one morning in May 1987. Raymond
told Howard that a transmission had fallen on defendant's
arm.
Defendant's sister, Norma, testified that when defendant
arrived at her home at 4:10 a.m. on or about May 5, 1987, he
was covered with dirt and grime, and had car grease on his
face and hands. Although defendant asked for a bandage and
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wanted to be taken to Raymond's house, Norma did not notice
that he was injured, or that he needed to go to the hospital.
Defendant said he had been working on his car. He was bald at
the time, and looked normal but dirty.

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Petitioner was convicted by a jury of one count of murder,

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two counts of attempted robbery, one count of burglary, and the

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special circumstances that he committed the murder while engaged

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in the crime of robbery or attempted robbery and while engaged in

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the crime of burglary.

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same jury.

United States District Court
For the Northern District of California

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II.

Petitioner was sentenced to death by the

Procedural background

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Petitioner appealed his conviction and sentence to the

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California Supreme Court, which, on December 1, 1994, upheld the

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judgment in its entirety, finding “no prejudicial error at the

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guilt or penalty phase of [Petitioner’s] trial.”

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Cal. 4th at 1095.

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petitions in the California Supreme Court.

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of the habeas claims in Petitioner’s 1994 petition on the merits,

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except claim seventeen, which was denied as moot.

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denied claim four in part with regard to one allegation on the

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independent ground that Petitioner failed to raise the issue on

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direct appeal.

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Petitioner’s 1998 petition on the merits, as well as some claims

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as untimely, successive, or for failure to raise on appeal.

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May 27, 1999, Petitioner filed the present petition.

Rodrigues, 8

In 1994 and 1998, Petitioner filed habeas
The court denied all

The court also

The court denied all of the habeas claims in

On

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On September 25, 2002, this Court stayed all proceedings on

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Petitioner’s federal habeas petition pending litigation in state

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court concerning his entitlement to relief under Atkins v.

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Virginia, 536 U.S. 304 (2002), which prohibits execution of the
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mentally retarded.

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stipulation and order were filed in the Superior Court of San

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Mateo County vacating Petitioner’s death sentence and sentencing

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him to life imprisonment without the possibility of parole.

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On February 8, 2010, pursuant to Atkins, a

Given the state court action, on July 12, 2010 this Court

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denied as moot claims six through eight, twenty-three, twenty-five

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through forty, forty-two, forty-three, forty-five, and forty-six

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of Petitioner’s petition, because they were related only to the

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death penalty.

United States District Court
For the Northern District of California

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Remaining for adjudication are the following claims: claim

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one: Petitioner was tried while incompetent; claim two: the trial

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court failed to hold a competency hearing; claim three:

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ineffective assistance of counsel for failure to seek a competency

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hearing; claim four: juror misconduct; claim five: bias in jury

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selection; claim nine: ineffective assistance of trial counsel

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during the guilt phase of trial; claim ten: ineffective assistance

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of counsel due to trial counsel’s conflict of interest; claim

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eleven: admission of videotape evidence; claim twelve: admission

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of unreliable hearsay identification evidence; claim thirteen:

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exclusion of impeachment evidence; claim fourteen: prosecution’s

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failure to preserve evidence; claim fifteen: innocence of capital

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murder; claim sixteen: prejudicial re-reading of testimony during

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deliberations; claim seventeen: insufficient evidence; claim

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eighteen: denial of the right to present a defense; claim

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nineteen: errors in jury instructions; claim twenty: prosecution’s

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failure to disclose impeachment evidence; claim twenty-one:

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prosecution’s use of false testimony and failure to correct false

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testimony; claim twenty-two: withholding of discovery; claim
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twenty-four: witness tampering; claim forty-one: erroneous removal

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of potential jurors for cause; claim forty-four: ineffective

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assistance of appellate counsel; and claim forty-seven: cumulative

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error.

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In addition to his request for relief on the merits,

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Petitioner requests discovery on claims four, five, nine, ten, and

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twenty and an evidentiary hearing for claims one, three, four,

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five, nine, ten, fourteen, twenty and twenty-one.

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III. Procedural Default

United States District Court
For the Northern District of California

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Under the independent and adequate state ground doctrine,

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federal courts will not review questions of federal law decided by

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a state court if the decision also rests on a state law ground

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that is independent of the federal question and adequate to

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support the judgment.

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(1991), overruled on other grounds by Martinez v. Ryan, 132 S. Ct.

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1309 (2012).

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interests of comity and federalism.

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procedural default is a specific application of the adequate and

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independent state ground doctrine that bars a federal court from

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granting habeas relief when a state court declined to address the

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claim because the petitioner failed to meet a state procedural

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requirement.

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1997).

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remains the “main event” rather than a “tryout on the road” for a

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later federal habeas proceeding.

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72, 90 (1977).

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Coleman v. Thompson, 501 U.S. 722, 729-30

In the habeas context, this doctrine furthers the
Id. at 730.

The doctrine of

Fields v. Calderon, 125 F.3d 757, 762 (9th Cir.

This doctrine helps ensure that the state criminal trial

Wainwright v. Sykes, 433 U.S.

The procedural default analysis requires two steps.

First,

the court must consider whether the procedural rule invoked by the
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last state court to render judgment in the case to bar a claim is

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both “independent” and “adequate” to preclude federal review.

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Second, if the bar invoked is independent and adequate, federal

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review of the merits of the claim will be barred unless the

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petitioner can show cause and prejudice or a fundamental

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miscarriage of justice.

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(2012); Coleman, 501 U.S. at 750; Vansickel v. White, 166 F.3d

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953, 957-58 (9th Cir. 1999).

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assistance of counsel will satisfy the cause test, Walker v.

See Maples v. Thomas, 132 S. Ct. 912, 922

Constitutionally ineffective

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For the Northern District of California

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Martel, 709 F.3d 925, 938 (9th Cir. 2013), as will "some objective

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factor external to the defense" that impedes counsel's efforts to

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comply with the procedural rule, Murray v. Carrier, 477 U.S. 478,

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488 (1986).

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the burden of showing, not merely that the errors . . . created a

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possibility of prejudice, but that they worked to his actual and

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substantial disadvantage, infecting his entire trial with error of

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constitutional dimensions."

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170 (1982) (emphasis in original).

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exception applies where "new evidence shows 'it is more likely

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than not that no reasonable juror would have convicted [the

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petitioner].'"

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(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

To demonstrate prejudice, a petitioner must "shoulder

United States v. Frady, 456 U.S. 152,
The miscarriage of justice

McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013)

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A.

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Respondent contends that claims four, five, nine, ten,

Untimeliness

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twelve, thirteen, fifteen, nineteen, twenty, and twenty-one are

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procedurally defaulted and therefore barred from federal review

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because the California Supreme Court denied these claims as

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untimely.

Petitioner disagrees, stating that his petition was
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filed prior to the issuance of In re Robbins, 18 Cal. 4th 770

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(1998), and that California’s untimeliness rule was neither

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adequate nor independent at that time.

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1.

5

California’s Untimeliness Rule

“California does not employ fixed statutory deadlines to

6

determine the timeliness of a state prisoner’s petition for habeas

7

corpus.

8

claims ‘as promptly as the circumstances allow.’”

9

Martin, 562 U.S. 307, 310 (2011) (quoting In re Clark, 5 Cal. 5th

Instead, California directs petitioners to file known
Walker v.

United States District Court
For the Northern District of California

10

750, 765 n.5 (1993)).

11

Regarding Cases Arising From Judgments of Death, Timeliness

12

Standards (Policies), a habeas corpus petition is presumed to be

13

filed without substantial delay if it is filed within 180 days

14

from the due date of the reply brief on direct appeal, or within

15

thirty-six months after the appointment of habeas counsel,

16

whichever is later.1

17

Under California’s Supreme Court Policies

Petitioner’s appellate counsel was appointed on August 7,

18

1989 and maintained continuous representation throughout his first

19

state petition for writ of habeas corpus.

20

was no separate appointment of habeas corpus counsel.

21

brief in Petitioner's appeal was due and filed on August 17, 1993.

22

His first state petition for habeas corpus was filed on November

23

10, 1994, 450 days after the submission of the reply brief in his

24

appeal and more than four years following the appointment of

25
26
27
28

1

Ex. 162 at 4.

There

The reply

When the Policies were first propounded in 1990,
petitioners were afforded a presumption of timeliness for sixty
days following the due date for the reply brief on direct appeal.
This presumption period was extended to ninety days on January 22,
1998, and then to 180 days on July 17, 2002.
12

1

appellate counsel.

2

March 6, 1998, an additional two and a half years later.

3

the claims that Respondent asserts are barred by the adequate and

4

independent untimeliness bar are from Petitioner’s second state

5

petition for writ of habeas corpus.

6

first state petition for writ of habeas corpus, when the untimely

7

claims should have been raised, was not presumptively timely.

8
9

2.

His second state habeas petition was filed on
All of

Under the Policies, even the

Adequacy of the Untimeliness Bar

For a state procedural rule to be “adequate,” it must be

United States District Court
For the Northern District of California

10

clear, well-established at the time of the purported default, and

11

consistently applied.

12

(Bean), 96 F.3d 1126, 1129 (9th Cir. 1996).

13

judging the bar's adequacy is the date the first state habeas

14

petition was filed.

15

(Hayes), 103 F.3d 72, 75 (9th Cir. 1996).

16

November 10, 1994.

17

Calderon v. United States Dist. Court
The critical date for

See Calderon v. United States Dist. Court
Here, that date is

The state bears the ultimate burden of proving the adequacy

18

of a state procedural rule.

19

585-86 (9th Cir. 2003).

20

plead the existence of an adequate and independent procedural

21

ground as a defense, the burden to place that defense at issue

22

shifts to the petitioner, who “may satisfy this burden by

23

asserting specific factual allegations that demonstrate the

24

inadequacy of the state procedure, including citation to authority

25

demonstrating inconsistent application of the rule.”

26

The petitioner's burden at this stage is "modest."

Dennis v.

27

Brown, 361 F. Supp. 2d 1124, 1129 (N.D. Cal. 2005).

Once a

28

petitioner has placed the adequacy of a particular bar into

Bennett v. Mueller, 322 F.3d 573,

However, once the state has adequately

13

Id. at 586.

1

question, the ultimate burden is the state’s.

2

at 586.

3

Bennett, 322 F.3d

As the Court explains below, the state has met its burden

4

under Bennett of pleading an adequate state bar.

5

Court and Ninth Circuit case law, the adequacy of California's

6

untimeliness bar was firmly established in 1993.

7

at 763-64; see also Martin, 562 U.S. at 316-321 (holding that

8

discretion and exceptions do not render California's untimeliness

9

bar inadequate).

United States District Court
For the Northern District of California

10

Under Supreme

Fields, 125 F.3d

In an attempt to remedy adequacy concerns with the

11

untimeliness bar, the California Supreme Court decided Clark, 5

12

Cal. 4th 750, which clarified the law surrounding the procedural

13

bar of untimely filing and its exceptions.

14

‘reestablish California’s procedural rules governing state habeas

15

petitions and clearly define and limit the applicable

16

exceptions.’”

17

Cir. 2000) (quoting Fields, 125 F.3d at 763-64).

18

guidance in Clark, however, some federal courts continued to find

19

the untimeliness bar inadequate.

20

Clark was "intended to

Park v. California, 202 F.3d 1146, 1151-52 (9th
Despite the

In Bennett, the Ninth Circuit noted the dilemma facing courts

21

trying to assess the post-Clark adequacy of the untimeliness bar.

22

“Before Clark, the California untimeliness standards were applied

23

inconsistently to some fact patterns.”

24

the court was unconvinced that Clark remedied the inconsistent

25

application: just because “the California Supreme Court set out

26

[with Clark] to create a rule that would be consistently applied,

27

. . . it does not follow that the rule in historical fact has been

28

so applied.”

Id.

322 F.3d at 583.

However,

It recognized that district courts "had the
14

1

opportunity to analyze the consistency of application of the Clark

2

rule, reaching opposing results," and remanded for resolution of

3

the adequacy question.

4

Knowles, the Ninth Circuit held that the government did not

5

satisfy its burden of proof because it offered "no evidence that

6

California operated under clear standards for determining what

7

constituted 'substantial delay' in 2001."

8

(9th Cir. 2009), abrogated by Martin, 562 U.S. 307.

9

Id. at 583-84.

Later, in Townsend v.

562 F.3d 1200, 1208

In Martin, the United States Supreme Court granted certiorari

United States District Court
For the Northern District of California

10

to determine the adequacy of California’s untimeliness bar.

11

U.S. at 315.

12

the bar to be inadequate, which had relied on Townsend, the

13

Supreme Court stated that a "discretionary rule ought not be

14

disregarded automatically upon a showing of seeming

15

inconsistencies.

16

specific considerations and to avoid the harsh results that

17

sometimes attend consistent application of an unyielding rule.”

18

Id. at 320.

19

untimeliness bar is inadequate, finding "no inadequacy in

20

California's timeliness rule generally."

21

562

In reversing the Ninth Circuit’s decision holding

Discretion enables a court to home in on case-

Martin thus vitiated the argument that the

Id. at 321.

Petitioner makes several arguments attempting to distinguish

22

the Supreme Court's conclusion that the rule in Clark is adequate.

23

First, he argues that Martin does not apply to his case because

24

his first habeas petition was filed in 1994, several years prior

25

to the issuance of Robbins.

26

(explaining that in Robbins the California Supreme Court adopted a

27

prospective approach declining to consider federal law when

28

deciding whether claims are procedurally defaulted).

See Park, 202 F.3d at 1152-53

15

However, as

1

discussed below, Robbins addressed the untimeliness bar's

2

independence, not its adequacy.

3

Second, he argues that Martin did not overturn Ninth Circuit

4

case law holding that, prior to the issuance of Robbins, the rule

5

was not adequate.

6

Third, he argues that Martin does not apply here because it

7

did not address adequacy in capital cases.

8

California Supreme Court established the rule's adequacy, even in

9

capital cases, in 1993 with Clark.

However, the

In King v. LaMarque, 464 F.3d

United States District Court
For the Northern District of California

10

963, 966 (9th Cir. 2006), the Ninth Circuit made clear that Clark

11

itself contemplated capital cases.

12

The court stated:

California’s timeliness rule applies to both capital and
noncapital cases. In capital cases, California’s
[Policies] create a presumption of timeliness if a
petition “is filed within 90 days of the final due date
for the filing of an appellant’s reply brief.” Clark,
21 Cal. Rptr. 2d 509. The Policies also create more
explicit standards for deciding whether there has been
substantial delay when the petitioner has filed after
the ninety-day presumption period. Id. at 751–53.
Clark clarified the application of these Policies within
capital cases and provided four specific exceptions for
granting review even when a petition’s “substantial
delay” is unjustified. Id. at 758–59.

13
14
15
16
17
18
19

Id.

20

Clark established an adequate procedural bar in 1993, the Ninth

21

Circuit made clear that Clark applied to capital cases.

22

Thus, even before the Supreme Court concluded in Martin that

Petitioner has not made a showing sufficient to rebut the

23

adequacy of the untimeliness bar, as required by Bennett.

24

Accordingly, the Court concludes that Respondent has met his

25

burden of pleading an adequate state bar and that Petitioner has

26

failed to satisfy his burden.

27

//

28

//
16

1

3.

2

Independence of the Untimeliness Bar

The procedural bar must also be independent when applied to

3

result in a default.

4

decided Robbins, declaring that it would no longer consider

5

federal law when denying a habeas claim as procedurally barred for

6

untimeliness.

7

Ninth Circuit explained that a post-Robbins denial based on

8

California's untimeliness bar is an independent procedural ground.

9

322 F.3d at 581-83.

United States District Court
For the Northern District of California

10

In 1998, the California Supreme Court

18 Cal. 4th at 811-12.

In Bennett v. Mueller, the

The question of whether the application of a procedural rule

11

was independent of federal law is assessed at the time the state

12

court rejects a claim as procedurally defaulted, because the issue

13

is whether that state court decision was based solely on state

14

law.

15

that its new approach is prospective, and would not have applied

16

when the California Supreme Court denied Park’s habeas petition”);

17

Dennis, 361 F. Supp. 2d at 1127 ("To determine whether a state-

18

court decision is independent of federal law, a federal court must

19

examine the decision itself in which the state court invoked the

20

procedural bar, as distinguished from other state-court decisions

21

issued at or prior to the time that the purported procedural

22

defaults occurred.").

23

three years following the issuance of Robbins.

24

Respondent has plead the existence of an independent procedural

25

bar.

26

See, e.g., Park, 202 F.3d at 1153 (“Robbins is clear . . .

The decision at issue here was in 2001,
Accordingly,

Because Petitioner has failed to satisfy his burden under

27

Bennett, claims four, five, nine, ten, twelve, thirteen, fifteen,

28

nineteen, twenty, and twenty-one are procedurally defaulted
17

1

because they are barred by the adequate and independent

2

untimeliness bar unless Petitioner can show cause and prejudice or

3

a fundamental miscarriage of justice.

4

of whether Petitioner is entitled to exceptions to default

5

involves an examination of the merits of Petitioner’s claims, the

6

Court will address the exceptions in the context of the merits of

7

each claim, after the discussion of Respondent's other procedural

8

default arguments.

9

Cir. 1982) (stating that, if deciding merits of claims proves to

Because the determination

See Batchelor v. Cupp, 693 F.2d 859, 864 (9th

United States District Court
For the Northern District of California

10

be more efficient than adjudicating exceptions to procedural

11

default, a court may exercise discretion to take this course of

12

action).

13

B.

14

Respondent asserts that claims eleven, twelve, thirteen,

Contemporaneous Objection Rule

15

sixteen, and nineteen are defaulted in whole or in part based on

16

the independent and adequate state ground of the contemporaneous

17

objection bar.

18

regarding any of these claims and instead refers back to the

19

answer.

20

asserting an affirmative defense of procedural default based on

21

the contemporaneous objection bar.

22

from the California Supreme Court decision denying Petitioner’s

23

appeal that note some instances when Petitioner failed to object

24

in whole or in part at trial.

25

court found it "unnecessary to decide the issue[] of waiver” and

26

instead denied the claim on the merits.

27

1123.

Respondent does not make any specific arguments

The answer, however, also makes no specific argument

It does contain quotations

For example, for claim sixteen, the

28
18

Rodrigues, 8 Cal. 4th at

1

As noted above, to preserve and present an affirmative

2

defense based on procedural default, Respondent must plead “the

3

existence of an adequate and independent state procedural ground.”

4

King, 464 F.3d at 967.

5

requires Respondent to “state in short and plain terms [his]

6

defenses to each claim.”

7

decision is insufficient on its own to assert an affirmative

8

defense.

9

affirmatively and identify it with sufficient particularity that

Federal Rule of Civil Procedure 8(b)(1)(A)

A recitation of the state court’s

Respondent is required to state the defense

United States District Court
For the Northern District of California

10

the court can discern the portions of the claim to which

11

Respondent objects.

12

failed to do so and, therefore, has failed to satisfy his burden

13

under Bennett.

14

sixteen, and nineteen are not defaulted in whole or in part based

15

on the contemporaneous objection bar, although, as discussed

16

above, claims twelve, thirteen, and nineteen are defaulted based

17

on the untimeliness bar.

Fed. R. Civ. P. 8(c)(1), (d).

Respondent has

Accordingly, claims eleven, twelve, thirteen,

18

C.

19

Respondent alleges that claims four, five, nine, ten,

Successive Claims

20

fifteen, twenty, and twenty-one are defaulted due to the adequate

21

and independent bar against successive claims and petitions.

22

California Supreme Court bars “newly presented grounds for relief

23

which were known to the petitioner at the time of a prior

24

collateral attack on the judgment,” as well as claims that are

25

presented in a piecemeal or delayed fashion.

26

768.

27
28

The

Clark, 5 Cal. 4th at

As noted above, Petitioner filed two petitions for writ of
habeas corpus in the California Supreme Court.
19

The first was

1

filed on November 10, 1994, and the second on March 6, 1998.

2

its order denying the second petition, the California Supreme

3

Court denied as successive the claims that are numbered four,

4

five, nine, ten, fifteen, twenty, and twenty-one in the present

5

petition.

6

In

Nonetheless, Respondent has failed to plead the existence of

7

an adequate and independent successive claims state bar.

8

Respondent relies on the reasoning in Martin to support the claim

9

that this bar is adequate to preclude review.

He also relies on

United States District Court
For the Northern District of California

10

district court decisions that use Martin to support the adequacy

11

of this particular bar.

12

However, the Ninth Circuit recently held that Martin dealt

13

specifically with the untimeliness bar and was limited in its

14

reach because it applied only to truly discretionary rules.

15

v. Jacquez, 788 F.3d 1124, 1129-31 (9th Cir. 2015), rev'd on other

16

grounds by Johnson v. Lee, 136 S. Ct. 1802 (2016).

17

Lee and the Circuit’s prior case law refusing to find the bar

18

adequate, Respondent fails to meet his burden.

19

therefore, are not procedurally defaulted on this ground, though

20

they are precluded from federal review by the timeliness bar.

Lee

In light of

These claims,

21

D.

22

Respondent asserts that claims four, five, nine, twelve,

Reasserted Claims

23

thirteen, fifteen, nineteen, twenty and twenty-one are

24

procedurally defaulted because the California Supreme Court

25

rejected them based on two bars that prohibit reevaluating claims

26

after they have been presented previously to the court for

27

consideration.

28
20

1

First, the California Supreme Court denied the claims that

2

are now numbered twelve, thirteen, nineteen, twenty and twenty-

3

one, “to the extent [they] allege claims other than ineffective

4

assistance of counsel that were raised and rejected on appeal,” as

5

barred by In re Waltreus, 62 Cal. 2d 218, 225 (1965).

6

provides that “‘any issue that was actually raised and rejected on

7

appeal cannot be renewed in a petition for writ of habeas

8

corpus.’”

9

(quoting In re Harris, 5 Cal. 4th 813, 829 (1993)) (emphasis in

Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996)

10
United States District Court
For the Northern District of California

Waltreus

original).

11

Bean, 96 F.3d at 1131.

12

not precluded from federal review based on Waltreus.

A Waltreus citation does not bar federal review.

See

Therefore, the above-referenced claims are
See id.

13

Second, the California Supreme Court rejected what are now

14

claims four, five, nine, fifteen, twenty and twenty-one, to the

15

extent they “duplicate claims raised and rejected in Petitioner’s

16

first petition for writ of habeas corpus,” as barred by In re

17

Miller, 17 Cal. 2d 734 (1941).

18

presentation of claims already presented in an earlier adjudicated

19

petition where there has been “no change in the facts or the law

20

substantially affecting the rights of the petitioner.”

21

Cal. 4th at 769–70; Miller, 17 Cal. 2d at 735.

22

this bar merely prohibits the repetitious presentation of claims

23

already reviewed by the state court, it does not preclude federal

24

review.

25

(“Since a later state decision based upon ineligibility for

26

further state review neither rests upon procedural default nor

27

lifts a pre-existing procedural default, its effect upon the

28

availability of federal habeas is nil[.]”).

Miller bars the repetitious

Clark, 5

Again, because

See Ylst v. Nunnemaker, 501 U.S. 797, 804 n.3 (1991)

21

Accordingly, claims

1

four, five, nine, twelve, thirteen, fifteen, nineteen, twenty, and

2

twenty-one are not procedurally barred by the California Supreme

3

Court’s refusal to revisit them because they had been presented in

4

earlier filings.

5

the independent and adequate state timeliness bar, as noted above.

They are, however, barred from federal review by

6

E.

7

Petitioner alleges that his constitutional rights were

Failure to Raise Claim Five on Direct Appeal

violated by the processes used to select and impanel the jury.

9

Respondent asserts that the claim is procedurally defaulted in

10
United States District Court
For the Northern District of California

8

that the California Supreme Court denied this claim because it

11

“could have been, but w[as] not, raised on appeal,” citing In re

12

Dixon, 41 Cal. 2d 756, 759 (1953).

13

the existence of this independent and adequate state bar.

14

Respondent has failed to plead

Adequacy of the Dixon bar is determined at the time the

15

direct appeal was filed.

16

Court recently addressed California's Dixon bar in the context of

17

a petitioner's June 1999 petition.

18

of that date, the Dixon bar was "firmly established" because "the

19

California Supreme Court eliminated any arguable ambiguity

20

surrounding this bar by reaffirming Dixon in two cases decided

21

before" June 1999.

22

two cases, Harris, was decided on July 19, 1993 and modified on

23

September 30, 1993.

24

the California Supreme Court on February 22, 1993, before the

25

California Supreme Court firmly established the Dixon bar.

26

Respondent has failed to meet his burden of showing that the Dixon

27

bar is adequate to preclude federal review of this claim.

Fields, 125 F.3d at 760-61.

The Supreme

The Court explained that, as

Lee, 136 S. Ct. at 1805.

The earlier of the

Here, Petitioner filed his opening brief in

28
22

Thus,

The

1

claim is, however, procedurally defaulted on the grounds that it

2

was untimely.

3

IV.

4

Merits of Petitioner’s Claims
A federal court may entertain a habeas petition from a state

5

prisoner “only on the ground that he is in custody in violation of

6

the Constitution or laws or treaties of the United States.”

7

U.S.C. § 2254(a).

8

Penalty Act (AEDPA) of 1996, a district court may not grant habeas

9

relief unless the state court’s adjudication of the claim:

28

Under the Antiterrorism and Effective Death

United States District Court
For the Northern District of California

10

“(1) resulted in a decision that was contrary to, or involved an

11

unreasonable application of, clearly established Federal law, as

12

determined by the Supreme Court of the United States; or

13

(2) resulted in a decision that was based on an unreasonable

14

determination of the facts in light of the evidence presented in

15

the State court proceeding.”

16

Taylor, 529 U.S. 362, 412 (2000).

17

28 U.S.C. § 2254(d); Williams v.

Section 2254(d) applies when the claim was “adjudicated on

18

the merits” in state court.

19

reasoned decisions.

20

state court and the state court has denied relief, it may be

21

presumed that the state court adjudicated the claim on the merits

22

in the absence of any indication or state-law procedural

23

principles to the contrary.”

24

99 (2011) (analyzing a one-sentence order denying a habeas

25

petition under § 2254(d)); Johnson v. Williams, 133 S. Ct. 1088,

26

1096 (2013) (order that discusses state law claim but not federal

27

claim rebuttably presumed to be rejection on the merits and

28

therefore subject to § 2254(d)).

It covers both unexplained and

“When a federal claim has been presented to a

Harrington v. Richter, 562 U.S. 86,

"The presumption may be overcome
23

1

when there is reason to think some other explanation for the state

2

court’s decision is more likely."

3

The state court decision to which § 2254(d) applies is the “last

4

reasoned decision” of the state court.

5

Barker v. Fleming, 423 F.3d 1085, 1091-92 & n.3 (9th Cir. 2005);

6

Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003) (describing

7

the Ninth Circuit's "practice of 'looking through' ambiguous or

8

un-explained state court decisions" following Ylst).

9

Harrington, 562 U.S. at 99-100.

See Ylst, 501 U.S. at 804;

A state court decision is “contrary to” Supreme Court

United States District Court
For the Northern District of California

10

authority, that is, falls under the first clause of § 2254(d)(1),

11

only if “the state court arrives at a conclusion opposite to that

12

reached by [the Supreme] Court on a question of law or if the

13

state court decides a case differently than [the Supreme] Court

14

has on a set of materially indistinguishable facts.”

15

529 U.S. at 412-13.

16

application of” Supreme Court authority under the second clause of

17

§ 2254(d)(1) if it correctly identifies the governing legal

18

principle from the Supreme Court’s decisions but “unreasonably

19

applies that principle to the facts of the prisoner’s case.”

20

at 413.

21

Williams,

A state court decision is an “unreasonable

Id.

The federal court on habeas review may not issue the writ

22

“simply because that court concludes in its independent judgment

23

that the relevant state-court decision applied clearly established

24

federal law erroneously or incorrectly.”

25

application must be “objectively unreasonable” to support granting

26

the writ.

27

“where there is no possibility fairminded jurists could disagree

Id. at 409.

Id. at 411.

Rather, the

Under AEDPA, the writ may be granted only

28
24

1

that the state court’s decision conflicts with this Court’s

2

precedents.”

Harrington, 562 U.S. at 102.

3

In reviewing the reasonableness of a state court’s decision

4

to which § 2254(d)(1) applies, a district court may rely only on

5

the record that was before the state court.

6

Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that new

7

evidence presented at a federal court evidentiary hearing cannot

8

be considered in assessing whether state court’s decision “was

9

contrary to, or involved an unreasonable application of, clearly

United States District Court
For the Northern District of California

10
11

See Cullen v.

established Federal law” under § 2254(d)(1)).
If constitutional error is found, habeas relief is warranted

12

only if the error had a “substantial and injurious effect or

13

influence in determining the jury’s verdict.”

14

532 U.S. 782, 795 (2001).

15

habeas court may grant the writ if it concludes that the state

16

court’s adjudication of the claim “resulted in a decision that was

17

based on an unreasonable determination of the facts in light of

18

the evidence presented in the State court proceeding.”

19

§ 2254(d)(2).

20

categories.

21

the state court’s findings and attempt to show that those findings

22

were not supported by substantial evidence in the state court

23

record . . . Second, a petitioner may challenge the fact-finding

24

process itself on the ground that it was deficient in some

25

material way.”

26

Cir. 2012) (citing Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th

27

Cir. 2004)).

28

when the state court fails to consider and weigh highly probative,

Penry v. Johnson,

Under 28 U.S.C. § 2254(d)(2), a federal

28 U.S.C.

Challenges under § 2254(d)(2) fall into two general

“First, a petitioner may challenge the substance of

Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th

An unreasonable determination of the facts occurs

25

1

relevant evidence, central to the petitioner’s claim, that was

2

properly presented and made part of the state-court record.

3

relevant question under § 2254(d)(2) is whether an appellate

4

panel, applying the normal standards of appellate review, could

5

reasonably conclude that the state court findings are supported by

6

the record.

7

2004).

8
9

The

Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir.

A state court need not conduct an evidentiary hearing to
resolve every disputed factual question in order for the state’s

United States District Court
For the Northern District of California

10

fact-finding procedures to be considered reasonable.

11

F.3d at 1147.

12

hold an evidentiary hearing -- so that the state court’s finding

13

would be entitled to deference under § 2254(d)(2)) -- to the

14

federal court’s duty to hold an evidentiary hearing, i.e., an

15

evidentiary hearing is not necessary if the record refutes the

16

petitioner’s factual allegations or otherwise precludes habeas

17

relief.

18

reasonably concluded that the evidence already adduced was

19

sufficient to resolve the factual question, it need not have held

20

an evidentiary hearing, and its factual findings must be given

21

deference.

22

2013).

23

court would be unreasonable in holding that an evidentiary hearing

24

was not necessary in light of the state court record.”

25

(citing Hibbler, 693 F.3d at 1148) (emphasis in original).

26

Hibbler, 693

The Hibbler court likened the state court’s duty to

See id. at 1147-48.

If the state court could have

See Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir.

The ultimate question “is whether [a state] appellate

Id.

However, even if a federal court finds that the state court

27

was unreasonable in resolving a factual dispute without an

28

evidentiary hearing, under 28 U.S.C. § 2254(e)(2), a district
26

court may not hold an evidentiary hearing on a claim for which the

2

petitioner failed to develop a factual basis in state court unless

3

the petitioner shows that: (A) the claim relies either on (i) a

4

new rule of constitutional law that the Supreme Court has made

5

retroactive to cases on collateral review, or (ii) a factual

6

predicate that could not have been previously discovered through

7

the exercise of due diligence; and (B) the facts underlying the

8

claim would be sufficient to establish by clear and convincing

9

evidence that, but for constitutional error, no reasonable fact

10
United States District Court
For the Northern District of California

1

finder would have found the applicant guilty of the underlying

11

offense.

12

determining whether a petitioner failed to develop the factual

13

basis in state court “‘depends upon whether [the petitioner] made

14

a reasonable attempt, in light of the information available at the

15

time, to investigate and pursue claims in state court[.]’

16

failure to investigate or develop a claim given knowledge of the

17

information upon which the claim is based, is not the exercise of

18

diligence.”

19

Cir. 2005) (quoting Williams, 529 U.S. at 435) (brackets in

20

original).

21

28 U.S.C. § 2254(e)(2).

Diligence for purposes of

The

Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th

Further, “an evidentiary hearing is pointless once the

22

district court has determined that § 2254(d) precludes habeas

23

relief.”

24

(citing Pinholster, 131 S. Ct. at 1411 n.20 (“Because Pinholster

25

has failed to demonstrate that the adjudication of his claim based

26

on the state-court record resulted in a decision ‘contrary to’ or

27

‘involv[ing] an unreasonable application’ of federal law, a writ

Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013)

28
27

1

of habeas corpus ‘shall not be granted’ and our analysis is at an

2

end”) (quoting 28 U.S.C. § 2254(d))).

3

"A habeas petitioner, unlike the usual civil litigant in

4

federal court, is not entitled to discovery as a matter of

5

ordinary course."

6

To the extent a petitioner’s claims are governed by § 2254(d)(1),

7

he is not entitled to discovery because “the review of such claims

8

‘is limited to the record that was before the state court that

9

adjudicated the claim on the merits.’”

Bracy v. Gramley, 520 U.S. 899, 904 (1997).

Runningeagle v. Ryan, 686

United States District Court
For the Northern District of California

10

F.3d 758, 773 (9th Cir. 2012) (quoting Pinholster, 131 S. Ct. at

11

1398).

12

discovery, the federal habeas court must first identify the

13

essential elements of the underlying claim.

14

at 904-05 (holding that, difficulties of proof aside, petitioner’s

15

allegation of judicial bias, if proved, would violate due process

16

clause).

17

shown “good cause” for appropriate discovery to prove his claim.

18

See id.

19

Before deciding whether a petitioner is entitled to

See Bracy, 520 U.S.

The court must then determine whether the petitioner has

Good cause for discovery is shown “where specific allegations

20

before the court show reason to believe that the petitioner may,

21

if the facts are fully developed, be able to demonstrate that he

22

is . . . entitled to relief . . . .”

23

Terhune, 400 F.3d 740, 743 (9th Cir. 2005).

24

sitting in habeas," however, "are not an alternative forum for

25

trying facts and issues which a prisoner made insufficient effort

26

to pursue in state proceedings.”

27
28

Id. at 908-09; Pham v.
"Federal courts

Williams, 529 U.S. at 437.

Petitioner seeks discovery and an evidentiary hearing on some
claims.

In its July 12, 2010 order, the Court required Petitioner
28

1

to identify, in his traverse, “the disputed issues of material

2

fact and his evidence on those issues.”

3

Docket No. 304 at 2.

4

“Respondent’s Answer to the Amended Petition . . . does not

5

indicate which facts asserted by Mr. Rodrigues are deemed true,

6

and which are denied, other than a general denial,” he “cannot in

7

this Traverse identify the factual disputes, paragraph by

8

paragraph, and deny those factual assertions presented in the

9

Answer with which he disagrees.”

July 12, 2010 Order,

In response, Petitioner stated that, because

Traverse, Docket No. 348 at 1-2.

United States District Court
For the Northern District of California

10

Instead, Petitioner claims that it "appears from the Answer that

11

Respondent admits all the factual allegations in the Amended

12

Petition.

13

without a hearing.”

14

arguing that in his Answer he stated: “Except to the extent

15

expressly admitted herein, respondent denies each and every

16

material fact and legal characterization set forth in the

17

petition.”

18

discussion of each issue below, the Court analyzes whether any

19

material facts appear to be disputed and, if so, considers whether

20

Petitioner would be entitled to relief if the facts he alleges

21

were true.

22

material facts.

23

offered for Petitioner’s discovery requests regarding the specific

24

claims.

25

A.

26

Petitioner argues that he was tried while mentally

In that circumstance, the court may grant relief
Id. at 2.

Respondent disputes this claim,

Respondent’s Opp., Docket No. 354 at 17.

In its

In sum, the Court does not find any such disputed
The Court also considers the justifications

Claim one: tried while incompetent

27

incompetent.

28

evidentiary hearing, with regard to this claim.

He does not seek discovery, but he does seek an

29

1

A criminal defendant is competent to stand trial if he has

2

"sufficient present ability to consult with his lawyer with a

3

reasonable degree of rational understanding" and has "a rational

4

as well as factual understanding of the proceedings against him."

5

Godinez v. Moran, 509 U.S. 389, 396 (1993); see also Deere v.

6

Cullen, 718 F.3d 1124, 1144 (9th Cir. 2013); Douglas v. Woodford,

7

316 F.3d 1079, 1094 (9th Cir. 2003).

8

mental illness substantially affects a decision, but whether a

9

mental disease, disorder or defect substantially affects the

The question “is not whether

United States District Court
For the Northern District of California

10

prisoner’s capacity to appreciate his options and make a rational

11

choice among them.”

12

890 (9th Cir. 2004) (emphasis in original).

13

finding of competency to stand trial is presumed correct if fairly

14

supported by the record.

15

evidentiary hearing in state court is required for the presumption

16

to apply.

17

(1981)).

18

evidence to rebut the presumption.

19
20

Dennis ex rel. Butko v. Budge, 378 F.3d 880,
A state court’s

Deere, 718 F.3d at 1145.

No formal

Id. (citing Sumner v. Mata, 449 U.S. 539, 545-47
Petitioner must come forward with clear and convincing

1.

Deere, 718 F.3d at 1145.

Evidentiary hearing

Petitioner seeks an evidentiary hearing with regard to this

21

claim “[t]o the extent any facts are disputed.”

22

see 28 U.S.C. § 2254(e)(2).

23

several family members, acquaintances and medical professionals to

24

support his contentions that he was mentally impaired for most of

25

his life and was legally incompetent during the 1987 and 1988

26

pretrial and trial proceedings at issue.

27

first presented to the state court in his 1994 state habeas

28

petition, six years after his trial and conviction.

Traverse at 24;

His claim relies on declarations of

30

These declarations were

Petitioner

1

argues that the California Supreme Court, when confronted with

2

these facts, unreasonably denied the claim; the Supreme Court did

3

not accept the facts as true and, if Respondent disputed any of

4

those facts, it was unreasonable for that court to deny the claim

5

without the benefit of an evidentiary hearing.

6

On direct appeal, the California Supreme Court had rejected

7

Petitioner’s claim that the trial court should have ordered a

8

competency hearing, because the trial “record d[id] not

9

demonstrate a substantial doubt as to [Petitioner’s] competency.”

United States District Court
For the Northern District of California

10

Rodrigues, 8 Cal. 4th at 1112.

11

finding to support his argument that Petitioner's claim of actual

12

incompetency, later raised on habeas, should be rejected.

13

However, on appeal, the California Supreme Court did not address

14

whether Petitioner was actually incompetent at the time of his

15

trial; it only addressed whether the trial court was unreasonable

16

for not holding a competency hearing based on the evidence

17

presented before trial.

18

Respondent relies solely on this

All of the evidence Petitioner brings to bear with regard to

19

this claim was presented to the California Supreme Court, no

20

contrary evidence was presented to that court, and there are no

21

issues of disputed facts identified by either Petitioner or

22

Respondent.

23

merit.

24

merits, even if all of Petitioner’s facts are accepted as true,

25

there is no need for an evidentiary hearing.

26

at 1075.

27

hearing on this claim is DENIED.

28

//

Furthermore, as discussed below, the claim is without

Because the Court finds that this claim fails on its

See Sully, 725 F.3d

Accordingly, Petitioner’s request for an evidentiary

31

1
2

2.

Merits

Seven of the declarations Petitioner relies on are from

3

doctors and social workers who detail the abuse he suffered as a

4

child, his intellectual challenges in school, his history of

5

debilitating headaches, and his drug abuse.

6

relies on twenty-two declarations from childhood friends,

7

girlfriends and family members that detail his childhood abuse,

8

his headaches, and his drug use.

9

In addition, he

Of these declarations, only those of Dr. R.K. McKinzey, Ex.

United States District Court
For the Northern District of California

10

164, App. 10; Dr. Alfred W. Fricke, Ex. 165, App. 44; and Dr.

11

James R. Missett, Ex. 165, App. 42, state an expert opinion as to

12

Petitioner’s competence at the time of his trial based on their

13

contemporaneous examinations of and discussions with him.

14

remaining declarations (1) do not directly address Petitioner’s

15

competence at the time of his trial; (2) do not provide an opinion

16

as to Petitioner’s competence at the time of his trial and are

17

based on examinations done several years after his trial; or

18

(3) give a non-expert opinion on Petitioner’s functioning at the

19

time of his trial.

20

of dubious probative value and therefore, disfavored.”

21

Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003).

22

focuses its analysis on the opinions of the three mental health

23

experts who examined Petitioner around the time of his trial in

24

1987 and 1988.

The

“Belated opinions of mental health experts are
Deere v.

Thus, the Court

25

On June 22, 1987, prior to being evaluated by a mental health

26

expert, Petitioner appeared in municipal court for his preliminary

27

hearing.

28

during which Petitioner’s counsel told the judge that Petitioner

The municipal court judge held an in camera hearing

32

1

refused to waive time for the preliminary hearing even though

2

counsel needed more time to prepare for the hearing.

3

speaking with the municipal court judge, Petitioner agreed to

4

waive time.

After

5

Sometime in September 1987, one of Petitioner’s attorneys

6

contacted Dr. Fricke, a licensed psychologist, to examine him.

7

Dr. Fricke interviewed Petitioner.

8

Fricke stated that Petitioner “seemed of limited intelligence” and

9

that based on his review of Petitioner’s medical and corrections

In his 1994 declaration, Dr.

United States District Court
For the Northern District of California

10

records that were available to him around the time of Petitioner’s

11

trial and based on his interview of Petitioner, he believed that

12

Petitioner “had some neurological dysfunction.”

13

Fricke Dec. at 1.

14

Petitioner had a full scale IQ of 71.

15

conceded that his role in Petitioner’s case was “relatively minor”

16

and that he did not perform a competency examination or any

17

neuropsychological testing.

18

Ex. 165, App. 44,

He also opined that, based on his testing,
However, Dr. Fricke

Id.

On September 11, 1987, the superior court held an in camera

19

hearing.

20

refused to consent to counsel obtaining his medical records.

21

that hearing, Petitioner’s counsel informed the judge that he had

22

consulted with Drs. Missett and McKinzey, who opined that they

23

needed the medical records as they were important for a

24

psychiatric defense.

25

Petitioner had refused to waive time for his trial and
At

Dr. Missett was retained by Petitioner’s trial counsel in

26

1987.

27

reports and some of Petitioner’s medical and family history

He interviewed Petitioner twice in 1987 and reviewed police

28
33

1

records.

2

regard to Petitioner’s competency.

3

Dr. Missett never testified as to his opinion with

However, in his 1994 declaration, Dr. Missett stated that

4

based on his 1987 interview he believed Petitioner to be

5

“intellectually limited.”

6

“Based upon the little information which I possessed at the time

7

and my observations of [Petitioner] during our interview, I

8

determined that [Petitioner] may have been suffering from organic

9

brain damage and epilepsy.”

Ex. 165, App. 42, Missett Dec. at 2.

Id.

Dr. Missett conceded that he

United States District Court
For the Northern District of California

10

informed Petitioner’s trial counsel that “until more testing was

11

done and more history was obtained, it was impossible to be

12

certain whether or not [Petitioner] was competent to stand trial.”

13

Id. at 3.

14

of Petitioner’s trial in 1987 of the information he later learned

15

in 1994, he was “certain that with the new information" he would

16

have found that Petitioner "was incompetent to stand trial and so

17

informed” trial counsel.

18

Nonetheless, he declared that had he known at the time

Id. at 7.

Dr. Missett’s declaration is unpersuasive.

Even though his

19

two interviews with Petitioner led him to conclude in 1987 that

20

Petitioner was “intellectually limited,” he did not then opine

21

that Petitioner was unable to consult and cooperate with his

22

lawyer or that he was unable understand the charges against him or

23

the trial proceedings.

24

counsel should have raised an incompetency plea is a legal

25

conclusion, not a medical opinion.2

Dr. Missett's current opinion that defense

26
27
28

2

Whether defense counsel was ineffective based on failure to
request an incompetency hearing is addressed in claim three.
34

1

Petitioner's trial counsel also retained Dr. McKinzey to
render an opinion on Petitioner’s competency to stand trial in

3

1987.

4

his discussions with trial counsel and a review of Petitioner’s

5

police records, he “suspected severe physical abuse in childhood”

6

and requested more documentation.

7

at 2.

8

in camera hearing in Superior Court, he told the judge that

9

Petitioner “was a high risk for neurological impairment which

10
United States District Court
For the Northern District of California

2

would make it difficult for him to cooperate with his defense

11

counsel.”

12

Petitioner.

13

subsequently interviewed Petitioner, but it is not clear when that

14

interview occurred.

15

that he believed in 1987 that Petitioner “was able to understand

16

the charges only marginally"; “had no idea of the roles of court

17

personnel"; had impaired “ability to distinguish between defense

18

and prosecution experts and investigators”; and “would be unable

19

to effectively challenge witnesses, assist his counsel in

20

challenging them, or point out or counteract inaccuracies in

21

witnesses’ statements.”

22

In his 1994 declaration, Dr. McKinzey stated that, based on

Ex. 164, App. 10, McKinzey Dec.

He went on to state that, on September 11, 1987, during the

Id.

However, at that time, he had not yet interviewed

In his 1994 declaration, he states that he

In his 1994 declaration, Dr. McKinzey stated

McKinzey Dec. at 4-5.

However, Petitioner’s behavior and apparent understanding of

23

the proceedings as captured in the record of the 1987 pre-trial

24

hearings, and his eventual cooperation with his counsel, casts

25

doubt on Dr. McKinzey’s conclusion.

26

While defense counsel’s opinion of a defendant’s competency

27

is not enough to settle the question of competency, see Hernandez

28

v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991), the Ninth Circuit has
35

1

identified defense counsel’s opinion of a defendant’s competency

2

to be “especially relevant.”

3

608 (9th Cir. 2002) (citing Medina v. California, 505 U.S. 437,

4

450 (1992) (“defense counsel will often have the best-informed

5

view of the defendant’s ability to participate in his defense”)

6

and Hernandez, 930 F.2d at 718 (the fact that defense counsel

7

considered defendant competent to stand trial was significant

8

evidence that defendant was competent)).

9

counsel’s initial competency-related concerns were based on

Williams v. Woodford, 384 F.3d 567,

Petitioner’s trial

United States District Court
For the Northern District of California

10

Petitioner’s refusal to waive time and his failure to communicate

11

rationally about that issue.

12

not competent to proceed to the preliminary hearing.

13

preliminary hearing judge was not swayed by that argument, and

14

continued the proceeding to give Petitioner more time to gain a

15

thorough understanding of what he was being asked to do and why.

16

In a later proceeding, defense counsel stated that Petitioner was

17

cooperating.

18

whether Petitioner’s competency was still an issue that needed to

19

be addressed, to which counsel answered no.

20

not indicate at any other time that counsel raised any concerns

21

about Petitioner’s competency.

22

Counsel believed that Petitioner was
The

The preliminary hearing judge then asked counsel

The transcript does

Furthermore, the transcript shows that the superior court

23

judge was able to communicate rationally with Petitioner.

24

judge specifically stated that he believed Petitioner understood

25

everything that was being said to him.

26

Trial Hearing Transcript, Ex. 13 at 25:7-8.

27

stated that he wanted to waive time because his lawyers had not

28
36

The

September 11, 1987 PrePetitioner eventually

1

had enough time to investigate properly.

2

Trial Hearing Transcript, Ex. 14 at 4:25-26.

September 15, 1987 Pre-

3

On balance, the Court concludes that the California Supreme

4

Court’s decision that Petitioner was not incompetent at the time

5

of his trial was not a result “contrary to, or involv[ing] an

6

unreasonable application of, clearly established Federal law,” and

7

was not “based on an unreasonable determination of the facts in

8

light of the evidence presented” to it.

9

Even accepting all of Petitioner’s facts as true, he has not

28 U.S.C. § 2254(d).

United States District Court
For the Northern District of California

10

presented “clear and convincing” evidence to rebut the presumption

11

that he was competent to stand trial.

12

claim for relief on the ground that Petitioner was tried while

13

incompetent is DENIED.

14

Accordingly, the petition’s

However, because the Court finds that Petitioner has

15

demonstrated that other reasonable jurists might find this Court’s

16

assessment of the constitutional claim “debatable or wrong,” Slack

17

v. McDaniel, 529 U.S. 473, 484 (2000), Petitioner is granted a

18

certificate of appealability (COA) pursuant to 28 U.S.C. § 2253(c)

19

as to this claim.

20

Cir. 1999) (holding that appellate review is limited to the issues

21

for which COAs are granted).

22
23
24

B.

See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th

Claim two: trial court failed to hold a competency
hearing

Petitioner argues that the trial court was unreasonable for

25

failing to hold a competency hearing before his trial in light of

26

substantial evidence that gave rise to a reasonable doubt about

27

Petitioner’s mental competency.

28

evidentiary hearing with regard to this claim.

He does not seek discovery or an

37

1

Due process requires a trial court to conduct a competency

2

hearing sua sponte if the court has a good faith doubt concerning

3

the defendant’s competence.

4

(1966).

5

if “‘a reasonable judge, situated as was the trial court judge

6

whose failure to conduct an evidentiary hearing is being reviewed,

7

should have experienced doubt with respect to competency to stand

8

trial.’”

9

(quoting deKaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976)

Pate v. Robinson, 383 U.S. 375, 385

A good faith doubt about a defendant’s competence arises

Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010)

United States District Court
For the Northern District of California

10

(en banc)).

11

conduct a competence hearing, sua sponte if necessary, whenever

12

there is substantial evidence of mental incompetence . . .

13

Substantial evidence for these purposes is evidence that raises a

14

reasonable doubt on the issue.”

15

1132, 1163 (1992).

16

whether a hearing is necessary, including "evidence of a

17

defendant’s irrational behavior, his demeanor at trial, and any

18

prior medical opinion on competence to stand trial," but "even one

19

of these factors standing alone may, in some circumstances, be

20

sufficient."

21

In California, the “trial court is required to

People v. Howard, 1 Cal. 4th

Several factors are relevant to determining

Drope v. Missouri, 420 U.S. 162, 180 (1975).

On direct appeal, the California Supreme Court discussed in

22

detail the trial court’s determination that it did not need to

23

hold a competency hearing.

24

The high court concluded that the evidence did not raise a

25

"substantial doubt" about Petitioner’s competency, which would

26

have triggered an obligation to hold a competency hearing.

27

1112.

28

was based largely on his trial counsel’s concerns about

See Rodrigues, 8 Cal. 4th at 1107-12.

Id. at

It reasoned that any doubt as to Petitioner’s competency

38

1

Petitioner’s unwillingness to waive time, sign medical release

2

forms and speak with the defense’s doctors, but that “defense

3

counsel did not further pursue the competency issue once defendant

4

became cooperative.”

5

doctors’ findings as presented to the trial judge before

6

Petitioner’s trial as tentative, inconclusive and without

7

particularity.

8

counsel’s opinion that Petitioner might have been incompetent was

9

not enough, by itself, to trigger an obligation to hold a

Id.

It also characterized the defense’s

Id. at 1110.

Finally, it reasoned that defense

United States District Court
For the Northern District of California

10

competency hearing sua sponte.

11

Supreme Court concluded that it could not “say as a matter of law

12

that the evidence raised a substantial doubt as to [Petitioner’s]

13

mental competence.

14

duty to order a competency hearing.”

15

Id. at 1112.

Thus, the California

Accordingly, the lower courts were under no
Id.

Even if a defendant is in fact incompetent, a trial court

16

does not err in failing to hold a competency hearing if the record

17

evidence does not call for it.

18

852, 860-61 (9th Cir. 2011).

19

to those in Stanley.

20

not unreasonable for the trial court to conclude there was not

21

enough evidence before it to raise a doubt about the defendant’s

22

competence such that it should have held a hearing sua sponte.

23

one hand, the defendant made some questionable choices in strategy

24

and acted oddly but, on the other hand, defense counsel

25

specifically informed the trial court several times that they had

26

no doubt about the defendant’s competency to assist them.

27

addition, the defendant was coherent in his testimony and

28

colloquies with the court, the trial judge who interacted with him

See Stanley v. Cullen, 633 F.3d

The facts in this case are analogous

There, the Ninth Circuit found that it was

39

On

In

during the guilt phase of his trial indicated his demeanor in

2

courtroom did not raise a doubt about his competency, and the

3

trial court had very little clinical or psychiatric evidence

4

regarding the defendant’s mental health history.

5

not unreasonable for the California Supreme Court to conclude that

6

the trial judge in Petitioner’s case did not err in failing to

7

hold a competency hearing sua sponte.

8

conclusion, the California Supreme Court considered the

9

transcripts of the pre-trial hearings, including Dr. McKinzey’s

10
United States District Court
For the Northern District of California

1

preliminary conclusion that he believed that Petitioner may have

11

had a neurological impairment.

12

counsel’s decision not to pursue the competency issue once

13

Petitioner became cooperative.

14

Likewise, it was

In coming to this

It also considered defense

As discussed above, the California Supreme Court denied this

15

claim on the merits.

16

trial court was not obliged to hold a competency hearing sua

17

sponte.

18

decision was “contrary to, or involved an unreasonable application

19

of, clearly established Federal law” or that it “resulted in a

20

decision that was based on an unreasonable determination of the

21

facts in light of the evidence presented” to it.

22

§ 2254(d).

23

ground that the trial court was required, but failed, to hold a

24

competency hearing at the time of Petitioner’s trial is DENIED.

25
26

C.

The record supports its conclusion that the

Thus, Petitioner has not shown that the state court’s

28 U.S.C.

Accordingly, the petition’s claim for relief on the

Claim three: trial counsel was ineffective for failing
to seek a competency hearing

27

Petitioner argues that trial counsel was deficient for

28

failing to investigate and present evidence that he was mentally
40

1

incompetent and for failing to request a competency hearing.

2

does not seek discovery, but he does seek an evidentiary hearing

3

with regard to this claim.

4

He

In order to prevail on a Sixth Amendment claim of

5

ineffectiveness of trial counsel, Petitioner must establish two

6

things.

7

deficient, i.e., that it fell below an “objective standard of

8

reasonableness” under prevailing professional norms.

9

v. Washington, 466 U.S. 668, 687-88 (1984).

First, he must show that counsel’s performance was

Strickland

Second, he must

United States District Court
For the Northern District of California

10

establish that he was prejudiced by counsel’s deficient

11

performance, i.e., that “there is a reasonable probability that,

12

but for counsel’s unprofessional errors, the result of the

13

proceeding would have been different.”

14

probability is a "probability sufficient to undermine confidence

15

in the outcome."

16

Id. at 694.

A reasonable

Id.

"Judicial scrutiny of counsel's performance must be highly

17

deferential," and "a court must indulge a strong presumption that

18

counsel’s conduct falls within the wide range of reasonable

19

professional assistance."

20

not indulge ‘post hoc rationalization’ for counsel’s

21

decisionmaking that contradicts the available evidence of

22

counsel’s actions, . . . neither may they insist counsel confirm

23

every aspect of the strategic basis for his or her actions.

24

is a ‘strong presumption’ that counsel’s attention to certain

25

issues to the exclusion of others reflects trial tactics rather

26

than ‘sheer neglect.’”

27

omitted).

28

evidentiary proof that trial counsel’s performance was deficient.

See id. at 689.

“Although courts may

There

Harrington, 562 U.S. at 109 (citations

Petitioner has the burden of showing through

41

1

See Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir. 1990); see also

2

Rios v. Rocha, 299 F.3d 796, 813 n.23 (9th Cir. 2002) (rejecting

3

two ineffective assistance of counsel claims based on petitioner’s

4

failure to produce evidence of prejudice).

5

a federal court considering a habeas ineffective assistance claim

6

to address the prejudice prong of the Strickland test if the

7

petitioner cannot establish incompetence under the first prong.

8

See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).

It is unnecessary for

Generally, unless a petitioner alleges an ineffective

10
United States District Court
For the Northern District of California

9

assistance of counsel claim of such magnitude that prejudice is

11

presumed under United States v. Cronic, 466 U.S. 648, 659 n.26

12

(1984), he must point to specific errors of counsel.

Id.; Young

13

v. Runnels, 435 F.3d 1038, 1042-43 (9th Cir. 2006).

A difference

14

of opinion as to trial tactics does not constitute denial of

15

effective assistance.

16

375 (9th Cir. 1981).

17

ineffective assistance simply because in retrospect better tactics

18

are known to have been available.

19

1228, 1241 (9th Cir. 1984).

20

defense counsel to pursue every nonfrivolous claim or defense,

21

regardless of its merit, viability or realistic chance of success.

22

Knowles v. Mirzayance, 556 U.S. 111, 125, 127 (2009).

23

See United States v. Mayo, 646 F.2d 369,
Further, tactical decisions are not

See Bashor v. Risley, 730 F.2d

The Supreme Court has never required

A petitioner must also show that trial counsel’s errors "were

24

so serious as to deprive the defendant of a fair trial, a trial

25

whose result is reliable."

26

need not determine whether counsel’s performance was deficient

27

before examining the prejudice suffered by Petitioner as the

Strickland, 466 U.S. at 687.

28
42

A court

1

result of the alleged deficiencies.

2

Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995).

See id. at 697; Williams v.

3

Furthermore, under AEDPA, the state court’s determination of

4

an ineffective assistance of counsel claim is afforded additional

5

deference:

6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13

The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is
different from asking whether defense counsel’s performance
fell below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this
Court were adjudicating a Strickland claim on direct review
of a criminal conviction in a United States district court.
Under AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” . . . A state court
must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
standard itself.

14
15

Harrington, 562 U.S. at 101 (emphasis in original).
1.

16
17

Evidentiary hearing

Petitioner seeks an evidentiary hearing where trial counsel

18

can be questioned as to his reasons for failing to request a

19

competency hearing.

20

discussed below, this claim fails on its merits.

21

Petitioner’s facts are accepted as true, there is no need for an

22

evidentiary hearing.

23

Petitioner’s request for an evidentiary hearing on this claim is

24

DENIED.

25
26

2.

See 28 U.S.C. § 2254(e)(2).

However, as
Thus, even if

See Sully, 725 F.3d at 1075.

Accordingly,

Merits

Petitioner claims that counsel “failed to press for

27

suspension of criminal proceedings and institution of competence

28

proceedings, despite their knowledge that Petitioner lacked a
43

1

rational understanding of the proceedings and an ability to assist

2

counsel rationally.”

3

Petitioner relies on the same evidence he submitted to support

4

claims one and two.

5

failure to move for a competency hearing when "there are

6

sufficient indicia of incompetence to give objectively reasonable

7

counsel reason to doubt the defendant's competency, and there is a

8

reasonable probability that the defendant would have been found

9

incompetent to stand trial had the issue been raised and fully

Amended Petition (hereafter Am. Pet.) at 26.

Ineffective assistance of counsel exists for

United States District Court
For the Northern District of California

10

considered."

11

266 F.3d 257, 283 (3d Cir. 2001).

12

Stanley, 633 F.3d at 862 (quoting Jermyn v. Horn,

As discussed above with respect to claim one, even if the

13

Court were to accept all of Petitioner’s facts as true, he has not

14

presented clear and convincing evidence of his incompetence to

15

stand trial.

16

deficiently in failing to request a hearing, Petitioner was not

17

prejudiced by that decision.

18

that if trial counsel had requested a competency hearing, and one

19

had been held, “the result of the proceeding would have been

20

different.”

Thus, even if his trial counsel performed

There is no “reasonable probability”

Strickland, 466 U.S. at 694.

21

Accordingly, the record supports the state court’s conclusion

22

that Petitioner’s trial counsel was not ineffective for failure to

23

request a competency hearing.

24

state court’s decision was “contrary to, or involved an

25

unreasonable application of, clearly established Federal law” or

26

that it “resulted in a decision that was based on an unreasonable

27

determination of the facts in light of the evidence presented” to

28

it.

28 U.S.C. § 2254(d).

Petitioner has not shown that the

Accordingly, the petition’s claim for
44

1

relief on the ground that trial counsel was ineffective for

2

failing to request a competency hearing is DENIED.

3

However, the Court GRANTS a COA on this claim.

4

D.

5

Petitioner alleges two instances of juror misconduct, both of

Claim four: juror misconduct

6

which he claims are evidence of juror bias.

7

one juror was untruthful in her responses to the juror

8

questionnaire and that her omission evidenced bias towards those

9

involved in drug violence.

First, he argues that

Second, he claims that another juror

United States District Court
For the Northern District of California

10

slept during the guilt phase of the trial and refused to

11

deliberate, and may have made up her mind before the end of the

12

guilt phase, depriving him of his constitutional right to a trial

13

by twelve impartial jurors.

14

an evidentiary hearing for this claim.

15

Petitioner seeks both discovery and

“The Sixth Amendment guarantees criminal defendants a verdict

16

by impartial, indifferent jurors.

17

single juror” would violate a defendant’s right to a fair trial.

18

Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998).

19

The bias or prejudice of even a

These claims are procedurally barred as untimely.3

Even if

20

they were not procedurally barred, they are without merit, as

21

discussed below.

22

bar applies; Petitioner has not demonstrated prejudice, see Frady,

For this reason, no exception to the procedural

23
24
25
26
27
28

3

Although the California Supreme Court initially denied this
claim on the merits, Petitioner's second habeas petition's
untimeliness renders this claim procedurally barred. See Harris
v. Reed, 489 U.S. 255, 263 (1989) (stating that a procedural bar
comes from "the last state court rendering a judgment in the
case").
45

1

456 U.S. at 170, and his new evidence does not demonstrate

2

miscarriage of justice, see McQuiggin, 133 S. Ct. at 1933.

3

1.

4

Facts regarding Juror Langston

On her voir dire questionnaire, Juror Langston answered no to

5

several questions with regard to her and her family’s experiences

6

with crime.

7

she or anyone close to her had ever been a victim of a crime, that

8

anyone in her family had ever been accused of a crime, and that

9

she knew anyone who abused drugs or had a drinking problem.

See Ex. 166, App. 69.

Specifically, she denied that

When

United States District Court
For the Northern District of California

10

asked about “Brother’s and sister’s occupation,” she omitted that

11

she had brothers.

12

“the most important causes of crimes,” and that “the crime problem

13

has increased in recent years” because of “drugs.”

14

She also stated that she believed “drugs” were

In a 1998 declaration, however, Juror Langston admitted that,

15

as of the time of Petitioner’s trial, she was “familiar with how

16

people acted under the influence of drugs because a number of

17

[her] brothers were drug users.”

18

that she was “close” to her brothers because she “helped raise

19

them.”

20

admitted that one of her brothers “who was involved with drugs was

21

killed on a street corner in [her] community” in 1977, id., a

22

street corner near where this murder was committed.

23

in close communication with that brother a week before and two

24

days before his death.

25

drugs or money.

26

victim of a burglary in 1964.

27

misstatements constitute evidence of bias.

28

//

Id.

Ex. 186 at Ex. 78.

Two of her brothers had been in prison.

She stated

She also

She had been

She believed his death had to do with

Lastly, she revealed that she had been the direct
Petitioner argues that her

46

1

2.

Discovery regarding Juror Langston

2

Petitioner asks for a “(1) subpoena of the prosecutorial

3

files for information on Juror Langston and her brothers; and

4

(2) subpoenas of the Menlo Park Police Department, Palo Alto and

5

East Palo Alto Police Departments, and the Santa Clara Sheriff, of

6

information on Langston’s three brothers.”

7

also asks to depose Juror Langston about the reason she answered

8

the questionnaire dishonestly and “the closeness of the

9

relationship to her brothers.”

United States District Court
For the Northern District of California

10

Traverse at 55.

He

Id.

This Court has already denied Petitioner's first two

11

requests.

12

subpoenas of this information; rather he vaguely declared that the

13

information gleaned from the records would be “relevant” to his

14

claims.

15

from this defect.

16

Juror Langston’s brothers were involved in drug crimes and had

17

spent time in prison, Petitioner’s claim would still fail.

18

Petitioner does not state what additional essential information is

19

in the records he seeks.

20

requests with respect to this claim are DENIED.

21

Petitioner had failed to provide good cause for

His current requests for subpoenas continue to suffer
As discussed below, even accepting as true that

Accordingly, Petitioner’s subpoena

Petitioner’s request for a deposition of Juror Langston is

22

also denied.4

23

discovery in state court; if he did not, his failure demonstrates

24

a lack of due diligence.

25

Juror Langston the reasons for her omissions at the time he

Petitioner does not state that he pursued this

He also does not state that he asked

26
27
28

4

Apparently it is also moot; counsel has informed the Court
that Juror Langston has passed away.
47

1

obtained her declaration as to the incorrect answers.

2

not, he does not state why he did not do so.

3

not state what she said in response.

4

was twenty-seven years ago, and he has known that Juror Langston’s

5

answers were incorrect for the past seventeen years.

6

explain why he has not obtained this information.

7

not established that he was diligent in pursuing the factual

8

predicate for this claim.

9

depose Juror Langston is DENIED.

United States District Court
For the Northern District of California

10
11

3.

If he did

If he did, he does

Lastly, Petitioner’s trial

He does not

Petitioner has

Accordingly, Petitioner’s request to
See Williams, 529 U.S. at 437.

Evidentiary hearing regarding Juror Langston

Petitioner's request for an evidentiary hearing is moot

12

because Juror Langston is dead.

13

establish that he sought a hearing in state court.

14

2254(e)(2).

15

hearing on this claim is DENIED.

16
17

4.

Furthermore, Petitioner does not
See 28 U.S.C.

Accordingly, Petitioner’s request for an evidentiary

Merits regarding Juror Langston

Petitioner argues that Juror Langston’s dishonesty during

18

voir dire “precluded [him] from exploring her potential bias

19

stemming from these experiences and from developing a potential

20

challenge for cause.”

21
22
23
24
25
26
27
28

Am. Pet. at 30.

The Ninth Circuit explained the importance of voir dire as
follows:
One important mechanism for ensuring impartiality is voir
dire, which enables the parties to probe potential jurors
prejudice. For voir dire to function, jurors must answer
questions truthfully. Nevertheless, we must be tolerant,
jurors may forget incidents long buried in their minds,
misunderstand a question or bend the truth a bit to avoid
embarrassment. The Supreme Court has held that an honest
mistaken answer to a voir dire question rarely amounts to
constitutional violation; even an intentionally dishonest
answer is not fatal, so long as the falsehood does not
bespeak a lack of impartiality.
48

for
as
yet
a

1

Dyer, 151 F.3d at 973.

2

The Ninth Circuit recognizes three forms of juror bias:

3

actual bias, implied bias and "McDonough-style bias."

4

States v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013) (citing

5

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554-56

6

(1984)).

7

bias claim because the Supreme Court has never explicitly adopted

8

or rejected the doctrine of implied bias.

9

F.3d 1233, 1248-49 (9th Cir. 2016).5

United States District Court
For the Northern District of California

10

United

A habeas petitioner cannot obtain relief on an implied

Hedlund v. Ryan, 815

Actual bias "stems from a pre-set disposition not to decide

11

an issue impartially."

12

McDonough-style bias, "a party must first demonstrate that a juror

13

failed to answer honestly a material question on voir dire, and

14

then further show that a correct response would have provided a

15

valid basis for a challenge for cause."

16

556.

17

those reasons that affect a juror's impartiality can truly be said

18

to affect the fairness of a trial."

19

Lamarque, 357 F.3d 943, 949 (9th Cir. 2004) (using this standard

20

under AEDPA).

Olsen, 704 F.3d at 1189.

To prove

McDonough, 464 U.S. at

"The motives for concealing information may vary, but only

Id.; see also Sanders v.

21
22
23
24
25
26
27
28

5

The Ninth Circuit's conclusion in Hedlund appears difficult
to reconcile with its pre-AEDPA en banc opinion on implied bias,
Dyer. 151 F.3d at 985 n.24 ("Courts disagree . . . about when the
doctrine applies, not whether it exists."). See Conaway v. Polk,
453 F.3d 567, 586-88 (4th Cir. 2006) (concluding in post-AEDPA
opinion that the "doctrine of implied bias remains," while heavily
quoting Dyer); Brooks v. Dretke, 444 F.3d 328, 329-32 & n.5 (5th
Cir. 2006) (concluding that implied bias is clearly established
federal law under AEDPA, citing Dyer).
49

1

Respondent concedes that Juror Langston’s 1988 voir dire

2

questionnaire and her 1998 declaration were contradictory.

3

argues, however, that because both were executed under penalty of

4

perjury, “[f]aced with the conflicting evidence, the California

5

Supreme Court reasonably could conclude that the juror

6

questionnaire, filled out before the trial and verdict, and before

7

any doubts about the verdict, aided by defense investigators, may

8

have set in, was the more credible.”

9

He

Answer at 35.

This Court finds Respondent's argument implausible and

United States District Court
For the Northern District of California

10

assumes that Juror Langston did not fabricate the stories about

11

her brother after the trial.

12

about her brothers.

13

and Juror Langston’s brothers, to whom she admitted she was close,

14

were drug abusers and had spent time in prison for drug-related

15

crimes.

16

drugs or money, and the scene of this crime was very close to

17

where her brother was killed.

18

circumstances of her brothers’ criminal histories and the facts

19

surrounding one brother’s death, but also the fact that she even

20

had brothers.

21

Nor is it plausible that she forgot

This case involved drug dealing and murder,

She believed that one of her brothers was murdered over

She omitted not only the

However, Petitioner still fails to meet his burden to

22

establish that Juror Langston was actually biased or biased under

23

McDonough.

24

pursue the facts that might prove his claim.

25

developed facts demonstrating that Juror Langston was pre-disposed

26

not to decide his case impartially or that her motives for

27

concealing information about her brothers affected her

As discussed above, Petitioner did not diligently

28
50

Petitioner has not

1

impartiality.

2

Juror Langston was actually biased is DENIED.

3

The petition’s claim for relief on the ground that

However, the Court GRANTS a COA on this claim.

4

5.

5

Facts regarding Juror Bourdelais

Petitioner claims that Juror Bourdelais’s “actions of

6

sleeping through the guilt phase of the trial and refusing to

7

deliberate deprived [him] of his constitutional right to a trial

8

by twelve impartial jurors.”

9

Am. Pet. at 34.

During the penalty phase of the trial, but before penalty

United States District Court
For the Northern District of California

10

deliberations had begun, Juror Leddy asked to speak to the judge

11

with regard to Juror Bourdelais.

12

overheard Juror Bourdelais complain that she did not want to

13

listen to more witnesses during the penalty phase because she had

14

already made up her mind.

15

hearing at which Juror Bourdelais admitted that, after the guilty

16

verdict and prior to the penalty phase deliberations, she had

17

already made up her mind about the penalty.

18

23.

19

during the guilt phase of the trial, and seemed inattentive.

20

questioned by the trial judge, Juror Bourdelais stated that she

21

“heard everything that’s gone on.”

22

Juror Bourdelais’s admission that she had prematurely made up her

23

mind as to Petitioner’s penalty, the trial judge excused her from

24

the penalty phase deliberations.

Juror Leddy stated that he

Ex. 133 at RT 13372.

The court held a

Ex. 134 at RT 13415-

The judge noted that it appeared that Juror Bourdelais slept

Ex. 134 at RT 13416.

When

Based on

Ex. 134 at RT 13422-23.

25

At the same hearing, Petitioner’s lawyers suggested that

26

perhaps Juror Bourdelais had also made up her mind before the

27

guilt phase deliberations.

28

from the jury during the guilt phase deliberations stating that an

This suggestion was based on a note

51

1

unnamed juror had already made up his or her mind and refused to

2

deliberate.

3

trial judge investigated the note at the time it was given to him.

4

Nevertheless, at the hearing regarding Juror Bourdelais, the trial

5

judge explicitly refused to inquire further about that note.

Ex. 134 at RT 13418-19.

It does not appear that the

6

Petitioner concedes that Juror Bourdelais was properly

7

excused from the penalty phase deliberations when the trial court

8

found that she had violated her oath to stay impartial during the

9

penalty phase.

However, he argues, her sleeping during the guilt

United States District Court
For the Northern District of California

10

phase, as well as his speculation that she was the juror who

11

refused to participate in the guilt phase deliberations, may be

12

evidence that she was biased during the guilt phase as well.

13
14

6.

Discovery regarding Juror Bourdelais

Petitioner seeks to depose Juror Bourdelais and Juror Leddy

15

to determine whether Juror Bourdelais made comments regarding her

16

bias and, if so, when.

17

established good cause for his request, nor has he established

18

that he was unable to obtain this evidence despite due diligence.

19

Accordingly, his request to depose Jurors Bourdelais and Leddy is

20

DENIED.

21
22

As discussed below, Petitioner has not

See Williams, 529 U.S. at 437.
7.

Evidentiary hearing regarding Juror Bourdelais

As discussed below, the claim fails on its merits.

23

Accordingly, there is no need for an evidentiary hearing.

24

Petitioner’s request for an evidentiary hearing on this claim is

25

DENIED.

26
27
28

Thus,

See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2).
8.

Merits regarding Juror Bourdelais

Juror Bourdelais's sleeping does not merit granting habeas
relief.

“Inattentiveness can be a form of juror misconduct and
52

1

may constitute cause to discharge a juror.

2

inattentiveness is not, per se, a violation of a criminal

3

defendant’s right to due process, a fair trial, or an impartial

4

jury.”

5

(citing Tanner v. United States, 483 U.S. 107, 126-27 (1987)).

6

The Ninth Circuit has explained that “the presence of all awake

7

jurors throughout an entire trial is not an absolute prerequisite

8

to a criminal trial’s ability to ‘reliably serve its function as a

9

vehicle for determination of guilt or innocence.’”

However

Morales v. Sisto, 2012 WL 3791395, at *22 (N.D. Cal.)

United States

United States District Court
For the Northern District of California

10

v. Olano, 62 F.3d 1180, 1189 (9th Cir. 1995) (citing United States

11

v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987)).

12

“the presence of a sleeping juror during trial does not, per se,

13

deprive a defendant of a fair trial.”

14

Similarly,

Id.

Similarly, Petitioner's assertion that Juror Bourdelais was

15

the juror who refused to deliberate during the guilt phase is

16

unsupported.

17

juror bias will generally conduct a hearing involving all

18

interested parties to explore the issue of juror bias and provide

19

the defendant an opportunity to prove actual bias.

20

F.3d at 1246; see also Smith v. Phillips, 455 U.S. 209, 215 (1982)

21

(“This Court has long held that the remedy for allegations of

22

juror partiality is a hearing [by the trial court] in which the

23

defendant has the opportunity to prove actual bias”).

24

the fact-finding process is objective and reasonably explores the

25

issues presented, the state trial judge’s findings based on that

26

investigation are entitled to a presumption of correctness.

27

Hedlund, 815 F.3d at 1246-48 (state supreme court’s decision that

28

trial court did not abuse its discretion in refusing to dismiss a

A trial court confronted with a colorable claim of

53

Hedlund, 815

So long as

See

1

juror who discovered she was distantly related to victim was not

2

contrary to, nor an unreasonable application of, clearly

3

established Supreme Court precedent, where trial court held

4

hearing and was reasonably satisfied that no actual bias was

5

present).

6

Here, Juror Bourdelais's responses during the hearing do not

7

indicate that she had also made up her mind prior to the beginning

8

of the guilt phase deliberations; she spoke about how she needed

9

to hear everything because the other jurors’ ideas may make her

United States District Court
For the Northern District of California

10
11

change her own ideas.

See Ex. 134 at RT 13417-18.

Thus, Petitioner has not shown that the state court’s

12

decision was “contrary to, or involved an unreasonable application

13

of, clearly established Federal law” or that it “resulted in a

14

decision that was based on an unreasonable determination of the

15

facts in light of the evidence presented” to it.

16

§ 2254(d).

17

ground that Juror Bourdelais committed misconduct by

18

inattentiveness or was biased during the guilt phase is DENIED.

28 U.S.C.

Accordingly, the petition’s claim for relief on the

19

E.

20

Petitioner asserts three claims of bias in the jury

Claim five: bias in jury selection

21

selection: (1) that his jury was drawn from an unfair cross-

22

section of the community, violating his Sixth Amendment right to a

23

fair and impartial jury; (2) that the systematic exclusion of

24

Hispanics from the jury pool violated his Fifth Amendment right to

25

equal protection; and (3) that the prosecutor discriminated in his

26

use of peremptory challenges, in violation of Batson v. Kentucky,

27

476 U.S. 79 (1986).

28

hearing on this claim.

Petitioner seeks discovery and an evidentiary

54

1

These claims are procedurally barred as untimely.

Even if

2

they were not procedurally barred, they are without merit, as

3

discussed below.

4

bar applies; Petitioner has not demonstrated prejudice, see Frady,

5

456 U.S. at 170, and his new evidence does not demonstrate

6

miscarriage of justice, see McQuiggin, 133 S. Ct. at 1933.

7

1.

8
9

For this reason, no exception to the procedural

Systematic underrepresentation of Hispanics at all
stages of jury selection

A criminal defendant has a constitutional right stemming from

United States District Court
For the Northern District of California

10

the Sixth Amendment to a fair and impartial jury pool composed of

11

a cross-section of the community.

12

U.S. 474, 480 (1990); Taylor v. Louisiana, 419 U.S. 522, 538

13

(1975).

14

jurisdiction.

15

943 (9th Cir. 2005), overruled on other grounds by United States

16

v. Hernandez-Estrada, 749 F.3d 1154, 1164 (9th Cir. 2014) (en

17

banc).

18

wheel,” meaning “the list of prospective jurors who have been

19

randomly pulled from the juror source list, have been mailed juror

20

questionnaires, have returned those questionnaires, and have been

21

deemed qualified based on their response to those questionnaires.”

22

Hernandez-Estrada, 749 F.3d at 1161.

23

from the venire, the group of potential jurors called into the

24

courtroom to be questioned for voir dire for the trial.

25

cross-section requirement applies to the jury pool and the venire

26

and is not applicable to the jury that is seated for a defendant’s

27

trial.

28

Nevius v. Sumner, 852 F.2d 463, 466 (9th Cir. 1988).

See Holland v. Illinois, 493

The community is the jury-eligible population in the
See United States v. Rodriguez–Lara, 421 F.3d 932,

The “jury pool” refers to those in the “qualified jury

The jury pool is different

The fair

See Lockhart v. McCree, 476 U.S. 162, 173-74 (1986);

55

1

In Duren v. Missouri, the Supreme Court held that to

2

establish a prima facie violation of the fair-cross-section

3

requirement, a defendant must show “(1) that the group alleged to

4

be excluded is a ‘distinctive’ group in the community; (2) that

5

the representation of this group in venires from which juries are

6

selected is not fair and reasonable in relation to the number of

7

such persons in the community; and (3) that this

8

underrepresentation is due to systematic exclusion of the group in

9

the jury-selection process.”

439 U.S. 357, 364 (1979).

The first

United States District Court
For the Northern District of California

10

showing is easily made in most cases, while the second and third

11

are more likely to generate controversy.

12

U.S. 314, 319 (2010).

13

Berghuis v. Smith, 559

The Supreme Court has explained that, as to the second

14

showing, “neither Duren nor any other decision of [the Supreme]

15

Court specifies the method or test courts must use to measure the

16

representation of distinctive groups in jury pools.”

17

The Ninth Circuit has regularly employed the absolute disparity

18

test, which measures “the difference between the percentage of the

19

distinctive group in the community and the percentage of that

20

group in the jury pool."

21

Although no bright-line rule exists as to what level of absolute

22

disparity violates the Constitution, the Ninth Circuit has

Id. at 329.

Rodriguez-Lara, 421 F.3d at 943.6

23
24
25
26
27
28

6

Rodriguez-Lara required the absolute disparity test.
However, in Hernandez-Estrada, the Ninth Circuit, sitting en banc,
overruled that requirement, explaining that "the appropriate test
or tests to employ will largely depend on the particular
circumstances of each case." 749 F.3d at 1164. The court held
that "courts may use one or more of a variety of statistical
methods to respond to the evidence presented." Id.
56

1

declined to find underrepresentation of a distinctive group where

2

the absolute disparity was 7.7 percent or lower.

3

Estrada, 749 F.3d at 1164; see also United States v. Suttiswad,

4

696 F.2d 645, 649 (9th Cir. 1982); Thomas v. Borg, 159 F.3d 1147,

5

1151 (9th Cir. 1998) (collecting cases).

6

percent bar is not Supreme Court law, it is inapplicable on

7

habeas.

8

Hernandez-

Further, because the 7.7

As to the third prong regarding "systematic exclusion," there
is no clearly established Supreme Court precedent supporting that

10
United States District Court
For the Northern District of California

9

a petitioner "can make out a prima facie case merely by pointing

11

to a host of factors that, individually or in combination, might

12

contribute to a group's underrepresentation."

13

at 332 (emphasis in original).

14

is not unreasonable for a state court to conclude that Duren

15

requires a petitioner to show that the underrepresentation was due

16

to systematic exclusion."

17
18

a.

Berghuis, 559 U.S.

Further, the Court explained, it

Id. at 333.

Discovery

Petitioner seeks discovery on this allegation.

He requests

19

access to the records for the entire qualified jury pool for San

20

Mateo County at the time of his trial.

21

established good cause for his request because, as discussed

22

below, even if the facts were fully developed, he would not be

23

entitled to relief.

24

was unable to obtain this evidence despite due diligence.

25

his discovery request is DENIED.

26

b.

27
28

Petitioner has not

Furthermore, he has not established that he
Thus,

Evidentiary hearing

As discussed below, this claim fails on its merits.
Accordingly, there is no need for an evidentiary hearing.
57

Thus,

1

Petitioner’s request for an evidentiary hearing on this claim is

2

DENIED.

See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2).

3
4

c.

Merits

In his Traverse, Petitioner relies on the absolute disparity

5

test to contend that Hispanics were systematically

6

underrepresented in the jury pool for San Mateo County at the time

7

of his trial.

8

Hispanics were 15.4 percent of the population, but he estimates

9

that Hispanics comprised only eight percent of the jury pool.

He alleges that, according to the 1990 Census,

United States District Court
For the Northern District of California

10

Thus, Petitioner claims that a conservative estimate of the

11

absolute disparity for the Hispanic population at the time of his

12

trial was 7.4 percent.

13

employs no strict percentage test.

14

apply here, this disparity does not pass muster given that, even

15

when it required the use of the absolute disparity test, the Ninth

16

Circuit declined to find underrepresentation of the distinctive

17

group when the absolute disparity was 7.7 percent or lower.

As explained above, the Supreme Court
Even if Ninth Circuit law did

18

Furthermore, while Petitioner claims that the 7.4 percent

19

absolute disparity estimate is likely conservative, it is also

20

possible that the figure overestimates the disparity.

21

did not obtain access to the names and racial and ethnic

22

identities of the entire jury pool from the time of his trial,

23

Petitioner extrapolates data from the juror questionnaires

24

(Exhibits 174-183) for the prospective jurors in his trial to

25

derive his 7.4 percent estimate of the proportion of Hispanics in

26

the entire jury pool.

27

commissioner originally called 362 jurors from the jury pool to

28

comprise the venire for Petitioner’s trial.

Because he

Petitioner alleges that the jury

58

He claims that fifty-

1

nine of those jurors had Spanish surnames but he speculates that

2

only thirty of those jurors were “actually” Hispanic due to the

3

large number of Filipinos in San Mateo County at the time who had

4

Spanish surnames.

5

only eight percent of the venire for his trial and concludes that

6

they comprised eight percent of the entire jury pool.7

7

Petitioner fails to account for the likelihood that there were

8

Hispanic jurors in the jury pool who did not have Spanish

9

surnames.

United States District Court
For the Northern District of California

10

Thus, he speculates that Hispanics comprised

However,

Even if Petitioner could satisfy the second prong of the

11

Duren test, that the representation of Hispanics in the jury pool

12

was not fair in relation to the number of Hispanics in San Mateo

13

County at the time of his trial, he provides no evidence (other

14

than references to a California Superior Court transcript in

15

another trial) that any underrepresentation of Hispanics was due

16

to “systematic exclusion of the group in the jury-selection

17

process.”

18

U.S. at 364).

19

transportation hardship excuses, county “quota” systems, failure

20

to follow up with prospective jurors who did not return the

21

questionnaire and the over-representation of non-returns in cities

22

with high Hispanic populations contributed to the systematic

Hernandez-Estrada, 749 F.3d at 1165 (citing Duren, 439
Petitioner speculates that the granting of

23
24
25
26
27
28

7

Petitioner also alleges that, after hardship
disqualifications, 184 jurors were in his venire and answered
questionnaires specific to his trial. Of the 184, Petitioner
alleges that thirty-three had Spanish surnames, but that sixteen
of those jurors self-identified as non-Hispanic. Petitioner does
not state how many of the jurors without Spanish surnames
identified as Hispanic.
59

1

exclusion of Hispanics.

2

these practices or any precedential legal authority that any of

3

these practices constitute sufficient evidence of systematic

4

exclusion.

5

Petitioner has not cited any evidence of

See Berghuis, 559 U.S. at 332.

Accordingly, the record supports the state court’s denial of

6

Petitioner's claim that Hispanics were systematically excluded

7

from the jury pool.

8

court’s decision was “contrary to, or involved an unreasonable

9

application of, clearly established Federal law” or that it

Thus, Petitioner has not shown that the state

United States District Court
For the Northern District of California

10

“resulted in a decision that was based on an unreasonable

11

determination of the facts in light of the evidence presented” to

12

it.

13

ground that the jury pool did not represent a fair cross-section

14

of the community is DENIED.

28 U.S.C. § 2254(d).

15

2.

16

The petition’s claim for relief on the

Violation of equal protection

Petitioner also claims an equal protection violation due to

17

the continued use of the same discriminatory jury selection

18

mechanism he hypothesized to support his fair cross-section claim.

19
20
21
22
23
24

To establish a prima facie case of such a claim, Petitioner
must
(1) establish that the group, of which the [petitioner] is a
member, is one that is a recognizable, distinct class,
singled out for different treatment under the laws, as
written or as applied; (2) prove the degree of
underrepresentation by comparing the proportion of the group
in the total population to the proportion called to serve as
grand jurors, over a significant period of time; and
(3) discriminatory intent.

25

Hernandez-Estrada, 749 F.3d at 1166 (quoting United States v.

26

Esquivel, 88 F.3d 722, 725 (9th Cir. 1996)) (internal quotation

27

marks omitted); see also Castaneda v. Partida, 430 U.S. 482, 494

28

(1977).

The "essential question of underrepresentation is the
60

1

same in both equal protection and fair cross-section challenges."

2

Hernandez-Estrada, 749 F.3d at 1166-67.

3

Hispanics are “a recognizable, distinct class, singled out

4

for different treatment under the laws, as written or as applied.”

5

Hernandez-Estrada, 749 F.3d at 1166; see also Hernandez v. Texas,

6

347 U.S. 475 (1954) (concluding that "persons of Mexican descent"

7

constitute such a class).

8

Supreme Court has not decided what degree of absolute disparity is

9

constitutional.

However, as discussed above, the

See Wheelock v. Kernan, 2012 WL 359750, at *27

United States District Court
For the Northern District of California

10

(N.D. Cal.), aff'd, 571 Fed. App'x. 559 (9th Cir. 2014) (applying

11

this reasoning on habeas to fair cross-section claim and equal

12

protection claim).

13

of underrepresentation.

14

Further, Petitioner has not proven the degree
Thus, his equal protection claim fails.

Furthermore, Petitioner must show discriminatory intent.

See

15

Castaneda, 430 U.S. at 494; Hernandez-Estrada, 749 F.3d at 1166;

16

Thomas, 159 F.3d at 1150.

17

“substantial underrepresentation has occurred,” one can infer

18

discriminatory intent.

19

allege facts to support his allegation of discriminatory intent.

20

See Esquivel, 88 F.3d at 728 (rejecting the argument that “any

21

substantial disparity over a period of time between a group’s

22

percentage on the jury and its percentage in the eligible

23

population is prima facie evidence of discrimination, regardless

24

of the source of jurors” (emphasis omitted)).

25

Further, because there is no clearly established Supreme Court law

26

on how to evaluate discriminatory intent, it was not contrary to,

27

or an unreasonable application of, this body of law not to infer

28

discriminatory intent.

Petitioner claims that, because

Traverse at 62.

61

He is incorrect.

He must

He does not do so.

1

Thus, Petitioner has not shown that the state court’s

2

decision was “contrary to, or involved an unreasonable application

3

of, clearly established Federal law” or that it “resulted in a

4

decision that was based on an unreasonable determination of the

5

facts in light of the evidence presented” to it.

6

§ 2254(d).

7

ground that the jury selection method violated Petitioner’s right

8

to equal protection is DENIED.

9

United States District Court
For the Northern District of California

10

28 U.S.C.

Accordingly, the petition’s claim for relief on the

3.

Discriminatory peremptory challenges

Petitioner alleges that the prosecutor used his peremptory

11

challenges systematically to exclude African-American and Hispanic

12

jurors in violation of Batson, 476 U.S. 79.

13

may not raise a Batson claim here because he failed to object at

14

trial to the prosecution’s use of peremptory challenges.

15

Haney v. Adams, 641 F.3d 1168, 1169, 1173 (9th Cir. 2011).

16

However, Petitioner

See

In Haney, a petitioner alleged that the prosecutor used

17

peremptory challenges to remove all African-American potential

18

jurors.

19

On state habeas review, the state court rejected Haney’s Batson

20

claim for relief for that reason.

21

district court also denied Haney’s Batson claim, in part because

22

the claim was not raised at trial.

23

district court’s decision.

24

never allowed a Batson challenge to be raised on appeal or on

25

collateral attack, if no objection was made during jury

26

selection.”

27

court’s decision could not be “contrary to” clearly established

28

federal law.

Haney’s trial counsel had not objected to the challenges.

Id. at 1171.

On federal habeas review, the

The Ninth Circuit upheld the

It ruled that “the Supreme Court has

Thus, it reasoned that the state

Id.
62

1

Furthermore, the Ninth Circuit stated that Batson itself

2

“presupposes a timely objection.”

3

Court articulated a three-step process for evaluating potentially

4

discriminatory use of peremptory challenges.

5

must make out a prima facie case that the prosecutor exercised

6

peremptory challenges on the basis of race “by showing that the

7

totality of the relevant facts gives rise to an inference of

8

discriminatory purpose.”

9

the requisite showing has been made, the burden shifts to the

Id.

In Batson, the Supreme

First, the defendant

Batson, 476 U.S. at 93-94.

Second, if

United States District Court
For the Northern District of California

10

prosecutor to articulate a race-neutral explanation for striking

11

the jurors in question.

12

1190, 1195 (9th Cir. 2000).

13

determine whether the defendant has carried his burden of proving

14

purposeful discrimination.

15

at 1195.

16

prosecutor’s proffered reasons and credibility under ‘the totality

17

of the relevant facts,’ using all the available tools including

18

its own observations and the assistance of counsel.”

19

Hall, 391 F.3d 1039, 1047 (9th Cir. 2004) (quoting Lewis v. Lewis,

20

321 F.3d 824, 831 (9th Cir. 2003)).

21

requirements, the Ninth Circuit reasoned that the determination of

22

whether a peremptory strike was discriminatory depends heavily on

23

the trial judge’s own observations.

24

"be difficult, if not impossible, to evaluate for the first time

25

in post-conviction proceedings when no record is preserved,” which

26

would require the prosecution to reconstruct, years later, the

27

reasons for the strikes.

28

Haney, the state court’s decision was not “‘an unreasonable

Id. at 97; Wade v. Terhune, 202 F.3d
Finally, the trial court must

Batson, 476 U.S. at 98; Wade, 202 F.3d

To fulfill its duty, the “court must evaluate the

In light of these

These determinations would

Haney, 641 F.3d at 1172.

63

Mitleider v.

Thus, in

1

application’ of the law clearly established in Batson” because

2

Batson presupposes an objection made at trial.

3

true here.

Id.

The same is

4

Petitioner has not shown that the state court’s decision was

5

“contrary to, or involved an unreasonable application of, clearly

6

established Federal law” or that it “resulted in a decision that

7

was based on an unreasonable determination of the facts in light

8

of the evidence presented” to it.

9

Accordingly, the petition’s claim for relief on the ground of

United States District Court
For the Northern District of California

10

28 U.S.C. § 2254(d).

unconstitutional Batson violations is DENIED.

11

F.

Claim nine: ineffective assistance of trial counsel
during guilt phase

12
13

Petitioner raises eleven instances of ineffective assistance

14

of trial counsel during the guilt phase of his trial.

15

both discovery and an evidentiary hearing on this claim.

16

raises other ineffective assistance of counsel subclaims that

17

relate to other claims, which do not overlap with his claim nine

18

arguments.

19

in which it was raised.

20

He requests
He also

The Court addresses each argument within the context

As noted above, to prevail on a Sixth Amendment claim of

21

ineffectiveness of trial counsel, Petitioner must establish that

22

counsel’s performance was deficient and that he was prejudiced by

23

it.

24

See Strickland, 466 U.S. at 687-88.
This claim is procedurally barred as untimely.

Even if it

25

were not procedurally barred, it is without merit, as discussed

26

below.

27

applies; Petitioner has not demonstrated prejudice, see Frady, 456

For this reason, no exception to the procedural bar

28
64

1

U.S. at 170, and his new evidence does not demonstrate miscarriage

2

of justice, see McQuiggin, 133 S. Ct. at 1933.

3
4

1.

Discovery

Petitioner asks to depose trial counsel as to the reasons for

5

several decisions made in the case.

6

Petitioner has not established good cause for his request, nor has

7

he established that he was unable to obtain this evidence despite

8

due diligence.

9

request to depose his trial counsel is DENIED.

United States District Court
For the Northern District of California

10
11

2.

As discussed below,

See Williams, 529 U.S. at 437.

Accordingly, his

Evidentiary hearing

As discussed below, this claim fails on its merits.

12

Accordingly, there is no need for an evidentiary hearing.

13

Petitioner’s request for an evidentiary hearing on this claim is

14

DENIED.

15

Thus,

See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2).
3.

Merits

16

a.

17

Trial counsel failed to investigate and
present overwhelming evidence that Petitioner
was incompetent to stand trial

18

The substance of this claim is the same as that presented in

19

claim three.

20

accepting all of Petitioner’s facts as true, he has not presented

21

clear and convincing evidence of his incompetence to stand trial.

22

Thus, even if his trial counsel’s performance was deficient in

23

failing to request a hearing, Petitioner was not prejudiced by

24

that decision.

25

relief for this allegation of ineffective assistance of trial

26

counsel is DENIED.

27

As discussed with respect to that claim, even

Accordingly, the petition’s request for habeas

However, the Court GRANTS a COA on this claim.

28
65

b.

1
2

Trial counsel failed to litigate the state’s
destruction of evidence and seek appropriate
sanctions

The substance of this claim is the same as that presented in
3
claim fourteen.

As discussed below with respect to that claim,

4
even accepting all of Petitioner’s facts as true, his claim of
5
failure to preserve evidence of Mr. Zavala’s cash and his own car
6
is without merit.

Thus, even if trial counsel’s performance was

7
deficient in failing to litigate this issue, Petitioner was not
8
prejudiced by that decision.

Accordingly, the petition’s request

9
for habeas relief for this allegation of ineffective assistance of
10
United States District Court
For the Northern District of California

trial counsel is DENIED.
11
c.

12
13

Trial counsel failed to investigate
Petitioner’s mental state at the time of the
crime

14

Petitioner relies on the same allegations and evidence of

15

mental impairment to argue both that he had an impaired mental

16

state at the time of the crime and that he was incompetent to

17

stand trial.

18

Petitioner has not established that he was legally insane at

19

the time of the crime, which requires a finding by preponderance

20

of the evidence that the defendant “was unable either to

21

understand the nature and quality of the criminal act, or to

22

distinguish right from wrong when the act was committed.”

23

People v. Elmore, 59 Cal. 4th 121, 140 (2014) (citing Cal. Penal

24

Code § 25(b)).

25

deficient in failing to investigate this issue and present an

26

insanity defense, Petitioner was not prejudiced by that decision

27

because he would not have been able to carry his burden of proof.

See

Thus, even if trial counsel’s performance was

28
66

1

Accordingly, the petition’s request for habeas relief for this

2

allegation of ineffective assistance of trial counsel is DENIED.

3

d.

4
5
6

Trial counsel failed to request appropriate
jury instructions on the relevance of drug and
alcohol intoxication to the mental state
element of the offenses

Petitioner asserts that trial counsel was prejudicially

7

ineffective when he failed to request jury instructions on the

8

relevance of Petitioner’s drug and alcohol use on his mental

9

culpability, despite ample evidence in the record on which to base

United States District Court
For the Northern District of California

10

such a request.

11

jury instructions, the Ninth Circuit distinguishes those failures

12

"based on 'a misunderstanding of the law'" from strategic

13

decisions "'to for[]go one defense in favor of another.'"

14

v. Herzog, 798 F.3d 840, 852 (9th Cir. 2015) (quoting United

15

States v. Span, 75 F.3d 1383, 1387 (9th Cir. 1996)).

In applying Strickland to failures to request

Crace

16

Here, there was no basis to request such an instruction.

17

Petitioner did not testify in his own defense, so there is no

18

direct evidence from him as to his drug use that day.

19

Ontiveros testified that she and co-perpetrator Mr. Garcia

20

injected heroin together, but made no mention of having shared it

21

with Petitioner.

22

regarding his notations in Petitioner’s medical records prior to

23

surgery the following morning, he indicated that at no time while

24

Petitioner was at Highland Hospital did he appear to be under the

25

influence of any substance.

26

counsel's decision was likely strategic because he chose to pursue

27

a wrongful identification defense over a mental state defense.

Ex. 93 at RT 9843.

When Dr. Jamieson testified

Ex. 104 at RT 10980.

28
67

Ms.

Further,

1

Accordingly, Petitioner has failed to meet his burden of

2

showing that the state court’s decision that counsel did not

3

render ineffective assistance was “contrary to, or involved an

4

unreasonable application of, clearly established Federal law” or

5

that it “resulted in a decision that was based on an unreasonable

6

determination of the facts in light of the evidence presented” to

7

it.

8

relief for this allegation of ineffective assistance of trial

9

counsel is DENIED.

28 U.S.C. § 2254(d).

United States District Court
For the Northern District of California

10

e.

11

The petition’s request for habeas

Trial counsel failed to present evidence that
would undermine Mr. Zavala’s testimony

The substance of this claim is the same as that presented in
12
claims fourteen and twenty.

As discussed below with respect to

13
those claims, even accepting all of Petitioner’s facts as true,
14
his claims of failure to present evidence of Mr. Zavala’s alleged
15
bias and of his missing cash are without merit.

Thus, even if

16
trial counsel’s performance was deficient in failing to litigate
17
these issues, Petitioner was not prejudiced by that decision.
18
Accordingly, the petition’s request for habeas relief for this
19
allegation of ineffective assistance of trial counsel is DENIED.
20
f.

21

Trial counsel failed to impeach adequately Ms.
Vargas’s identification

22
23
24
25
26
27
28

Petitioner argues that trial counsel rendered ineffective
assistance by failing to introduce into evidence numerous reports
in counsel’s possession that contained inconsistent statements
regarding Ms. Vargas’s ability to see the perpetrators and the
race of one of the individuals, whom she later identified as
Petitioner.

These reports were submitted as Exhibits 166 and 168,
68

1

Appendices 68, 71, 89, 90, 91, 92, and 111.

2

Supreme Court denied the claim on the merits.

3

This claim is without merit.

The California

Appendix 90 is the bulletin

4

issued by the Santa Clara County Police Department and Appendix 91

5

is the police dispatch record for that evening.

6

documents include reports by police officers who questioned Ms.

7

Vargas, about which Petitioner’s counsel cross-examined her, and

8

her own direct statement, again the subject of counsel’s cross-

9

examination.

United States District Court
For the Northern District of California

10
11

The other

The information contained in each document is

repetitive and cumulative.
Appendix 111, the statement of Detective Ronald Williams, was

12

prepared after the night of the events.

13

and Ms. Vargas were cross-examined regarding that statement.

Both Detective Williams

14

Petitioner has not shown that the state court’s decision was

15

“contrary to, or involved an unreasonable application of, clearly

16

established Federal law” or that it “resulted in a decision that

17

was based on an unreasonable determination of the facts in light

18

of the evidence presented” to it.

19

Accordingly, the petition’s request for habeas relief for this

20

allegation of ineffective assistance of trial counsel is DENIED.

21
22

g.

28 U.S.C. § 2254(d).

Trial counsel failed to investigate and
present evidence to impeach Ms. Ontiveros’s
testimony

23
24

Much of the substance of this claim relies on the same

25

evidence as that presented to support claim fifteen and the

26

arguments raised in claim twenty.

27

to those claims, Petitioner has failed to show that the evidence

28

is credible or admissible.
69

As discussed below with respect

1

Moreover, Petitioner has failed to show that he has suffered

2

prejudice as a result of counsel’s failure to procure and present

3

the evidence he includes with his habeas petition.

4

examination, Petitioner’s trial attorney got Ms. Ontiveros to

5

admit to fifteen instances of lying to the police during the

6

course of the investigation.

7

was prepared to question her about more lies to the police, but

8

the trial court sustained an objection to continued questioning

9

because the point had been made.

United States District Court
For the Northern District of California

10

On cross-

Ex. 92-93 at RT 9780-874.

Counsel

Ex. 93 at RT 9876-77.

Petitioner’s trial counsel also challenged Ms. Ontiveros’s

11

assertion that she had decided to tell the truth to the police

12

because of her religious dedication.

13

she admitted that she stopped going to church when she turned

14

eighteen and that she did not attend services while using drugs.

15

Ex. 93 at RT 9835-36.

16

came to question her regarding the murder, they came with twenty

17

SWAT team officers and surrounded the facility where she was

18

staying as a part of probation.

19

had a lengthy conversation with her and then arrested her for

20

murder.

21

truth after being transported to jail.

22

month after she told the police her version of events, she entered

23

into a plea bargain dismissing all claims except conspiracy to

24

commit robbery, to which she entered a nolo contendere plea, and

25

received a four-year sentence that she served in a Mother-Infant

26

program and county jail.

During cross-examination,

She also admitted that, when the police

Ex. 92 at RT 9788.

Ex. 92 at RT 9786.

The police

She contacted the police to tell the
Ex. 93 at RT 9888.

One

Ex. 92 at RT 9789-90.

27

Ms. Ontiveros acknowledged that, in her initial statement,

28

she swore to God on her children that she was telling the truth
70

1

because she was trying to protect herself, Ex. 93 at RT 9878, yet

2

she continuously lied to police.

3

removed from the Mother-Infant program to which she had been

4

sentenced initially and that her child was placed in Ms.

5

Ontiveros’s mother’s care.

She admitted that she was

Ex. 92 at RT 9791.

6

Additionally, she admitted that she was in love with co-

7

perpetrator Mr. Garcia at the time of the crime and remained so as

8

of the time of Petitioner’s trial.

9

9829.

United States District Court
For the Northern District of California

10
11

Ex. 92 at RT 9719; Ex. 93 at

She explained her lies to the police as an attempt to

protect Mr. Garcia.

Ex. 93 at RT 9874.

During trial, she discussed her extensive heroin and

12

injectable cocaine use, her exchange of sex for drugs and money,

13

and her “ripping off” her own heroin customers.

14

9736, 9812; Ex. 93 at RT 9823.

15

should have been explored with this witness was covered by trial

16

counsel’s cross-examination.

17

introduce in the habeas proceeding would be cumulative or

18

extraneous.

19

Ex. 92 at RT

Much of what Petitioner argues

Some of what Petitioner seeks to

Petitioner argues that counsel failed to discover and present

20

additional evidence pertaining to Ms. Ontiveros, namely (1) Ms.

21

Ontiveros regularly robbed drug dealers at knife point, and

22

(2) when she was arrested for robbery prior to being arrested for

23

the instant crimes, she was admitted to jail with a black-handled

24

knife, the same kind of knife used in the murder for which

25

Petitioner was convicted.

26

not substantiate his claim regarding Ms. Ontiveros’s regular

27

practice of robbing drug dealers with Mr. Garcia.

28

admitted planning the robbery and discussing it with Mr. Garcia

The affidavit Petitioner submits does

71

Ms. Ontiveros

1

and Petitioner.

2

robbery, the jury could conclude this was not her first such

3

offense.

4

Ontiveros said it would be and had his blood on it.

5

has not provided any evidence to show that Ms. Ontiveros’s knife

6

was similar enough to the murder weapon that, had it been

7

introduced, there would have been “a reasonable probability that

8

. . . the result of the proceeding would have been different.”

9

Strickland, 466 U.S. at 694.

United States District Court
For the Northern District of California

10

Between that and her admitted convictions for

As for the knife, Petitioner’s knife was found where Ms.
Petitioner

Accordingly, the petition’s request for habeas relief for

11

this allegation of ineffective assistance of trial counsel is

12

DENIED.
h.

13
14
15

Trial counsel failed to investigate crucial
evidence to allow him to cross examine
Ms. Ontiveros effectively

Petitioner argues that counsel failed to investigate

16

information with regard to Ms. Ontiveros’s background and role in

17

the crime.

18

to impeach Ms. Ontiveros’s testimony.

19

He claims that this information could have been used

The information Petitioner claims counsel did not investigate

20

is the same information he claims in claim twenty that the

21

prosecution failed to disclose.

22

to that claim, even accepting all of Petitioner’s facts as true,

23

his claim that trial counsel failed to present evidence to impeach

24

Ms. Ontiveros is without merit.

25

performance was deficient in failing to discover and present this

26

evidence, Petitioner was not prejudiced by that decision.

27

Accordingly, the petition’s request for habeas relief for this

28

allegation of ineffective assistance of trial counsel is DENIED.

As discussed below with respect

Thus, even if trial counsel’s

72

1

i.

2
3

Trial counsel failed to investigate and
present evidence that Mr. Garcia both planned
the crime and killed Mr. Barragan

In support of claim fifteen below, Petitioner’s actual

4

innocence claim, Petitioner submitted a declaration from co-

5

perpetrator Mr. Garcia.

6

the declaration is not credible.

7

credited, it still places Petitioner at the scene and “involved”

8

in the events.

9

he had been called to testify at Petitioner’s trial Mr. Garcia

As discussed with respect to that claim,
Even if the declaration could be

Moreover, the declaration does not state that if

United States District Court
For the Northern District of California

10

would have testified to the events as stated in his declaration.

11

Such a scenario seems unlikely, as Mr. Garcia was also charged

12

with murder and anything he said in defense of Petitioner at

13

Petitioner’s trial could have been introduced against him at his

14

own trial.

15

The only testimony that Petitioner murdered Mr. Barragan came

16

from the decedent’s brother, Mr. Zavala.

17

forward any additional witnesses who could testify knowingly that

18

co-perpetrator Mr. Garcia committed the murder.

19

Petitioner has not put

Petitioner has failed to show either deficient performance or

20

prejudice and, therefore, has failed to show that the state

21

court’s denial of this claim was unreasonable.

22

§ 2254(d).

23

for this allegation of ineffective assistance of trial counsel is

24

DENIED.

25
26
27
28

See 28 U.S.C.

Accordingly, the petition’s request for habeas relief

j.

Trial counsel failed to investigate and
present evidence to impeach Ms. Sturns’
testimony

Ms. Sturns testified that, around the time of the crime, she
saw two Hispanic men in dark clothes coming out of the backyard of
73

1

her apartment building, which was located next to the victims’

2

apartment building.

3

to present evidence of Ms. Sturns’ criminal history, which could

4

have been used to impeach her testimony.

5

Petitioner alleges that trial counsel failed

This claim is weak: even if the jury had been made aware of

6

Ms. Sturns’ criminal history, there is no strong inference that

7

the jury would have found her testimony to be less truthful.

8

Thus, even if trial counsel’s performance was deficient in failing

9

to use Ms. Sturns’ criminal history to attempt to impeach her

United States District Court
For the Northern District of California

10

testimony, Petitioner was not prejudiced by that decision.

11

Accordingly, the petition’s request for habeas relief for this

12

allegation of ineffective assistance of trial counsel is DENIED.

13

k.

14
15

Trial counsel failed to contest meaningfully
the prosecution’s forensic presentation

The substance of this claim is the same as that presented in

16

claim twenty-one.

17

even accepting all of Petitioner’s facts as true, his claim that

18

his counsel failed to present effectively evidence to contest the

19

criminalist’s findings is without merit.

20

counsel’s performance was deficient in failing litigate this

21

issue, Petitioner was not prejudiced by that decision.

22

Accordingly, the petition’s request for habeas relief for this

23

allegation of ineffective assistance of trial counsel is DENIED.

24
25

l.

As discussed below with respect to that claim,

Thus, even if trial

Trial counsel failed to present evidence of
Petitioner’s brother’s mental disabilities

Petitioner’s brother Raymond testified on behalf of the
26
prosecution that Petitioner explained his arm wound after the
27
crime as an accident when a car transmission fell on his arm.
28
74

1

Petitioner alleges that trial counsel failed to present evidence

2

of Raymond’s mental deficiencies and criminal history to impeach

3

his testimony as unreliable.

4

This claim is weak.

Even if the jury had been made aware of

Raymond’s intellectual limitations and criminal history, there is

6

no strong inference that the jury would have found his testimony

7

to be less truthful.

8

was deficient in failing to use Raymond’s intellectual

9

deficiencies and criminal history to attempt to impeach his

10
United States District Court
For the Northern District of California

5

testimony, Petitioner was not prejudiced by that decision.

11

Accordingly, the petition’s request for habeas relief for this

12

allegation of ineffective assistance of trial counsel is DENIED.

13

4.

Thus, even if trial counsel’s performance

Conclusion

14

In sum, the record supports the conclusion that trial

15

counsel’s performance, even if deficient in any respect, did not

16

prejudice Petitioner.

17

that his trial counsel was ineffective under Strickland for these

18

alleged errors, he cannot establish that the state court was

19

unreasonable in its application of Strickland.

20

allegations cannot support the petition’s claim of ineffective

21

assistance of trial counsel.

22

state court’s decision was “contrary to, or involved an

23

unreasonable application of, clearly established Federal law” or

24

that it “was based on an unreasonable determination of the facts

25

in light of the evidence presented” to it.

26

The petition’s claim for relief on the ground of ineffective

27

assistance of trial counsel is DENIED.

Given that Petitioner fails to establish

Thus, these

Petitioner has not shown that the

28
75

28 U.S.C. § 2254(d).

1

G.

2

Potential witness Laverne Johnson was represented in a

3

capital murder trial by counsel from the same law firm that

4

employed the attorney who represented Petitioner at his trial.

5

Petitioner argues that his trial attorney failed to call Mr.

6

Johnson to impeach Ms. Ontiveros, and that this amounted to

7

deficient representation due to the conflict of interest.

8

Petitioner requests discovery and an evidentiary hearing on this

9

claim.

Claim ten: trial counsel’s conflict of interest

This claim is procedurally barred as untimely.

Even if it

United States District Court
For the Northern District of California

10

were not procedurally barred, it is without merit, as discussed

11

below.

12

applies; Petitioner has not demonstrated prejudice, see Frady, 456

13

U.S. at 170, and his new evidence does not demonstrate miscarriage

14

of justice, see McQuiggin, 133 S. Ct. at 1933.

15

For this reason, no exception to the procedural bar

Under the Sixth Amendment, a criminal defendant is entitled

16

to conflict-free representation.

17

1195 (9th Cir. 1994) (citing Wood v. Georgia, 450 U.S. 261, 271

18

(1981)).

19

advocating on behalf of his or her client without fear or favor,

20

counsel is not playing the role necessary to ensure that the trial

21

is fair.

22

Garcia v. Bunnell, 33 F.3d 1193,

If a conflict of interest prevents counsel from

See Strickland, 466 U.S. at 685-86.

The Sixth Amendment right to conflict-free counsel is

23

violated only if the conflict “adversely affected” trial counsel’s

24

performance.

25

2006) (explaining what petitioner “must show” in the habeas

26

context).

27

interest mean[s] precisely a conflict that affected counsel’s

28

performance -- as opposed to a mere theoretical division of

Alberni v. McDaniel, 458 F.3d 860, 872 (9th Cir.

As the Supreme Court explained, “an actual conflict of

76

1

loyalties.”

2

and internal quotation marks omitted).

3
4

Mickens v. Taylor, 535 U.S. 162, 171 (2002) (emphasis

1.

Discovery

As explained below, Petitioner alleges that Ms. Ontiveros

5

discussed potentially impeaching evidence in letters to Mr.

6

Johnson while they were both in jail.

7

of all the letters exchanged between Mr. Johnson and Ms.

8

Ontiveros.

9

proffers nothing but his own speculation that the letters exist

He has not shown good cause for such discovery.

10
United States District Court
For the Northern District of California

Petitioner seeks discovery

with the content he describes.

11

He

DENIED.

12
13

2.

Thus, his discovery request is

Evidentiary hearing

As discussed below, the claim fails on its merits.

14

Accordingly, there is no need for an evidentiary hearing.

15

Petitioner’s request for an evidentiary hearing on this claim is

16

DENIED.

17
18

Thus,

See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2).
3.

Merits

Mr. Johnson was housed in the San Mateo County Jail sometime

19

in late 1987, around the same time Ms. Ontiveros was housed there.

20

Petitioner claims that Mr. Johnson and Ms. Ontiveros developed a

21

relationship while in jail, through letters.

22

those letters, “Ontiveros admitted setting up the robbery to

23

Johnson and placed blame for the homicide on Juan Garcia,

24

petitioner’s alleged co-perpetrator.

25

petitioner’s role.”

26

these letters, she expressed her fear of Mr. Garcia and disclosed

27

that she had been in a sexual relationship with an Alameda County

28

Deputy Sheriff.

Am. Pet. at 133.

He argues that, in

She made no reference to
He also claims that, in

Petitioner provides only a part of a letter from
77

1

Ms. Ontiveros to Mr. Johnson, but in it she writes nothing about

2

Petitioner’s case or her own case, nor does she refer to Mr.

3

Garcia or the Deputy Sheriff.

4

believe that Mr. Johnson, even if called to testify, would have

5

testified as Petitioner speculates.

6

Accordingly, there is no reason to

Petitioner claims his counsel could not call Mr. Johnson as a

7

witness in his case "because he could not advance petitioner’s

8

interest to Johnson’s detriment.

9

would have had adverse penal consequences to Johnson.”

Calling Johnson as a witness
Id. at

United States District Court
For the Northern District of California

10

134.

11

have faced Mr. Johnson for having a relationship in violation of

12

the jail’s rules.

13

actual conflict affected counsel’s decision-making.

14

points out, Mr. Johnson was sentenced to death a month before

15

Petitioner’s trial began.

16

not to call Mr. Johnson because the prosecution could have easily

17

impeached him, rendering his testimony, at best, insignificant.

18

Furthermore, had the relationship been discovered, the penalty to

19

Mr. Johnson would have been de minimis given his death sentence.

20

Petitioner appears to be referring to the penalty that might

However, Petitioner fails to establish that any
As Respondent

Counsel could have reasonably decided

Accordingly, the record supports the state court’s conclusion

21

that trial counsel was not ineffective due to a conflict of

22

interest.

23

decision was “contrary to, or involved an unreasonable application

24

of, clearly established Federal law” or that it “resulted in a

25

decision that was based on an unreasonable determination of the

26

facts in light of the evidence presented” to it.

Thus, Petitioner has not shown that the state court’s

27
28
78

28 U.S.C.

1

§ 2254(d).

2

ground of ineffective assistance of trial counsel due to a

3

conflict of interest is DENIED.

Accordingly, the petition’s claim for relief on the

4

H.

5

Petitioner argues that his constitutional rights were

6

violated by the admission of a videotape containing a series of

7

“‘reenactments,’ which bore not a single fact or circumstance in

8

common with the events of the night of the crime.”

9

135.

Claim eleven: admission of videotaped re-enactment

Am. Pet. at

Petitioner asserts that the tape was introduced for the

United States District Court
For the Northern District of California

10

purpose of bolstering an eyewitness identification by Maria

11

Vargas, as well as to duplicate the events she testified to

12

witnessing.

13

videotape being filmed during the day, when visibility would be

14

significantly different from that at the actual time of the crime;

15

(2) the fact that it shows a white man running down the stairs in

16

a white shirt, as opposed to a dark-skinned man in dark clothing;

17

and (3) the fact that scenes show Ms. Vargas standing either

18

outside or in an open doorway, although the door was closed during

19

the incident and her view of the perpetrators fleeing was through

20

her window.

21

evidentiary hearing on this claim.

22

Petitioner takes particular issue with: (1) the

Petitioner does not request discovery or an

The California Supreme Court rejected Petitioner's claim that

23

"the videotape's inaccuracies created a misleading impression of

24

the events witnessed by Vargas."

25

The court explained:

26
27
28

Rodrigues, 8 Cal. 4th at 1115.

The videotape had been offered as demonstrative evidence to
show the jurors the relative locations of the victims’
apartment, Vargas’s apartment, the rear stairway and the
driveway of the apartment building. In particular, the
79

1

videotape had been intended in part to show Vargas’s vantage
point as she witnessed the assailants flee the scene.

2

Id. at 1114.

3

established that one of the men she saw escaping, whom she later

4

identified as Petitioner, was a dark-skinned man in dark clothing,

5

that the viewing took place late at night, in the dark, and that

6

she viewed the escaping men through the window.

7

The court assumed that the jurors understood and accounted for the

8

discrepancies between the video and Ms. Vargas’s testimony.

9

at 1115.

United States District Court
For the Northern District of California

10

By contrast, Ms. Vargas’s subsequent testimony

Id. at 1114-15.

Id.

On habeas review, a federal court considers only whether a

11

conviction violated constitutional norms; where evidence was

12

erroneously admitted, a federal court will grant relief only if

13

that admission violated fundamental due process and the right to a

14

fair trial.

15

Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986).

16

Court “has not yet made a clear ruling that admission of

17

irrelevant or overtly prejudicial evidence constitutes a due

18

process violation sufficient to warrant issuance of the writ.”

19

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)

20

(explaining that, by contrast, the Supreme Court has made clear

21

that a court should grant habeas relief when constitutional

22

evidentiary errors have rendered the trial fundamentally unfair).

23

Admitted evidence does not violate due process if there is a

24

rational, permissible inference the jury could draw from it.

25

Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

26

Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999);
The Supreme

Here, the evidence was introduced to show the layout of Ms.

27

Vargas’s apartment.

28

showing the lighting conditions at the time she witnessed the men

It was not admitted for the purpose of

80

1

fleeing the apartment building, nor was it admitted for the

2

purpose of showing skin color or clothing color for the men

3

leaving the building the night of the murder.

4

Supreme Court noted, the distinctions between the events depicted

5

in the videotape and Ms. Vargas’s testimony as to what occurred

6

that night, including her vantage point to see it, were obvious.

7

Accordingly, the jury could reasonably infer from the videotape

8

the proper purpose of showing the layout of the apartment

9

building.

United States District Court
For the Northern District of California

10

As the California

Petitioner also argues that admission of the videotape

11

violated his rights because it was admitted in violation of the

12

California Evidence Code.

13

claim because a federal habeas court does not review questions of

14

state evidence law.

This is not a cognizable federal habeas

Henry, 197 F.3d at 1031.

15

Petitioner has not shown that the state court’s decision was

16

“contrary to, or involved an unreasonable application of, clearly

17

established Federal law” or that it “resulted in a decision that

18

was based on an unreasonable determination of the facts in light

19

of the evidence presented” to it.

20

Accordingly, the petition’s claim for relief on the ground that

21

admission of the videotape violated Petitioner’s constitutional

22

rights is DENIED.

23

I.

24
25

28 U.S.C. § 2254(d).

Claim twelve: prosecution’s use of unreliable hearsay
identification evidence

This claim is procedurally barred as untimely.

Even if it

26

were not procedurally barred, it is without merit, as discussed

27

below.

28

applies; Petitioner has not demonstrated prejudice, see Frady, 456

For this reason, no exception to the procedural bar

81

1

U.S. at 170, and his new evidence does not demonstrate miscarriage

2

of justice, see McQuiggin, 133 S. Ct. at 1933.

3

Petitioner argues that the admission of hearsay testimony
from police detective Ronald Williams violated Petitioner’s

5

constitutional rights to “confrontation and cross-examination, the

6

effective assistance of counsel, present a defense, due process, a

7

fair trial, and a reliable, accurate, non-arbitrary determination

8

in a capital case.”

9

challenges statements by Detective Williams about Ms. Vargas's

10
United States District Court
For the Northern District of California

4

identifications of Mr. Garcia as one of the individuals she saw

11

leaving the scene.

12

testimony that neither Ms. Vargas nor Mr. Zavala identified Nathan

13

Howard or Richard Lopez, although they were shown photos of these

14

allegedly alternative suspects.

15

discovery or an evidentiary hearing on this claim.

16

Supreme Court denied the claim on state law grounds.

17

found no violation of the Confrontation Clause because Ms. Vargas

18

had not been discharged at the time of Detective Williams’s

19

testimony and she was recalled for rebuttal following his

20

testimony.

21

argued on direct appeal that the admission of the prior

22

identifications of Mr. Garcia denied him due process, a fair jury

23

trial and a reliable guilt determination.

24

court noted that Petitioner waived these claims, denied them on

25

the merits and concluded that any error was harmless.

Am. Pet. at 141.

Specifically, Petitioner

He also complains of Detective Williams's

Petitioner does not request

Rodrigues, 8 Cal. 4th at 1117-19.

The California
It also

Petitioner also

Id. at 1119 n.22.

The

Id.

26

Additionally, Petitioner argues that counsel was ineffective

27

for failing to preserve the issue on appeal and failing to cross-

28
82

1

examine Ms. Vargas on her prior identifications.

2

other constitutional violations, as discussed below.

3

1.

He also alleges

Confrontation Clause violation

4

The Confrontation Clause of the Sixth Amendment provides that

5

in criminal cases the accused has the right to “be confronted with

6

the witnesses against him.”

7

goal of the Confrontation Clause is to ensure reliability of

8

evidence, but it is a procedural rather than a substantive

9

guarantee.

U.S. Const. amend. VI.

The ultimate

Crawford v. Washington, 541 U.S. 36, 61 (2004).

“It

United States District Court
For the Northern District of California

10

commands, not that evidence be reliable, but that reliability be

11

assessed in a particular manner: by testing in the crucible of

12

cross-examination.”

13

Id.

The Confrontation Clause applies to all “testimonial”

14

statements.

15

solemn declaration or affirmation made for the purpose of

16

establishing or proving some fact.”

17

marks, brackets and citation omitted).

18

applies not only to in-court testimony but also to out-of-court

19

statements introduced at trial, regardless of the admissibility of

20

the statements under state laws of evidence.

21

See id. at 50-51.

“Testimony . . . is typically a

Id. at 51 (internal quotation
The Confrontation Clause

Id. at 50-51.

Out-of-court statements constitute hearsay when offered in

22

evidence to prove the truth of the matter asserted.

23

United States, 417 U.S. 211, 219 (1974).

24

does not bar the admission of testimonial hearsay when the

25

declarant appears for cross-examination at trial.

26

U.S. at 59 n.9 (citing California v. Green, 399 U.S. 149, 162

27

(1970)).

28
83

Anderson v.

The Confrontation Clause

Crawford, 541

a.

1
2
3

Statements Regarding Ms. Vargas’s
Identifications of Co-Perpetrator Mr. Garcia
and Failure to Identify Other Suspects

Ms. Vargas testified about both a photo line-up and a

4

physical line-up.

5

photo line-up, Ms. Vargas stated that one of the photographs

6

looked like one of the suspects, but she told the police that she

7

did not think the photograph was of one of the suspects.

8

she impliedly testified that she did not select any other photos.

9

She testified that she did not tell the police everything because

United States District Court
For the Northern District of California

10
11

she was afraid.

See Ex. 91 at RT 9630-31.

When discussing the

Thus,

Ex. 91 at RT 9631.

Later, Detective Williams confirmed that Ms. Vargas did not

12

identify Nathan Howard or Richard Lopez in the photo line-up.

13

101 at RT 10695.

14

Garcia had the "same round face" and that the "hair is the same"

15

as the man she recognized, but she also said "I don't think it's

16

any one of them."

17

Ms. Vargas identified Mr. Garcia at his preliminary hearing in

18

court.

19

Ex.

He testified that she said that the photo of Mr.

Id.

Later, Detective Williams testified that

Id. at RT 10696.

Ms. Vargas was recalled to the stand by the prosecution to

20

rebut testimony given by Detective Williams when he was called as

21

a witness in the defense’s case.

22

Petitioner’s defense attorney cross-examined her regarding

23

pictures of Petitioner that she may have been shown before making

24

in-court identifications.

25

testimony, Ms. Vargas stated that she wanted to leave because her

26

kids were alone.

27

said: "for now you are."

See Ex. 106 at RT 11221-29.

Id. at RT 11123-27.

Following this

When asked if she could be excused, the court
Id. at RT 11229.

28
84

Because Ms. Vargas was

1

still available to testify, and was recalled following Detective

2

Williams’s testimony, there is no Confrontation Clause violation.

3

b.

4
5

Victim Zavala’s Failure to Identify Other
Suspects

Mr. Zavala testified on cross-examination that he recalled

6

being shown photographs, but that he was unable to identify anyone

7

from them.

8

that he did not select the photos of any other subjects.

9

Detective Williams's testimony to the same effect was cumulative.

Ex. 84 at RT 9021.

Thus, he too impliedly testified

United States District Court
For the Northern District of California

10

Like Ms. Vargas, at the conclusion of his testimony, Mr. Zavala

11

was released temporarily, but was not excused and was subject to

12

recall.

13

to testify and the testimony of Detective Williams to the effect

14

that Mr. Zavala had failed to identify any other suspects did not

15

violate the Confrontation Clause.

16
17

Ex. 85 at RT 9055.

2.

Therefore, Mr. Zavala was available

Ineffective assistance of counsel on this issue

As noted above, to succeed on an ineffective assistance of

18

counsel claim, Petitioner must show that (1) counsel’s performance

19

was deficient, and (2) Petitioner was prejudiced by counsel’s

20

deficient performance.

21

Petitioner’s defense attorney objected repeatedly during Detective

22

Williams’s testimony about the prior identifications of Mr. Garcia

23

made by Ms. Vargas during proceedings in Mr. Garcia's case.

24

101 at RT 10697-98.

25

no witness--including Ms. Vargas--ever identified photographs of

26

Richard Lopez or Nathan Howard.

Strickland, 466 U.S. at 687-88.

Ex.

Counsel also objected to the testimony that

Ex. 101 at RT 10698.

27

Petitioner argues that, to the extent counsel failed to

28

preserve the issue on appeal and failed to cross-examine Ms.
85

1

Vargas on her prior identifications, counsel rendered deficient

2

performance.

3

was recalled to the stand, trial counsel did cross-examine her

4

about her prior identifications.

5

Vargas stated that she did not identify anyone in the photographs

6

shown to her prior to the preliminary hearing or in a live line-up

7

and confirmed that she had been shown photographs at the

8

preliminary hearing.

9

failure to preserve the issue on appeal was not prejudicial, as

The record reflects, however, that when Ms. Vargas

Ex. 106 at RT 11225-27.

Ex. 106 at RT 11227.

Ms.

Further, counsel's

United States District Court
For the Northern District of California

10

the California Supreme Court addressed the merits of his fair

11

trial and due process arguments.

12

n.22.

13

Rodrigues, 8 Cal. 4th at 1119

Petitioner has not identified any other potential errors

14

counsel made with respect to this testimony.

15

at 659 n.26; Young, 435 F.3d at 1042-43.

16

ineffective assistance of counsel claim with respect to the

17

hearsay identification evidence is DENIED.

18

3.

19
20

See Cronic, 466 U.S.

Thus, Petitioner's

Other constitutional violations related to this
issue

Petitioner alleges that the admission of Detective Williams’s

21

testimony violated his rights to due process and a fair trial.

22

Additionally, Petitioner argues that, in its decision denying this

23

claim, the state court used the wrong standard for its harmless

24

error analysis.

25

admission of the evidence violated any of his constitutional

26

rights.

27
28

Petitioner, however, has failed to show that the

A federal habeas court does not review “questions of state
evidence law.”

Spivey v. Rocha, 194 F.3d 971, 977 (9th Cir.
86

1

1999).

2

evidence by the state court violated his due process rights

3

rendering the trial “fundamentally unfair.”

4

1101.

5

“very few rulings regarding the admission of evidence as a

6

violation of due process”; specifically, it has never “made a

7

clear ruling that admission of irrelevant or overtly prejudicial

8

evidence constitutes a due process violation sufficient to warrant

9

the issuance of the writ.”

Habeas relief is inappropriate unless the admission of

Holley, 568 F.3d at

As noted above for claim eleven, the Supreme Court has made

Id.; see Estelle v. McGuire, 502 U.S.

United States District Court
For the Northern District of California

10

62, 70 (1991) (declining to answer whether admitting irrelevant

11

evidence is a violation of due process where it found that the

12

admitted evidence was relevant).

13

Here, Detective Williams's challenged testimony was

14

cumulative of Ms. Vargas’s and Mr. Zavala’s testimony.

15

explained above, Ms. Vargas testified that she did not identify

16

anyone in the photographs she was shown prior to the preliminary

17

hearing or in a live line-up; this meant that she did not identify

18

Richard Lopez or Nathan Howard.

19

11227.

20

being shown photographs, but that he was unable to identify anyone

21

from them.

22

Zavala impliedly testified at Petitioner's trial that they had not

23

identified Richard Lopez or Nathan Howard; they could have been

24

cross-examined on the point by the defense.

25

court’s determination--that Detective Williams’s testimony that no

26

one identified Richard Lopez or Nathan Howard as a potential

27

suspect reflected the state of the record--was not an unreasonable

As

Ex. 91 at RT 9624; Ex. 106 at RT

Mr. Zavala testified on cross-examination that he recalled

Ex. 84 at RT 9021.

Thus, both Ms. Vargas and Mr.

28
87

Therefore, the state

1

application of federal law or an unreasonable interpretation of

2

the facts.

3

See Harrington, 562 U.S. at 100.

Thus, Petitioner has not shown that the state court’s

4

decision was “contrary to, or involved an unreasonable application

5

of, clearly established Federal law” or that it “resulted in a

6

decision that was based on an unreasonable determination of the

7

facts in light of the evidence presented” to it.

8

§ 2254(d).

9

United States District Court
For the Northern District of California

10

J.

28 U.S.C.

Accordingly, this claim is DENIED.
Claim thirteen: exclusion of impeachment evidence

This claim is procedurally barred as untimely.

Even if it

11

were not procedurally barred, it is without merit, as discussed

12

below.

13

applies; Petitioner has not demonstrated prejudice, see Frady, 456

14

U.S. at 170, and his new evidence does not demonstrate miscarriage

15

of justice, see McQuiggin, 133 S. Ct. at 1933.

16

For this reason, no exception to the procedural bar

Petitioner argues that the trial court’s exclusion of

17

evidence that Mr. Zavala had a strained relationship with his

18

brother violated Petitioner’s constitutional rights because the

19

“evidence of closeness suggested that Zavala struggled to focus on

20

Barragan’s attacker, despite his injuries, so that the jury should

21

believe his tentative identification and that the identification

22

was motivated by a desire to convict only the actual attacker.”

23

Traverse at 107.

24

emphasis on their closeness in closing argument amounted to

25

constitutional error because the prosecutor knew it was

26

contradicted by evidence he had successfully excluded, and that

27

trial counsel was ineffective for failing to object to this

Petitioner also argues that the prosecutor's

28
88

1

argument.

2

an evidentiary hearing on this claim.

3

Id. at 110.

Petitioner does not request discovery or

The California Supreme Court denied this exclusion of

4

evidence claim based on state law.

5

25.

6

waiver because trial counsel failed to object.

7

found there was no prosecutorial misconduct; counsel, therefore,

8

was not ineffective in failing to object.

9

the reasons stated below, the state court’s denial of this claim

United States District Court
For the Northern District of California

10

The court denied the prosecutorial misconduct claim based on

was not unreasonable.

11
12

Rodrigues, 8 Cal. 4th at 1124-

1.

The court also

Id. at 1125-26.

For

See Harrington, 562 U.S. at 100.

Exclusion of Evidence

“While the Constitution . . . prohibits the exclusion of

13

defense evidence under rules that serve no legitimate purpose or

14

that are disproportionate to the ends that they are asserted to

15

promote,” Holmes v. South Carolina, 547 U.S. 319, 326 (2006), the

16

Supreme Court has not directly considered whether a trial court’s

17

exercise of discretion to exclude evidence under a

18

constitutionally sound evidentiary rule violates a defendant’s

19

constitutional right to present evidence.

20

clearly established federal law directly on point, the state

21

court’s denial of Petitioner’s claim was not contrary to or an

22

unreasonable application of clearly established Supreme Court

23

precedent.

24
25

2.

Because there is no

Prosecutorial Misconduct

Petitioner argues that the prosecutor committed misconduct by

26

improperly using the elicited testimony about Mr. Zavala’s

27

closeness with his brother during his closing argument to bolster

28

Mr. Zavala’s uncertain identification.
89

The prosecutor argued

1

that, in light of his loss, Mr. Zavala had every reason to make an

2

accurate identification.

3

The California Supreme Court denied this claim as waived

4

because Petitioner’s counsel failed to object to the prosecutor’s

5

statements during trial.

6

ineffective assistance of counsel claim, the court necessarily

7

considered the merits of Petitioner’s argument and decided it

8

against him, holding that there was no evidence to indicate that

9

Mr. Zavala would have any reason to make an improper

However, when analyzing the related

United States District Court
For the Northern District of California

10

identification of Petitioner.

11

Accordingly, even if there was error, the court determined that

12

such error could not have prejudiced Petitioner.

Rodrigues, 8 Cal. 4th at 1125-26.

13

A defendant’s due process rights are violated when a

14

prosecutor’s misconduct renders a trial “fundamentally unfair.”

15

Darden v. Wainwright, 477 U.S. 168, 181 (1986); Phillips, 455 U.S.

16

at 219 (“the touchstone of due process analysis in cases of

17

alleged prosecutorial misconduct is the fairness of the trial, not

18

the culpability of the prosecutor”); see also Deck v. Jenkins, 768

19

F.3d 1015, 1023 (9th Cir. 2014) (recognizing that Darden is the

20

clearly established federal law regarding a prosecutor’s improper

21

comments for AEDPA review purposes).

22

issue is whether the prosecutor’s remarks were improper; if so,

23

the next question is whether such conduct infected the trial with

24

unfairness.

25

On habeas, a prosecutorial misconduct claim is decided “on the

26

merits, examining the entire proceedings to determine whether the

27

prosecutor’s remarks so infected the trial with unfairness as to

28

make the resulting conviction a denial of due process.”

Under Darden, the first

Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005).

90

Johnson

1

v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see Trillo v. Biter,

2

769 F.3d 995, 1001 (9th Cir. 2014) (“Our aim is not to punish

3

society for the misdeeds of the prosecutor; rather, our goal is to

4

ensure that the petitioner received a fair trial.”).

5

Petitioner cannot show that the prosecutor’s comments during

6

closing argument, viewed within the context of the trial, so

7

“infected the trial with unfairness as to make the resulting

8

conviction a denial of due process.”

9

The most probative and relevant issues regarding Mr. Zavala’s

Johnson, 63 F.3d at 929.

United States District Court
For the Northern District of California

10

identification were his ability to see clearly what was happening,

11

despite the angle of his view and the blood in his eyes; his

12

inconsistent statements; and the possibility his identification

13

had been influenced by his conversations with Ms. Vargas and the

14

police, all of which were raised extensively in cross-examination.

15

The relative closeness of Mr. Zavala and Mr. Barragan does not

16

negate the other positive identifications of Petitioner by Ms.

17

Vargas and his accomplice Ms. Ontiveros; the finding of his knife

18

where Ms. Ontiveros indicated Petitioner discarded it, with blood

19

on it consistent with Petitioner’s blood type, which would show

20

that his injury came from his own knife; Petitioner’s injury

21

consistent with that sustained by Mr. Barragan’s attacker as

22

described by Mr. Zavala; Petitioner’s attempt to secure a false

23

alibi from his brother as to the injury he sustained; Petitioner’s

24

lie to doctors as to the source of his injury; and the

25

identification of blood in the trunk of Petitioner’s car

26

consistent with Mr. Barragan’s blood type.

27

be said that any comments by the prosecutor that alluded to the

28

close relationship between the brothers in an improper way to
91

Accordingly, it cannot

1

bolster Mr. Zavala’s identification of Petitioner rendered

2

Petitioner’s trial fundamentally unfair.

3
4

3.

Ineffective Assistance of Counsel

Petitioner argues that trial counsel was ineffective for

5

failing to object to the prosecutor’s misconduct.

6

connection with other claims, Petitioner must show both that

7

counsel rendered deficient performance in failing to object and

8

that this deficient performance prejudiced him.

9

466 U.S. at 700.

As noted in

See Strickland,

Petitioner has not made such a showing.

As

United States District Court
For the Northern District of California

10

noted above, the import of any evidence regarding the nature of

11

the relationship between the brothers was marginal at best in

12

terms of Petitioner’s conviction.

13

prosecutorial misconduct, which Petitioner has not shown, the

14

evidence and the prosecutor’s ensuing argument based on it did not

15

render the outcome of Petitioner’s trial unreliable.

16

Petitioner cannot show prejudice for the failure to object and

17

this part of his claim fails.

Assuming there was

Therefore,

18

For the foregoing reasons, Petitioner has not shown that the

19

California Supreme Court’s denial of this claim was unreasonable.

20

Accordingly, this claim is DENIED.

21

K.

22

Petitioner argues that the prosecution failed to preserve

Claim fourteen: failure to preserve evidence

23

(1) currency allegedly taken from Mr. Zavala and

24

(2) Petitioner’s car, for his defense’s forensic inspection.

25

contends that the state court was unreasonable in failing to hold

26

an evidentiary hearing to determine if the police or the

27

prosecution destroyed the evidence in bad faith.

28

requests an evidentiary hearing on this claim, but not discovery.
92

He

Petitioner

1

This claim is potentially unexhausted; Respondent argues that

2

this claim contains new allegations that were never presented to

3

the state court.

4

it without addressing exhaustion.

5

exhausted, it is denied as without merit, as discussed below.

6

evidentiary hearing is warranted.

7

However, as Respondent notes, the Court can deny
Thus, even if it is not
No

The government has a duty to preserve material evidence,
i.e., evidence whose exculpatory value was apparent before it was

9

destroyed and that is of such a nature that the defendant cannot

10
United States District Court
For the Northern District of California

8

obtain comparable evidence by other reasonably available means.

11

See California v. Trombetta, 467 U.S. 479, 489 (1984); Grisby v.

12

Blodgett, 130 F.3d 365, 371 (9th Cir. 1997).

13

has held that “unless a criminal defendant can show bad faith on

14

the part of the police, failure to preserve potentially useful

15

evidence does not constitute a denial of due process.”

16

Youngblood, 488 U.S. 51, 57 (1988) (describing such evidence as

17

“evidentiary material of which no more can be said than that it

18

could have been subjected to tests, the results of which might

19

have exonerated the defendant”).

20

The Supreme Court

Arizona v.

Petitioner argues that the police or the prosecution

21

destroyed or confiscated $1,000 or $2,000 that Mr. Zavala had on

22

his person at the time of the attack.

23

interview with Mr. Zavala conducted by a defense investigator

24

several months after the crime.

25

interview, Mr. Zavala stated that, after the attack, he went to

26

the hospital with $200 in his back pocket, and approximately

27

$1,000 or $2,000 in his front pocket.

28

the investigator that, after he was discharged from the hospital,

As evidence, he supplies an

Ex. 168, App. 113.

93

Id. at 21.

In that

Mr. Zavala told

1

he had only the $200 in his back pocket.

2

contends that the police either took the money or destroyed it.

3

He argues that the “existence of large amounts of money in the

4

apartment or on Zavala’s person at the time of the attack was

5

relevant to undercut the prosecutor’s theory that Zavala and

6

Barragan were small-time inexperienced drug dealers preyed upon by

7

their attackers.”

8

the money would raise an “inference that the brothers were active

9

drug dealers” and provide “reasonable doubt as to petitioner’s

Am. Pet. at 149.

Id. at 26.

Petitioner

He argues that evidence of

United States District Court
For the Northern District of California

10

guilt by demonstrating that the brothers’ livelihood made it

11

likely that others had a motive and opportunity to attack them.”

12

Id. at 149-50.

13

Petitioner does not present any evidence to support the claim

14

that the money actually existed, except for the investigator’s

15

interview.

16

of the money, even if it did exist.

17

evidence that the police or the prosecution took or destroyed any

18

money.

19

he did not have the money when he was transported to the hospital

20

because one of the perpetrators took the money when they robbed

21

him.

22

it” referring to “the guys, the attackers.”

23

26-27.

24

that any money was destroyed or taken by the police, or that the

25

prosecution was aware of any money that was not recorded as

26

evidence by the police.

27

not potentially exculpatory; there is an equal inference that

28

Petitioner robbed Mr. Zavala because he was a wealthy drug dealer.

He provides no evidence that the prosecution was aware
In addition, there is no

If Mr. Zavala ever had the money, it is more likely that

Indeed, in the interview, Mr. Zavala opined that “they took
Ex. 168, App. 113 at

Thus, Petitioner states no facts to support the accusation

Furthermore, the presence of the cash is

94

1

Furthermore, even if Petitioner stated facts to support his

2

claim that the police or the prosecution took or destroyed the

3

money, he fails to assert that he was unable to obtain comparable

4

evidence by any other reasonably available means.

5

allege that there was no comparable evidence of Mr. Zavala’s

6

extensive involvement in the drug trade.

7

government destruction of the money cannot, on its own, support a

8

due process violation.

9

process was violated when the government destroyed potentially

United States District Court
For the Northern District of California

10
11

He does not

Thus, the claimed

Accordingly, the petition’s claim that due

exculpatory evidence of Mr. Zavala’s cash is DENIED.
Petitioner also argues that the police destroyed his car in

12

bad faith.

13

in the car, after spraying it with Luminol.

14

“Luminol, even combined with other chemical agents, frequently

15

yields inaccurate results in that luminol often misreads other

16

fluids such as coca-cola, as blood.”

17

result of the destruction of the car, Petitioner argues, his own

18

investigator did not have the ability to test for the absence of

19

blood.

20

would have rebutted Ms. Ontiveros’ description of Petitioner’s

21

participation in the crime.

22

He claims that the state’s criminalist reported blood
He argues that

Am. Pet. at 150.

As a

He claims that evidence of the absence of blood in the car

However, as Respondent points out, Petitioner’s investigator

23

examined the car in July 1987, before the alleged destruction in

24

September 1987.

25

state’s criminalist about Luminol’s false positives.

26

Petitioner has not shown that he was unable to obtain comparable

27

evidence by any other reasonably available means.

28

are no facts from which to infer that the car was destroyed in bad

Also, Petitioner’s counsel cross-examined the

95

Thus,

Moreover, there

1

faith.

2

destroyed potentially exculpatory evidence by destroying

3

Petitioner’s car is DENIED.

4

Accordingly, the petition’s claim that the government

Thus, the record supports the state court’s conclusion that

5

the prosecution did not fail to preserve material evidence.

6

Petitioner has not shown that the state court’s decision was

7

“contrary to, or involved an unreasonable application of, clearly

8

established Federal law” or that it “resulted in a decision that

9

was based on an unreasonable determination of the facts in light

United States District Court
For the Northern District of California

10

of the evidence presented” to it.

11

petition’s claim for relief on the ground that the government

12

destroyed potentially exculpatory evidence is DENIED.

28 U.S.C. § 2254(d).

The

13

L.

14

Petitioner alleges that new evidence, in the form of seven

15

affidavits, shows that he lacked the requisite intent to commit

16

any of the crimes for which he was convicted.

17

request discovery or an evidentiary hearing on this claim.

18

claim is procedurally barred as untimely.

19

procedurally barred, it is without merit, as discussed below.

20

this reason, no exception to the procedural bar applies;

21

Petitioner has not demonstrated prejudice, see Frady, 456 U.S. at

22

170, and his new evidence does not demonstrate miscarriage of

23

justice, see McQuiggin, 133 S. Ct. at 1933.

24

Claim fifteen: innocence of capital murder

Petitioner does not
This

Even if it were not

This claim fails on its merits for two reasons.

For

Petitioner

25

has failed to make the requisite showing of innocence.

26

entirely clear what standard would be used for a freestanding

27

innocence claim, but the Supreme Court has stated that “the

28

threshold showing for such an assumed right would necessarily be
96

It is not

1

extraordinarily high.”

2

(1993).

3

Herrera v. Collins, 506 U.S. 390, 417

In Herrera, the petitioner’s newly discovered evidence was in

4

the form of affidavits, which the Court discredited for several

5

reasons applicable here.

6

context, motions based solely upon affidavits are disfavored

7

because the affiants’ statements are obtained without the benefit

8

of cross-examination and an opportunity to make credibility

9

determinations.”

Id.

Initially, it noted: “In the new trial

The Court noted that the affidavits

United States District Court
For the Northern District of California

10

contained hearsay and that they were provided eight years after

11

the petitioner's trial, and concluded that they were not

12

persuasive in light of the evidence produced at trial.

13

417-18.

Id. at

14

Similar reasons dictate concluding that Petitioner's

15

affidavits fail to satisfy an “extraordinarily high” standard.

16

With the exception of the affidavit from co-perpetrator Juan

17

Garcia (Ex. 164, App. 19), none of the affiants was present at the

18

victims’ apartment the night of the murder.

19

been in Petitioner’s presence within the few days leading up to

20

the crimes.

21

Petitioner’s presence the day before the murder and had used drugs

22

with him.

23

she had seen Petitioner a “couple days before” and he appeared

24

“jittery.”

25

Nor had most of them

Luis Villasana declared that he had been in

Ex. 164, App. 12 at 1.

Shirley LaVenture declared that

Ex. 164, App. 25.

Mr. Garcia’s affidavit, the only one that could provide an

26

account for the hours leading up to the incident and a description

27

of the event itself, is not credible.

28

to explain how Mr. Barragan was stabbed twenty-one times and how
97

His version of events fails

1

Mr. Zavala was beaten and stabbed with a tire iron.

2

Garcia’s version of events fails to comport with the evidence

3

adduced at trial, it does not support an actual innocence claim.

4

The remaining affidavits that would support an actual

Because Mr.

5

innocence argument rest on hearsay, describing what Ms. Ontiveros

6

allegedly said regarding the sequence of events.

7

Petitioner has failed to make an “extraordinarily high” showing of

8

his innocence, this claim is DENIED.

9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

M.

Because

Claim sixteen: prejudicial rereading of testimony during
deliberations

Petitioner contends that the trial court erred in allowing
prejudicial and incomplete testimony to be re-read to the jury
during the guilt phase deliberations.

The jury requested a re-

reading of Ms. Vargas’s “direct and cross concerning what photo
line-ups were shown to her prior to preliminary examination, [and]
what identifications were made.”

Ex. 114 at RT 11804.

The trial

court’s re-reading included Ms. Vargas’s testimony that she did
not identify Petitioner in the photo lineup prior to his
preliminary hearing because she was afraid.

Petitioner requested

that the court omit Ms. Vargas’s statement regarding her fear, or
include re-cross examination testimony related to her statement
that she was afraid.

The trial court refused his requests.

Petitioner does not request discovery or an evidentiary hearing on
this claim.
The California Supreme Court denied this claim.

It held that

Ms. Vargas’s testimony regarding her fear was directly relevant to
her failure to identify Petitioner at the photo lineup.

It

reasoned that “[t]o have omitted this testimony as part of the
98

1

reading would have grossly distorted the record.”

2

Cal. 4th at 1123.

3

not err when it refused to read portions of Ms. Vargas’s testimony

4

on re-cross examination because it concerned her identification of

5

Petitioner at his preliminary hearing and her failure to identify

6

Mr. Garcia during his live lineup.

7

this other testimony was not responsive to the jury’s request for

8

‘what photo lineups were shown to her prior to the preliminary

9

hearing and what identifications were made.’”

United States District Court
For the Northern District of California

10

Rodrigues, 8

Furthermore, it held that the trial court did

"Unlike the fear evidence,

Id.

Finally, it held that even if the trial court erred, the re-

11

reading was not prejudicial.

12

presented in conjunction with a re-reading of testimony by two

13

other witnesses.

14

counsel’s cross-examination to the effect that if Ms. Vargas was

15

truly afraid of Petitioner, “she could have said what she said at

16

Garcia’s live lineup.”

17

Petitioner alleges that the re-reading of Ms. Vargas’s testimony

18

implied that she was threatened by Petitioner, there is “no

19

suggestion in the record, either from Vargas’s own testimony or

20

from the conduct of trial, including the prosecutor’s arguments,

21

that the jury had been told or otherwise left with the impression

22

that Vargas’s fear might have been attributable to a threat.”

23

at 1124.

24

First, the reading was brief and

Second, the re-reading included defense

Id.

The court also noted that, while

Id.

Petitioner's argument that the trial court erred in reading

25

back selected portions of Ms. Vargas’s testimony in response to

26

the jury’s request is based on Ninth Circuit cases arising out of

27

federal criminal appeals.

28

issued a ruling on this issue.

The United States Supreme Court has not
Therefore, Petitioner cannot show
99

1

that the California Supreme Court’s denial of his claim “was

2

contrary to, or involved an unreasonable application of, clearly

3

established Federal law, as determined by the Supreme Court of the

4

United States.”

5

relief on the ground that the trial court erred in allowing a

6

prejudicial re-reading of testimony is DENIED.

28 U.S.C. § 2254(d)(1).

The petition’s claim for

7

N.

8

This claim is potentially unexhausted; Respondent argues that

9

it contains new allegations that were never presented to the state

Claim seventeen: insufficient evidence

United States District Court
For the Northern District of California

10

court.

11

without addressing exhaustion.

12

it is denied as meritless, as discussed below.

13

However, as Respondent notes, the Court can deny the claim
Thus, even if it is not exhausted,

Petitioner contends that there was insufficient evidence to

14

support his convictions for burglary, attempted robbery, felony

15

murder and the felony-based special circumstance8 because the only

16

evidence that supported his intent to enter the victims’ apartment

17

for theft purposes was the uncorroborated accomplice testimony of

18

Ms. Ontiveros.

19

testimony.

20

show that Petitioner entered the victims’ apartment with the

21

intent to steal, none of these convictions can be sustained.

22

Petitioner does not request discovery or an evidentiary hearing on

23

this claim.

California requires corroboration of accomplice

Petitioner argues that, without additional evidence to

24
25
26
27
28

8

While Petitioner’s death sentence has been vacated, the
special circumstances of which he was convicted remain relevant
because they require that the only other sentence for which he is
eligible is life without the possibility of parole. Cal. Pen.
Code § 190.2.
100

1

The California Supreme Court denied the claim, concluding

2

that the convictions satisfied the requirements of state law and

3

that Mr. Zavala’s testimony provided ample corroboration for Ms.

4

Ontiveros’s testimony.

Rodrigues, 8 Cal. 4th at 1128-30.

5

A state prisoner who alleges that the evidence in support of

6

his state conviction cannot be fairly characterized as sufficient

7

to have led a rational trier of fact to find guilt beyond a

8

reasonable doubt states a constitutional claim that, if proven,

9

entitles him to federal habeas relief.

See Jackson v. Virginia,

United States District Court
For the Northern District of California

10

443 U.S. 307, 321, 324 (1979).

11

that “Jackson claims face a high bar in federal habeas proceedings

12

because they are subject to two layers of judicial deference.”

13

Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam)

14

(holding that the Third Circuit “unduly impinged on the jury’s

15

role as factfinder” and failed to apply the deferential standard

16

of Jackson when it engaged in “fine-grained factual parsing” to

17

find that the evidence was insufficient to support petitioner’s

18

conviction).

19

The Supreme Court has emphasized

A federal court reviewing a state court conviction

20

collaterally does not determine whether it is satisfied that the

21

evidence established guilt beyond a reasonable doubt.

22

Borg, 982 F.2d 335, 338 (9th Cir. 1993); see also Coleman, 132 S.

23

Ct. at 2065 (“the only question under Jackson is whether [the

24

jury’s finding of guilt] was so insupportable as to fall below the

25

threshold of bare rationality”).

26

only whether, ‘after viewing the evidence in the light most

27

favorable to the prosecution, any rational trier of fact could

28

have found the essential elements of the crime beyond a reasonable

Payne v.

The federal court “determines

101

1

doubt.’”

2

319) (emphasis in original).

3

have found proof of guilt beyond a reasonable doubt, then habeas

4

relief is granted.

5

338.

6

Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at
If no rational trier of fact could

Jackson, 443 U.S. at 324; Payne, 982 F.2d at

Under Jackson’s standard of review, a jury’s credibility
determinations are entitled to near-total deference.

8

Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (concluding that a

9

credibility contest between a victim alleging sexual molestation

10
United States District Court
For the Northern District of California

7

and a defendant vehemently denying allegations of wrongdoing was

11

not a basis for revisiting the jury’s obvious credibility

12

determination).

13

Bruce v.

In sum, sufficiency of the evidence claims on federal habeas

14

review are subject to a “twice-deferential standard.”

15

132 S. Ct. at 2152.

16

trier of fact could have found the essential elements of the crime

17

beyond a reasonable doubt.

18

decision denying a sufficiency challenge may not be overturned on

19

federal habeas unless the decision was “objectively unreasonable.”

20

Id. (quoting Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per

21

curiam)).

22

Matthews,

First, relief must be denied if any rational

See id.

Second, a state court

California defines robbery as “the felonious taking of

23

personal property in the possession of another, from his person or

24

immediate presence . . . .”

25

conviction for attempted robbery, evidence must be produced to

26

show that a defendant (1) harbored a specific intent to commit

27

robbery, and (2) committed a “direct but ineffectual” act toward

28

the commission of the crime.

Cal. Penal Code § 211.

To sustain a

People v. Dillon, 34 Cal. 3d 441,
102

1

452-53 (1983).

2

defendant entered a building with the intent to commit larceny or

3

any felony.

4

prove a felony-murder special circumstance like murder in the

5

commission of a robbery, ‘the prosecution must show that the

6

defendant had an independent purpose for the commission of the

7

felony, that is, the commission of the felony was not merely

8

incidental to an intended murder.’ . . . It is only when the

9

underlying felony is merely incidental to the murder that the

A burglary conviction requires a showing that the

People v. Davis, 18 Cal. 4th 712, 715 (1998).

United States District Court
For the Northern District of California

10

felony-murder special circumstance does not apply.”

11

“To

Bolden, 29 Cal. 4th 515, 554 (2002) (citations omitted).

12

People v.

The testimony of accomplice Ms. Ontiveros and of victim Mr.

13

Zavala demonstrates Petitioner's intent to commit robbery.

14

Zavala testified that upon entering his apartment, co-perpetrator

15

Mr. Garcia asked, “¿Donde la tienes?” (Where do you have it?).

16

Petitioner argues that this statement cannot corroborate the

17

accomplice testimony because it came from co-perpetrator Mr.

18

Garcia.

19

one who testified that the statement was made upon Mr. Garcia and

20

Petitioner’s entering his apartment.

21

itself, conveys an intent to enter the apartment for the purpose

22

of procuring some item from the victims.

23

further supported by the fact that neither Petitioner nor Mr.

24

Garcia knew the victims and they had no other motive to commit

25

murder.

26

Mr.

While Mr. Garcia made the statement, Mr. Zavala was the

The statement, in and of

This inference is

Petitioner makes much of the fact that Mr. Zavala testified

27

that, after he told Mr. Garcia that what the two men were

28

searching for was in the closet, Petitioner did not go straight to
103

1

the closet.

2

Mr. Garcia to kill Mr. Zavala.

3

Petitioner would have gone to search the closet at that point

4

because the phone rang and Mr. Zavala testified that Petitioner

5

ordered Mr. Garcia to leave in case the police were on their way.

6

The jury was free to reach its own conclusion.

7

juries broad discretion in deciding what inferences to draw from

8

the evidence presented at trial requiring only that jurors draw

9

reasonable inferences from basic facts to ultimate facts.”

United States District Court
For the Northern District of California

10
11

Instead, Mr. Zavala testified, Petitioner directed
It is impossible to know whether

“Jackson leaves

Coleman, 132 S. Ct. at 2064 (internal quotation marks omitted).
Based on the evidence, it is possible that a rational trier

12

of fact could find Petitioner guilty of burglary, attempted

13

robbery, felony murder, and the felony murder special

14

circumstance.

15

was sufficient evidence to support Petitioner’s conviction was not

16

an unreasonable application of Jackson to the facts of this case.

17

Accordingly, Petitioner has not shown that the state court’s

18

decision was “contrary to, or involved an unreasonable application

19

of, clearly established Federal law” or that it “resulted in a

20

decision that was based on an unreasonable determination of the

21

facts in light of the evidence presented” to it.

22

§ 2254(d).

The California Supreme Court’s decision that there

28 U.S.C.

This claim is, therefore, DENIED.

23

O.

24

Petitioner argues that he was denied his right to present a

Claim eighteen: denial of right to present defense

25

defense when the trial court excluded evidence concerning his and

26

his co-perpetrators' intent to commit the crimes for which they

27

were convicted.

28

whether the attempted robbery or the burglary occurred and whether

He claims that this evidence was relevant to

104

1

special circumstances existed.

2

counsel questioned Mr. Zavala on cross-examination concerning

3

statements he made to the defense’s investigator before trial.

4

Defense counsel asked Mr. Zavala: “And did you tell Mr. Baughman

5

that you thought it looked like the attackers had come to the

6

apartment to kill your brother?”

7

prosecution objected to the question, saying that it called for

8

speculation as to the intent of the attackers.

9

sustained the objection.

United States District Court
For the Northern District of California

10
11

In particular, at trial, defense

Ex. 85 at RT 9047.

The

The trial court

Petitioner does not seek discovery or an

evidentiary hearing on this claim.
Petitioner argues that the question was not meant to elicit

12

speculation, but rather Mr. Zavala’s opinion of the intent of the

13

attackers, as he perceived it the evening of the attack.

14

argues that the error was prejudicial because the evidence “would

15

have raised reasonable doubts in the juror’s [sic] minds that he

16

possessed such requisite mental states” as relevant to the special

17

circumstances regarding the felony-murder charge, as well as the

18

attempted robbery and burglary charges.

19

He also

Am. Pet. at 161.

On appeal, the California Supreme Court denied this claim on

20

its merits.

21

sustaining the prosecutor’s objection to the line of questioning,

22

the perceived error was harmless, given the testimony of Ms.

23

Ontiveros, who claimed that she, Mr. Garcia, and Petitioner

24

planned the robbery together.

25

The court reasoned that, had Mr. Zavala testified that he believed

26

the attackers came to kill his brother, that testimony “would not

27

have been necessarily inconsistent with Ontiveros’s testimony and

28

Zavala’s other testimony indicating that the two attackers

It held that, even if the trial court erred in

See Rodrigues, 8 Cal. 4th at 1127.

105

1

coordinated their efforts to gain access to the apartment, subdue

2

the brothers, and obtain whatever ‘it’ was.”

3

of the other evidence the jury heard concerning intent, it was

4

“unlikely that the jury would have believed the motive was other

5

than robbery.”

6

Id.

Thus, given all

Id.

As the Supreme Court explained, "the standard for determining

7

whether habeas relief must be granted is whether the . . .

8

‘had substantial and injurious effect or influence in determining

9

the jury’s verdict.’”

error

Brecht v. Abrahamson, 507 U.S. 619, 623

United States District Court
For the Northern District of California

10

(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

11

(1946)).

12

The Court finds reasonable the California Supreme Court’s

13

holding that even if the trial court erred in preventing Mr.

14

Zavala from stating his opinion of Petitioner’s intent, the error

15

was harmless.

16

given the weight of the other evidence that established that

17

Petitioner and his accomplices intended to rob Mr. Zavala and his

18

brother, including the testimony of an accomplice, Mr. Zavala’s

19

opinion as to the attackers’ intent was unlikely to influence the

20

jury to find that the motive was anything other than robbery.

21

As discussed above with regard to claim seventeen,

Accordingly, the record supports the state court’s conclusion

22

that, even if the trial court erred in excluding Mr. Zavala’s

23

opinion concerning the attackers’ intent, that error was harmless.

24

Petitioner has not shown that the state court’s decision was

25

“contrary to, or involved an unreasonable application of, clearly

26

established Federal law” or that it “resulted in a decision that

27

was based on an unreasonable determination of the facts in light

28

of the evidence presented” to it.

28 U.S.C. § 2254(d).

106

The

1

petition’s claim for relief on the ground that the trial court

2

erred in excluding Mr. Zavala’s opinion testimony is DENIED.

3

P.

4

Petitioner raises six challenges to various jury instructions

Claim nineteen: errors in jury instructions

5

given during the guilt and penalty phases of his trial, a

6

cumulative error challenge, and an ineffective assistance of trial

7

counsel challenge based on counsel’s failure to object properly to

8

the instructions or to the evidence underlying them.

9

does not request discovery or an evidentiary hearing on this

Petitioner

United States District Court
For the Northern District of California

10

claim.

11

were not procedurally barred, it is without merit, as discussed

12

below.

13

applies; Petitioner has not demonstrated prejudice, see Frady, 456

14

U.S. at 170, and his new evidence does not demonstrate miscarriage

15

of justice, see McQuiggin, 133 S. Ct. at 1933.

16

This claim is procedurally barred as untimely.

Even if it

For this reason, no exception to the procedural bar

To obtain federal collateral relief for errors in the jury

17

charge, a petitioner must show that the “ailing instruction by

18

itself so infected the entire trial that the resulting conviction

19

violates due process.”

20

Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v.

21

DeChristoforo, 416 U.S. 637, 643 (1974) (stating that “[i]t must

22

be established not merely that the instruction is undesirable,

23

erroneous or even 'universally condemned,' but that it violated

24

some [constitutional right]” (brackets in original)).

25

instruction “‘may not be judged in artificial isolation,’ but must

26

be considered in the context of the instructions as a whole and

27

the trial record.”

See Estelle, 502 U.S. at 72; Cupp v.

The

See Estelle, 502 U.S. at 72 (quoting Cupp, 414

28
107

1

U.S. at 417).

2

“actual prejudice.”

3

Habeas relief is available only upon a showing of

1.

The trial court’s instructions on the legal
principles of accomplice corroboration did not
adequately guide the jurors

4
5

Brecht, 507 U.S. at 637.

Petitioner argues that the trial court’s failure to include

6

his requested addition to the court’s accomplice instructions

7

violated his constitutional rights.

8

the jury with CALJIC No. 3.11, the standard accomplice testimony

9

instruction.

The trial court instructed

Rodrigues, 8 Cal. 4th at 1131.

However, it refused

United States District Court
For the Northern District of California

10

to give Petitioner’s addition: “As used in this instruction,

11

‘testimony’ includes statements made out of court as well as

12

statements made in court by an accomplice.”

13

counsel requested the addition to clarify that Ms. Ontiveros’s

14

statements to the police also needed corroboration.

15

California Supreme Court held that while the trial court should

16

have given the requested addition to its accomplice instruction,

17

“the refusal to do so was not prejudicial error.”

18

Cal. 4th at 1131.

19

Id.

Petitioner’s

The

Rodrigues, 8

As discussed in claim seventeen above, Ms. Ontiveros’s

20

statements were corroborated.

21

show that he suffered any prejudice from the error.

22

Accordingly, Petitioner fails to

Petitioner also challenges the trial court’s failure to give

23

CALJIC No. 3.13, which advises that the required corroboration may

24

not come from a fellow accomplice.

25

the corroborating “¿Donde la tienes?” came from co-perpetrator Mr.

26

Garcia and, therefore, cannot constitute corroboration.

27

counsel agreed during trial that this particular jury instruction

28

did not apply.

Id. at 1132.

Again, Petitioner argues that

Defense

As explained above for claim
108

1

seventeen, victim Mr. Zavala’s testimony sufficiently corroborated

2

Ms. Ontiveros’s testimony.

3

failing to issue the instruction.

4

Thus, the trial court did not err in

In addition, the California Supreme Court’s conclusion that
co-perpetrator Mr. Garcia’s statement implicates none of the

6

concerns addressed in California Penal Code section 1111, the

7

section that requires accomplice testimony corroboration, is

8

binding.

9

that a state court's interpretation of state law binds a federal

10
United States District Court
For the Northern District of California

5

court sitting in habeas corpus); Hicks v. Feiock, 485 U.S. 624,

11

629 (1988) ("We are not at liberty to depart from the state

12

appellate court's resolution of these issues of state law.").

13

petition’s request for habeas relief for this allegation of

14

constitutionally impermissible jury instruction error is DENIED.

15
16
17

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (holding

2.

The

The trial court erred in instructing on the law of
conspiracy because there was no legally sufficient
evidence that Petitioner was involved in a
conspiracy

18

Petitioner argues: “Because there was no evidence as to the

19

existence of a conspiracy except the uncorroborated testimony of

20

an accomplice and the extrajudicial statements of the co-

21

defendant, the jury instructions on the principle of conspiracy

22

should not have been given.”

23

denied this claim on two grounds.

24

affirmatively consented to the instruction, which constitutes a

25

waiver of review on appeal.

26

Second, in California, “evidence of conspiracy may be admitted

27

even if the defendant is not charged with the crime of conspiracy”

28

and “once there is proof of the existence of the conspiracy there

Am. Pet. at 164.

The state court

First, defense counsel

Rodrigues, 8 Cal. 4th at 1134.

109

1

is no error in instructing the jury on the law of conspiracy.”

2

Id.

3

a finding of evidence of a conspiracy.

4

The California Supreme Court found that the record supported
Id.

The Court has already addressed Petitioner's challenge to the

5

accomplice corroboration requirement above in claim nineteen,

6

subclaim (1) and in claim seventeen.

7

challenging the California Supreme Court’s denial of his claim

8

based on California law, the state court decision is binding.

9

Bradshaw, 546 U.S. at 76; Hicks, 485 U.S. at 629.

To the extent Petitioner is

See

The petition’s

United States District Court
For the Northern District of California

10

request for habeas relief for this allegation of constitutionally

11

impermissible jury instruction error is DENIED.

12

3.

13
14

The trial court erred in failing to instruct
properly on the legal principles of accomplice
testimony corroboration

This allegation is addressed by the analysis of claim

15

nineteen, subclaims (1) and (2) and in claim seventeen.

16

petition’s request for habeas relief for this allegation of

17

constitutionally impermissible jury instruction error is DENIED.

18
19
20
21

4.

The

The trial court’s charge to the jury invited the
jury to draw adverse inferences against Petitioner
that were not supported by the evidence or
constituted an irrational presumption

Petitioner challenges five of the trial court’s jury

22

instructions that allowed drawing adverse inferences against him

23

based on his behavior: (1) CALJIC 2.71.7, pre-offense statements;

24

(2) CALJIC 2.71.5, adoptive admissions; (3) CALJIC No. 2.03,

25

consciousness of guilt--falsehoods; (4) CALJIC No. 2.04, efforts

26

by defendant to fabricate evidence; and (5) CALJIC No. 2.06,

27

efforts to suppress evidence.

He argues that the instructions

28
110

1

lacked evidentiary support and providing them to the jury violated

2

his constitutional rights.

3

The California Supreme Court determined that there was

4

sufficient support in the record to warrant issuing each of these

5

instructions.

6

record supports the state court’s determination.

7

to show that “‘fairminded jurists could disagree’ on the

8

correctness of the state court’s decision.”

9

at 101.

Rodrigues, 8 Cal. 4th at 1136-41.

A review of the
Petitioner fails

Harrington, 562 U.S.

Therefore, the petition’s request for habeas relief for

United States District Court
For the Northern District of California

10

this allegation of constitutionally impermissible jury instruction

11

error is DENIED.

12

5.

14

The court erred by omitting instructions on the
requisite concurrence of actus reus and mens rea
for first degree murder and on the requisite degree
of proof by circumstantial evidence of mens rea or
specific intent for each charged crime

15

Petitioner makes two specific challenges with respect to this

13

16

set of allegations.

17

violated his constitutional rights when it failed sua sponte to

18

instruct the jury with CALJIC No. 2.02 on circumstantial evidence

19

to prove mens rea.

20

trial court's failure to instruct the jury with CALJIC No. 2.02

21

was not prejudicial error because it delivered a more inclusive

22

instruction, CALJIC No. 2.01.

23

A state court’s interpretation of state law is binding on a

24

federal habeas court.

25

U.S. at 629.

26

First, he argues that the trial court

The California Supreme Court held that the

Rodrigues, 8 Cal. 4th at 1141-42.

See Bradshaw, 546 U.S. at 76; Hicks, 485

Second, Petitioner argues that the trial court violated his

27

constitutional rights when it failed to modify CALJIC No. 3.31 sua

28

sponte to guide “the jury on the requisite joint operation of act
111

1

and the required premeditation and deliberation needed for first-

2

degree murder.”

3

stated that Petitioner was required to make the request for a

4

modification during trial.

5

state precedent, that CALJIC 8.20, which was given immediately

6

following CALJIC No. 3.31, “adequately expressed the need for

7

joint operation of act and intent on that theory.”

8

Cal. 4th at 1143.

9

of state law is binding.

United States District Court
For the Northern District of California

10
11

Traverse at 138.

The California Supreme Court

The state court also held, relying on

Rodrigues, 8

As noted above, a state court’s interpretation
See Bradshaw, 546 U.S. at 76; Hicks, 485

U.S. at 629.
The petition’s request for habeas relief for this allegation

12

of constitutionally impermissible jury instruction error is

13

DENIED.

14

6.

15
16

The jury was inadequately informed and misguided
with respect to the elements of the special
circumstances

Petitioner makes two challenges regarding this set of

17

instructions: (1) CALJIC No. 8.83.1 was an insufficient

18

instruction for the mental states required for the special

19

circumstances conviction because it refers to a singular “mental

20

state” as opposed to plural “mental states”, and (2) the trial

21

court should have sua sponte instructed the jury with CALJIC No.

22

3.31 to clear up any confusion regarding the mental states

23

required.

24

argued that the trial court sua sponte should have instructed the

25

jury with CALJIC No. 8.83 to make clear the required mental

26

states.

Traverse at 139.

On direct appeal, Petitioner also

Rodrigues, 8 Cal. 4th at 1143.

27

The California Supreme Court denied all three of these

28

allegations, again based on failure to request, and held that the
112

1

trial court "instructed on the mental state required for each of

2

the special circumstances (CALJIC No. 8.81.17) immediately before

3

reading the circumstantial evidence instruction.

4

instructions as a whole, no reasonable juror would have understood

5

the challenged instruction not to apply to each of the requisite

6

mental states.

7

1143-44.

There was no error.”

Considering the

Rodrigues, 8 Cal. 4th at

8

The California Supreme Court went on to say:

9

Assuming the court’s omission [of CALJIC No. 3.31 as to
special circumstances] constituted error (see Use Note to
CALJIC No. 8.83.1; Use Note to CALJIC No. 2.02), the
instructions, when considered as a whole, properly guided the
jury’s consideration of the evidence. [Citation omitted.]
The jury was instructed that CALJIC No. 3.31 applied with
respect to the underlying crimes of burglary and attempted
robbery. It was also instructed pursuant to CALJIC No.
8.81.17. (See fn. 48, ante.) A reasonable juror receiving
these instructions would have understood that concurrence of
act and specific intent was required for the special
circumstance allegations, and could not have believed
otherwise. [Citation omitted.] The perceived error was
harmless under any standard. (Ibid.) . . . .

United States District Court
For the Northern District of California

10
11
12
13
14
15
16

[T]he court’s version of CALJIC No. 8.83.1 instructed on the
sufficiency of circumstantial evidence to prove the required
“mental state” for the special circumstance allegations. (See
fn. 48, ante.) A reasonable juror would have understood this
instruction to apply to the circumstantial evidence
concerning defendant’s purpose in committing the murder. No
error appears.

17
18
19
20
21

Rodrigues, 8 Cal. 4th at 1144-45.

22

Petitioner has failed to show that “‘fairminded jurists could

23

disagree’ on the correctness of the state court’s decision.”

24

Harrington, 562 U.S. at 101.

25

As with the above subclaims,

The petition’s request for habeas relief for this allegation

26

of constitutionally impermissible jury instruction error is

27

DENIED.

28

//
113

1

7.

Cumulative instructional error

2

Petitioner has failed to show any single prejudicial

3

instructional error and, therefore, any cumulative prejudicial

4

instructional error.

5

this allegation is DENIED.

6

8.

7

The petition’s request for habeas relief for

Trial counsel was ineffective for failing to object
to erroneous instructions

8

Because Petitioner has failed to show any prejudicial

9

instructional error, he cannot demonstrate deficient performance

United States District Court
For the Northern District of California

10

of counsel or prejudice.

11

for this allegation is DENIED.

12

Q.

13
14

The petition’s request for habeas relief

Claim twenty: prosecution failure to disclose
impeachment evidence

Petitioner argues that the prosecution withheld from him

15

impeachment information concerning the bias of Ms. Ontiveros and

16

Mr. Zavala.

17

hearing on this claim.

18

untimely.

19

merit, as discussed below.

20

procedural bar applies; Petitioner has not demonstrated prejudice,

21

see Frady, 456 U.S. at 170, and his new evidence does not

22

demonstrate miscarriage of justice, see McQuiggin, 133 S. Ct. at

23

1933.

24

Petitioner requests both discovery and an evidentiary
This claim is procedurally barred as

Even if it were not procedurally barred, it is without
For this reason, no exception to the

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court

25

held that “the suppression by the prosecution of evidence

26

favorable to an accused upon request violates due process where

27

the evidence is material either to guilt or to punishment,

28

irrespective of the good faith or bad faith of the prosecution.”
114

Id. at 87.

2

to disclose such evidence applies even when there has been no

3

request by the accused.

4

(1976).

5

well as exculpatory evidence.

6

667, 676 (1985).

7

show: (1) that the evidence at issue is favorable to the accused,

8

because it is either exculpatory or impeaching; (2) that it was

9

suppressed by the prosecution, either willfully or inadvertently;

10
United States District Court
For the Northern District of California

1

and (3) that it was material (or, put differently, that prejudice

11

ensued).

12

v. Greene, 527 U.S. 263, 281-82 (1999).

13

The Supreme Court has since made clear that the duty

United States v. Agurs, 427 U.S. 97, 107

Further, the duty encompasses impeachment evidence as
United States v. Bagley, 473 U.S.

To succeed on a Brady claim, Petitioner must

See Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler

“Brady information includes ‘material . . . that bears on the

14

credibility of a significant witness in the case.’”

15

v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1993) (quoting

16

United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988)).

17

“Evidence relevant to the impeachment of a witness adverse to the

18

defendant may be favorable and material when the reliability of

19

the witness may be determinative of the defendant’s guilt or

20

innocence.”

21

2009) (internal quotation marks omitted).

22

has held, “impeachment evidence is especially likely to be

23

material when it impugns the testimony of a witness who is

24

critical to the prosecution’s case.”

25

F.3d 900, 913-14 (9th Cir. 2009) (brackets omitted) (finding a

26

Brady violation based on the prosecution’s failure to disclose

27

evidence of a key witness’s criminal history of dishonest and

28

fraudulent conduct); accord Smith v. Cain, 132 S. Ct. 627, 630-31

United States

United States v. Collins, 551 F.3d 914, 924 (9th Cir.

115

As the Ninth Circuit

United States v. Price, 566

1

(2012) (finding impeachment evidence about prosecution’s sole

2

witness to be material).

3
4

1.

Discovery

Petitioner argues that the prosecution withheld evidence of

5

both police surveillance of the victims’ apartment and monetary

6

and immigration assistance exchanged for Mr. Zavala's testimony.

7

Petitioner seeks discovery as to when the prosecution knew of the

8

police reports of the alleged surveillance and the benefits Mr.

9

Zavala obtained.

As discussed below, Petitioner does not present

United States District Court
For the Northern District of California

10

any evidence that police reports of surveillance of Mr. Zavala’s

11

apartment actually exist and there are no disputed facts as to the

12

monetary and immigration benefits given to Mr. Zavala.

13

Furthermore, he has not shown good cause for such discovery.

14

Thus, his discovery request is DENIED.

15
16

2.

Evidentiary hearing

As discussed below, this claim fails on its merits.

17

Accordingly, there is no need for an evidentiary hearing.

18

Petitioner’s request for an evidentiary hearing on this claim is

19

DENIED.

20

See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2).
3.

21
22

Merits
a.

Ms. Ontiveros

Petitioner argues that the prosecution failed to disclose

23

that Ms. Ontiveros was receiving benefits “in addition to those

24

flowing from the terms and conditions” of her plea bargain.

25

Pet. at 174.

26

including placement in less restrictive prison programs despite

27

her criminal history and continued behavioral infractions, biased

28

her testimony against him.

Am.

Petitioner claims that these additional benefits,

He contends that the prosecutor
116

1

allowed Ms. Ontiveros “to testify falsely that no other benefits,

2

aside from those mentioned during her testimony, were bestowed

3

upon her as a result of her status as a prosecution witness” and

4

that the prosecutor “affirmatively represented to the Court that

5

his office did not intercede on Ontiveros’ behalf.”

6

claims that “the prosecutor failed to disclose Ontiveros’s history

7

of sexual liaisons with law enforcement; her correspondence with

8

prisoners admitting her ejection from the program, her sexual

9

relationship with an officer, and the role of Garcia in the crime;

United States District Court
For the Northern District of California

10
11

and, her criminal past with Garcia.”

Id.

He also

Id. at 175.

Petitioner’s allegations are insufficient to support this

12

claim.

13

questioned Ms. Ontiveros about most of the issues Petitioner

14

alleges were not disclosed, including her drug use, her plea deal,

15

and her custodial placement in less restrictive programs.

16

92 at RT 9789-91; Ex. 93 at RT 9890-97.

17

connection with claim fifteen, Petitioner has failed to provide

18

reliable evidence showing that Ms. Ontiveros actually engaged in

19

illicit relationships with police, or that such evidence would

20

have been admissible at trial.

21
22

The trial record shows that Petitioner’s counsel

As discussed above in

Accordingly, the petition’s claim for relief on the ground
that the prosecution withheld this impeachment evidence is DENIED.

23
24

See Ex.

b.

Mr. Zavala

Petitioner claims that, after his trial, he learned that a

25

prosecution interpreter had interviewed Mr. Zavala before he

26

testified.

27

attack and awoke to find his brother dead. Petitioner provides a

28

declaration of the investigator who interviewed the interpreter.

Mr. Zavala told her that he had blacked out during the

117

1

Ex. 186 at Ex. 65.

2

and exculpatory on the questions of who killed Andres Barragan –-

3

the ‘knife guy’ or the ‘tire iron guy’ —- whether Zavala’s in-

4

court identification of petitioner as one of the attackers was

5

credible, and whether his description of events should be

6

believed.”

7

Petitioner claims, “Such evidence was material

Am. Pet. at 175.

Petitioner was the "knife guy."

However, while Mr. Zavala said that a photograph of

8

Petitioner taken after Petitioner’s arrest resembled the man with

9

the knife who attacked the victim, Mr. Zavala’s identification of

United States District Court
For the Northern District of California

10

Petitioner at trial was equivocal.

11

counsel thoroughly cross-examined Mr. Zavala about his ability to

12

see his brother’s attacker in light of Mr. Zavala’s vantage point,

13

the amount of blood in his eyes, and the fact he was being

14

attacked himself.

15

during the attack would not further impeach his testimony that it

16

was Petitioner who committed the attack.

17

petition’s claim for relief on the ground that the prosecution

18

suppressed impeachment evidence of Mr. Zavala’s black-out during

19

the attack is DENIED.

20

Additionally, Petitioner’s

Therefore, any evidence that he blacked out

Accordingly, the

Petitioner also claims that Mr. Zavala received over $10,000

21

in benefits from the prosecution in exchange for his testimony.

22

He argues that these benefits were “sufficient to create a bias

23

which would have motivated [Mr. Zavala] to support any theory

24

which the state put forward.”

25

counters that the bulk of the benefits paid to Mr. Zavala were

26

paid after Petitioner’s trial, and that prosecutor could not have

27

disclosed allegedly excessive payments that had not yet been made.

Am. Pet. at 175.

28
118

Respondent

1

This argument is well-taken.

Furthermore, Petitioner does

2

not state how this evidence would have impeached Mr. Zavala’s

3

testimony.

4

Zavala was motivated to support the prosecution’s theory, but he

5

does not allege in what way Mr. Zavala’s testimony was false or

6

incorrect.

7

material, or that the prosecution’s failure to disclose it was

8

prejudicial.

9

He states vaguely that due to these benefits, Mr.

Thus, Petitioner does not show that this evidence was

Accordingly, the petition’s claim for relief on the ground

United States District Court
For the Northern District of California

10

that the prosecution suppressed impeachment evidence of monetary

11

benefits bestowed on Mr. Zavala is DENIED.

12

Next, Petitioner claims that the San Mateo County District

13

Attorney’s office interceded on Mr. Zavala’s behalf to gain his

14

legal entry into the United States around the time of Petitioner’s

15

trial.

16

undocumented and, after the attack, returned to Mexico.

17

Petitioner claims that Mr. Zavala and his family were granted

18

legal entry into the United States and allowed to remain.

19

However, the declarations submitted by Petitioner do not provide

20

any evidence of such intercession.

21

routine requests for immigration parole to allow Mr. Zavala to

22

enter the United States for the purpose of testifying.

23

166, App. 84.

24

He claims that, at the time of the attack, Mr. Zavala was

Indeed, they reflect only

See Ex.

Furthermore, Petitioner does not state how this evidence

25

would have impeached Mr. Zavala’s testimony, or to what effect.

26

Thus, Petitioner does not show that this evidence was material, or

27

that the prosecution’s failure to disclose it was prejudicial.

28

Accordingly, the petition’s claim for relief on the ground that
119

1

the prosecution suppressed impeachment evidence of immigration

2

assistance provided to Mr. Zavala is DENIED.

3

Finally, Petitioner argues that the prosecution failed to

4

disclose reports of ongoing police surveillance of Mr. Zavala’s

5

apartment.

6

surveillance happened, or that any reports of it exist, much less

7

that the prosecution withheld those reports or that they impeached

8

any evidence.

9

that the prosecution suppressed impeachment evidence based on

United States District Court
For the Northern District of California

10
11

Yet he does not present any evidence that such

Thus, the petition’s claim for relief on the ground

police surveillance is DENIED.
Accordingly, the record supports the state court’s conclusion

12

that the prosecution did not withhold impeachment information.

13

Petitioner has not shown that the state court’s decision was

14

“contrary to, or involved an unreasonable application of, clearly

15

established Federal law” or that it “resulted in a decision that

16

was based on an unreasonable determination of the facts in light

17

of the evidence presented” to it.

18

petition’s claim for relief on the ground that the prosecution

19

withheld impeachment evidence is DENIED.

28 U.S.C. § 2254(d).

The

20

R.

21

Petitioner alleges two instances where the prosecution used

Claim twenty-one: prosecution’s use of false testimony

22

false and misleading testimony.

23

“prosecutor used Ontiveros to strongly imply that Mr. Rodrigues

24

was in on and participated in the planning of the robbery,”

25

Traverse at 144, even though the prosecutor knew that Petitioner

26

was not a participant in the planning.

27

the prosecutor knowingly “elicited and presented false and

28

misleading testimony from his forensic experts during trial.”

First, he alleges that the

120

Second, he alleges that

Am.

1

Pet. at 197.

2

with the claim, but he does request an evidentiary hearing.

3

discussed above, these claims are procedurally barred.

4

exception applies because Petitioner has not demonstrated

5

prejudice, see Frady, 456 U.S. at 170, and because his new

6

evidence does not demonstrate miscarriage of justice, see

7

McQuiggin, 133 S. Ct. at 1933.

8

unexhausted; Respondent argues that it contains new allegations

9

that were never presented to the state court.

Petitioner does not request discovery associated
As

No

This claim is also potentially

Even if these

United States District Court
For the Northern District of California

10

allegations were not procedurally barred or unexhausted, they are

11

without merit, as discussed below.

12

The Supreme Court has held that "a conviction obtained by the

13

knowing use of perjured testimony is fundamentally unfair, and

14

must be set aside if there is any reasonable likelihood that the

15

false testimony could have affected the judgment of the jury.”

16

Agurs, 427 U.S. at 103.

17

presentation of false evidence.

18

nn.8-9 (explaining that a “‘deliberate deception of court and jury

19

by the presentation of testimony known to be perjured’ is

20

inconsistent with ‘the rudimentary demands of justice,’” and a

21

resulting conviction must be set aside “if there is any reasonable

22

likelihood that the false testimony could have affected the jury’s

23

verdict”) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935));

24

Spivey, 194 F.3d at 979 (explaining on habeas that a conviction

25

based on false evidence warrants a new trial if there is a

26

reasonable probability that without the evidence the result would

27

have been different); Napue v. Illinois, 360 U.S. 264, 269 (1959).

28

//

So must a conviction obtained by the
See Bagley, 473 U.S. at 678-80

121

1
2

1.

Evidentiary hearing

As discussed below, this claim fails on its merits.

3

Accordingly, there is no need for an evidentiary hearing.

4

Petitioner’s request for an evidentiary hearing on this claim is

5

DENIED.

See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2).

6
7

Thus,

2.

Merits

Petitioner alleges that Ms. Ontiveros’s testimony at his

8

trial differed from her testimony at Mr. Garcia’s trial regarding

9

the extent to which Petitioner was an active participant in

United States District Court
For the Northern District of California

10

planning the robbery.

11

records of Mr. Garcia’s trial to show how the prosecutor

12

emphasized facts differently at the two trials.

13

not allege that Ms. Ontiveros’s testimony at his trial was false,

14

but rather that she strongly implied that he participated in

15

planning the robbery when he had “nothing to do with the

16

planning.”

17

after the conclusion of Petitioner’s trial.

18

not allege that the prosecution knew Ms. Ontiveros was going to

19

alter her testimony at the second trial.

20

evidence that the prosecutor was aware at the time of Petitioner’s

21

trial that Ms. Ontiveros would change her testimony in the future.

22

Petitioner's evidence consists of the trial

Traverse at 144.

Petitioner does

Furthermore, Mr. Garcia’s trial came
Petitioner also does

Therefore, there is no

In addition, evidence that Petitioner participated little in

23

the planning of the crime, when considered with the other evidence

24

against him, likely would not have swayed the jury against

25

convicting him.

26

Petitioner also alleges that the prosecutor elicited false

27

and misleading testimony from his forensic experts.

28

criminalist testified at Petitioner’s trial that a drop of blood
122

The

1

found outside the victims’ apartment could have been a mixture of

2

type A (the victims’ blood type) and type O (Petitioner’s and Mr.

3

Garcia’s blood type).

4

testified that the blood was most likely type A alone.

5

does not explain how either of these statements was false.

6

criminalist may have truthfully testified that the drop of blood

7

could have been a mixture, but that a mixture was not as likely as

8

a drop of type A blood from a single individual.

9

even if Petitioner’s allegations were sufficient to show that the

At Mr. Garcia’s trial, the same criminalist
Petitioner
The

Furthermore,

United States District Court
For the Northern District of California

10

challenged evidence was false, he does not show “a reasonable

11

probability that without the evidence the result would have been

12

different.”

13

Cir. 1989).

14

United States v. Endicott, 869 F.2d 452, 455 (9th

Accordingly, the record supports the state court’s conclusion

15

that the prosecution did not knowingly present perjured testimony

16

or false evidence.

17

court’s decision was “contrary to, or involved an unreasonable

18

application of, clearly established Federal law” or that it

19

“resulted in a decision that was based on an unreasonable

20

determination of the facts in light of the evidence presented” to

21

it.

22

ground that the prosecution knowingly presented perjured testimony

23

or false evidence is DENIED.

Petitioner has not shown that the state

28 U.S.C. § 2254(d).

The petition’s claim for relief on the

24

S.

25

Petitioner argues that the prosecutor withheld a number of

Claim twenty-two: withholding of discovery

26

items from discovery or prejudicially delayed delivery of certain

27

pieces of discovery until after defense counsel had made strategic

28

decisions that might have been different had counsel known of the
123

1

evidence the prosecutor had.

2

discovery or an evidentiary hearing on this claim.

3

Petitioner does not request

Many of the instances of delayed discovery that Petitioner

4

cites relate to the penalty phase of his trial.

5

Petitioner is no longer subject to a capital sentence, those

6

allegations are moot.

7

they relate to the guilt phase of his trial.

8
9

Because

A few allegations are still viable because

The standard for disclosure of impeachment or exculpatory
evidence is explained above in claim twenty.

In sum, for a Brady

United States District Court
For the Northern District of California

10

claim to succeed, a petitioner must show: (1) that the evidence at

11

issue is favorable to the accused, either because it is

12

exculpatory or impeaching; (2) that it was suppressed by the

13

prosecution, either willfully or inadvertently; and (3) that it

14

was material (or, put differently, that prejudice ensued).

15

540 U.S. at 691; Strickler, 527 U.S. at 281-82.

16

Banks,

With respect to the guilt phase of his trial, Petitioner

17

challenges the prosecution’s failure to provide at all or in a

18

timely manner: (1) a comparison of the hairs removed from the

19

deceased victim's hand to those found on the knife that was the

20

alleged murder weapon; (2) an examination of physical evidence

21

taken from Petitioner’s car; (3) an analysis of eleven valid but

22

unidentified fingerprints taken from Petitioner’s car; and (4) a

23

report from the national database on the bloody fingerprints

24

lifted from the victims’ door, which Petitioner acknowledges was

25

never completed.

26

the prosecution’s failure to disclose the addresses and criminal

27

history of the 120 witnesses on its witness list in a timely

28

manner.

Am. Pet. at 209-10.

Petitioner also challenges

Petitioner specifically argues that had his counsel been
124

1

able to procure the presence of James Williams at trial, his

2

counsel would have been able to establish that the unidentified

3

bloody prints on the door did not belong to Mr. Williams and

4

would, therefore, have supported Petitioner’s defense that an

5

unknown third party committed the murder.

6

claim was presented to the state court for the first time in

7

Petitioner’s initial state petition for writ of habeas corpus.

8

The California Supreme Court denied the claim on the merits

9

without further explanation.

United States District Court
For the Northern District of California

10

Id. at 214-15.

This

Ex. 172.

Prior to trial, the court held a number of hearings on

11

discovery motions filed by Petitioner’s counsel.

12

23 at RT 313, 323-27; Ex. 25 at RT 902-24; Ex. 31 at RT 2784-818;

13

Ex. 52 at RT 5338-80; Ex. 63 at RT 6910-36; Exs. 72 and 73 at RT

14

8048-213; and Ex. 74 at RT 8259-72.

15

trial court heard all of Petitioner’s counsel’s concerns regarding

16

delayed or denied discovery up to that point.

17

ultimately determined that “there was not either overt or either

18

negligent attempt to conceal information.

19

information is available.”

20

See, e.g., Ex.

During these hearings, the

The trial court

In fact, all of the

Ex. 74 at RT 8273.

It appears from Petitioner’s briefing, the trial record, and

21

Petitioner’s first state habeas petition that the four items

22

Petitioner argues the prosecution should have surrendered do not

23

exist.

24
25

i.

Hair Found on Victim’s Hand and on the Knife

Petitioner acknowledges that the hair sample testing he

26

believes should have been conducted, specifically comparing the

27

unidentified hair samples on the victim’s hand to the unidentified

28

hair samples on the murder weapon, was never conducted.
125

Am. Pet.

1

at 209.

2

victim, his brother, Ms. Ontiveros, Mr. Garcia, and Petitioner.

3

Id.

4

the two unidentified sets of samples should be compared against

5

each other.

6

indicating the absence of such testing had been disclosed to

7

counsel sooner, counsel could have conducted such testing on their

8

own and that the results would have been exculpatory.

9

Petitioner notes the samples were compared with the

Because those tests yielded negative results, he argues that

Id.

Petitioner appears to argue that if the notes

Id.

Petitioner’s expectation about the results of any such

United States District Court
For the Northern District of California

10

testing is speculative.

11

required to do more than ‘merely speculate’” about what such

12

testing would reveal.

13

(9th Cir. 2012).

14

prosecution failed to turn over exculpatory evidence and has,

15

accordingly, failed to make the requisite showing to prevail under

16

Brady on this claim.

To state a Brady claim, Petitioner “is

Runningeagle v. Ryan, 686 F.3d 758, 769

Thus, Petitioner has not shown that the

17

Moreover, Petitioner has not shown that he has been

18

prejudiced by the prosecutor’s failure to turn over notes in a

19

timely manner indicating that such testing had not been done.

20

Petitioner “does not need to prove that a different result would

21

have occurred in his case.

22

court unreasonably decided that there was not 'a reasonable

23

probability of a different result.’”

24

F.3d 970, 983 (9th Cir. 2013) (citation omitted).

25

probability” may not be based on mere speculation without adequate

26

support.

27
28

He needs to show only that the state

Aguilar v. Woodford, 725
A “reasonable

See Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995).

The failure to provide timely testing reports on the hair
analysis was challenged at the “omnibus” discovery hearings
126

1

occurring on June 13 and 14, 1987.

2

213; Ex. 74 at RT 8259-72.

3

prosecution’s failure to submit the hair samples for analysis in a

4

timely fashion.

5

there had been a delay in getting a court order to require

6

Petitioner to submit to a hair analysis and that hair analysis was

7

labor intensive and time consuming.

8

noted, the trial judge found no attempt to withhold.

9

prosecution had withheld the hair testing analyses and notes, the

See Exs. 72 and 73 at RT 8048-

Petitioner’s counsel challenged the

Ex. 74 at RT 8261.

The prosecution argued that

Ex. 74 at RT 8263-66.

As

Even if the

United States District Court
For the Northern District of California

10

record indicates that defense counsel also had received hair

11

samples, from which they could have conducted their own testing.

12

Ex. 74 at RT 8265.

13

prejudiced by the prosecutor’s failure to submit the hair analysis

14

in a more timely fashion.

15

ii.

16

Petitioner’s defense, therefore, was not

Physical Evidence Taken from Petitioner’s Car

Petitioner challenges the prosecutor’s failure to take

17

photographs of the Luminol tests conducted on his car and the

18

prosecutor’s failure to notify him of the destruction of the car.

19

Petitioner’s argument about potential false positives identified

20

by Luminol, and any potential prejudice, was addressed in the

21

discussion of claim fourteen above.

22

photographs of the Luminol test results should have been taken,

23

does not support a finding of a Brady violation.

24

His argument, that

As for the opportunity to conduct his own evaluation of the

25

car, Petitioner’s investigator examined the car in July 1987,

26

months before the alleged destruction of the car in September

27

1987.

28

about Luminol’s false positives.

Petitioner’s counsel cross-examined the state’s criminalist
He has not shown that the
127

1

prosecution withheld any evidence that could not have been

2

discovered by the defense’s investigation.

3

not shown prejudice from the destruction of the car.

4

iii. Two Sets of Unidentified Fingerprints

Accordingly, he has

5

Petitioner challenges the prosecution’s failure to run

6

through a national database eleven valid fingerprints taken from

7

his car.

8

prosecution’s failure to run through the same database bloody

9

fingerprints found on a door in the victims' apartment.

Am. Pet. at 210.

Similarly, he challenges the

Id.

United States District Court
For the Northern District of California

10

Petitioner’s belief that the results of these tests would provide

11

exculpatory evidence is speculative.

12

Again, also, he has failed to show prejudice.

While

13

Petitioner argues that the murder was actually part of a drug deal

14

with unknown parties gone awry, he has produced no evidence to

15

support such a defense.

16

unidentified fingerprints in his own car could indicate another

17

attacker.

18

Petitioner has not explained how

As for the bloody fingerprints on the victims’ door frame,

19

Petitioner did have the opportunity to question the prosecution’s

20

criminalist, Stanley Baker, about the possibility that at least

21

one of the bloody fingerprints could have been from James

22

Williams, a man identified by the police as having been in the

23

area of the victims’ apartment the day of the murder.

24

testified that one bloody print had characteristics that were

25

similar to Mr. Williams’s fingerprints and such characteristics

26

were shared by only five percent of the population.

27

9304.

28

fingerprint as belonging to Mr. Williams.

Mr. Baker

Ex. 88 at RT

Mr. Baker, however, could not positively identify the

128

Ex. 88 at RT 9304.

1

From this, Petitioner argues that the fingerprints in question

2

were not Mr. Williams’s as asserted by the prosecution, but

3

belonged to an unknown assailant.

4

show that the fingerprints did not belong to Mr. Williams, he

5

would not be able to show that the California Supreme Court's

6

decision was unreasonable.

7

Even if Petitioner were able to

Petitioner also argues that a list of witness addresses and

8

convictions was not timely provided, but the only guilt phase

9

potential witness about whom he sought information was Mr.

United States District Court
For the Northern District of California

10

Williams.

11

able to interview Mr. Williams and procure a new fingerprint

12

sample if they had been provided his address in a timely fashion,

13

the exculpatory value of the information Mr. Williams could

14

provide is speculative.

15

indicates that even if defense counsel had been provided with the

16

address police had on file, they may not have been able to locate

17

Mr. Williams.

18

fingerprint sample from Mr. Williams; however, Mr. Williams was no

19

longer in the area and police could not locate him.

20

9305.

While Petitioner argues that counsel would have been

Moreover, the testimony in the case

Mr. Baker testified that he had requested another

Id. at RT

21

Petitioner has not shown that the evidence he says was

22

withheld was exculpatory or had impeachment value; that the state

23

withheld it, either intentionally or negligently; or that he was

24

prejudiced by not having it.

25

that the state court’s decision was “contrary to, or involved an

26

unreasonable application of, clearly established Federal law” or

27

that it “resulted in a decision that was based on an unreasonable

28

determination of the facts in light of the evidence presented” to

Therefore, he has failed to show

129

1

it.

2

relief on the ground that the state withheld discovery is DENIED.

28 U.S.C. § 2254(d).

Accordingly, the petition’s claim for

3

T.

4

Petitioner argues that the prosecutor improperly interfered

Claim twenty-four: witness interference

5

or tampered with the testimony of five witnesses: Rejon Mitchell,

6

Hilario Rodriguez, Ricky Calles, Officer Leo Rodriguez, and

7

criminalist Elizabeth Skinner.

8

these witnesses testified at the penalty phase of Petitioner’s

9

trial for the purposes of presenting aggravating factors that

With the exception of Ms. Skinner,

United States District Court
For the Northern District of California

10

would subject Petitioner to the death penalty.

11

is no longer subject to a capital sentence, the claims as to these

12

witnesses are moot.

13

Because Petitioner

Petitioner explains the following sequence of events.

Ms.

14

Skinner testified at the guilt phase that none of the blood found

15

at the scene could have belonged to Petitioner.

16

prosecution announced that she wanted to introduce a changed

17

opinion.

At a hearing, Ms. Skinner testified about two changes of

18

opinion.

A sample of blood on the doorway to the victims’

19

apartment did in fact test consistent with Petitioner’s blood

20

transferrin factor type of CD; it was not a C result as she had

21

initially reported.

22

actually type 2 in a GC test, not a type 2-1 as she had initially

23

reported.

24

Petitioner's blood type, but the change of opinion was reported in

25

the local press during the guilt phase of the trial.

26

224.

27

hearing on this claim.

Later, the

Also, co-perpetrator Mr. Garcia's blood was

The trial court excluded her new opinion about

Am. Pet. at

Petitioner does not request discovery or an evidentiary

28
130

1

Regarding Petitioner's blood, Respondent emphasizes that Ms.

2

Skinner did not testify at trial as to her changed opinion.

3

Additionally, Respondent asserts that Ms. Skinner’s changed

4

opinion about Mr. Garcia’s blood type in the GC test was not

5

prejudicial to Petitioner.

6

California Supreme Court’s denial of this claim was unreasonable.

7

Because the challenged testimony was excluded from trial, Ex. 96

8

at RT 10203-04, Petitioner cannot show that he was prejudiced in

9

any way by it.

Petitioner has failed to show that the

United States District Court
For the Northern District of California

10

Petitioner notes that media reports covered Ms. Skinner’s new

11

opinion that blood at the crime scene was consistent with his, but

12

fails to make any assertion or showing that the jury actually saw

13

this coverage.

14

newspaper accounts, listen to radio programs or view television

15

programs regarding the case during the trial.

16

Jurors are presumed to follow their instructions.

17

Marsh, 481 U.S. 200, 211 (1987).

18

The jurors were instructed not to read any

Ex. 78 at RT 8492.
Richardson v.

Accordingly, the record supports the state court’s conclusion

19

that the prosecution did not commit misconduct related to witness

20

interference.

21

decision was “contrary to, or involved an unreasonable application

22

of, clearly established Federal law” or that it “resulted in a

23

decision that was based on an unreasonable determination of the

24

facts in light of the evidence presented” to it.

25

§ 2254(d).

26

that the prosecution interfered with witnesses is DENIED.

27

//

28

//

Petitioner has not shown that the state court’s

28 U.S.C.

Thus, the petition’s claim for relief on the ground

131

1

U.

2

In this claim, Petitioner challenges the trial court's

Claim forty-one: erroneous removal of jurors for cause

3

removal of potential jurors Melissa Cassiday and Grace Levario for

4

cause.

5

whether they could impose the death penalty were not sufficiently

6

problematic to warrant their removal.

7

discovery or an evidentiary hearing on this claim.

8
9

He argues that their responses to questions regarding

Petitioner does not request

The California Supreme Court denied this claim stating: “The
voir dire of prospective jurors Levario and Cassiday amply

United States District Court
For the Northern District of California

10

supported the trial court’s decision to exclude them.”

11

8 Cal. 4th at 1147.

12

Rodrigues,

In light of the facts that these jurors were excused based on

13

their opinions regarding the death penalty and Petitioner is no

14

longer subject to a capital sentence, this claim is moot.

15

it were not, Petitioner has failed to show that the exclusion of

16

these two jurors prejudiced him and had a substantial and

17

injurious effect on the jury’s verdict, because the death sentence

18

was vacated.

19

Even if

See Brecht, 507 U.S. at 629.

Moreover, there is no merit to this claim.

Petitioner relies

20

on Wainwright v. Witt to support his argument that potential

21

Jurors Levario and Cassiday should not have been excused based on

22

their expressed views regarding capital punishment.

23

(1985).

24

juror whom the trial court excused:

25
26
27
28

469 U.S. 412

In that case, the following exchange took place with a

[Q. Prosecutor:] Now, let me ask you a question, ma'am. Do
you have any religious beliefs or personal beliefs against
the death penalty?
[A. Colby:] I am afraid personally but not—
[Q]: Speak up, please.
[A]: I am afraid of being a little personal, but definitely
not religious.
132

1
2
3
4
5
6

[Q]: Now, would that interfere with you sitting as a juror in
this case?
[A]: I am afraid it would.
[Q]: You are afraid it would?
[A]: Yes, Sir.
[Q]: Would it interfere with judging the guilt or innocence
of the Defendant in this case?
[A]: I think so.
[Q]: You think it would.
[A]: I think it would.
[Q]: Your honor, I would move for cause at this point.
THE COURT: All right. Step down.

7

Id. at 415-16.

8

exchange to be a sufficient basis on which to exclude the juror.

9

Id. at 435.

The United States Supreme Court found this

The Supreme Court also noted that such a claim is a

United States District Court
For the Northern District of California

10

factual one and, when raised in the context of a petition for writ

11

of habeas corpus, is entitled to deference.

12

this case was decided, Congress enacted AEDPA, which substantially

13

circumscribed the standard of review for factual determinations.

14

Under AEDPA, state court findings of fact “are presumed correct”

15

unless rebutted by clear and convincing evidence.

16

Cockrell, 537 U.S. 322, 340 (2003); see also Gonzalez v. Pliler,

17

341 F.3d 897, 903 (9th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)).

18

Petitioner has failed to make such a showing.

19

Id. at 426-30.

Since

Miller-El v.

Exchanges took place during the voir dire of potential jurors

20

Levario and Cassiday similar to, though more extensive than, the

21

one in Witt, where the Court upheld dismissing the potential

22

juror.

23

Supreme Court decision denying this claim was unreasonable.

24
25

Accordingly, Petitioner cannot show that the California

1.

Potential Juror Levario

When initially questioned, Ms. Levario stated, “I would never

26

vote, you know, for [the death penalty] or against it.

27

have to, like I said, hear the case.”

28

Petitioner relies on this to argue that Ms. Levario showed that
133

I would

Ex. 35 at RT 3350.

1

she could be impartial and follow the trial court’s instruction.

2

However, she immediately thereafter said, “I don’t really feel

3

like I could answer that right now because I don’t really know how

4

I’m going to feel after I -- I think maybe I could, but I don’t,

5

I’m not positive at this time, you know, how I’m going to feel.”

6

Id.

7

The trial court then asked, “Do you think that you would be

8

in a position where under no circumstances could you ever impose

9

the death penalty?”

United States District Court
For the Northern District of California

10

Id.

11

Id. at RT 3351.

She replied, “I think so.”

further.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Her answers got stronger as the prosecutor questioned her

[Q]: Do you feel that if you were selected as a juror in this
case and were asked to go into the jury room with your fellow
jurors to decide whether or not to impose the death penalty
. . . on a person that your inner feelings would be such that
you’d find yourself in a position where you’d have to say, “I
just don’t think I can do it”?
[A]: I believe so, that I would be that type of person.
. . . .
[Q]: And at this point, do you feel that if you were put in
that position that your -- your feelings about life and death
are such that you possibly would not be able to cast a vote
for the death penalty?
[A]: Like I said, I have mixed emotions about it, but I
believe I will have a problem deciding, yes.
[Q]: Okay. If I might just ask a couple of further
questions. The problems that you feel in that regard, are
they because of your conscientious feelings about life and
death?
[A]: I think so and I also think that -- I don’t know, I just
feel like God is the only one that can, you know, really make
that judgment on a person, but –
[Q]: There are some people who hold that belief very dearly
and it’s not necessarily a wrong belief.
[A]: Right.
[Q]: Unfortunately in this case we’re attempting to find 12
people who are not, I don’t want to say burdened because it
sounds like it’s wrong, burdened with feelings such as that
such that in the final analysis they say, “Gee, though I
believe in the law, when it comes to me actually imposing it
I don’t think I can. Do you feel you’re one of these
persons?
[A]: I think so.
134

1
2

Id. at RT 3353-55.
Defense counsel attempted to rehabilitate her and asked her

3

questions about her ability to adhere to the judge’s instructions.

4

She indicated that she could be impartial, though she remained

5

equivocal about it.

6

evidence, it would really have to be the real bad against the good

7

to even -- but I -- like I said, I have mixed emotions.

8

know whether I can say the death penalty right there and then.”

9

Id. at RT 3357.

She said, “I would really need a lot of

I don’t

United States District Court
For the Northern District of California

10

The trial court then questioned her again based on a

11

perceived contradiction in her answers about whether she could

12

impose the death penalty.

13
14
15
16
17
18
19
20
21
22
23

The following exchange took place:

[Q]: Now, if you imagine that after you’ve heard the evidence
of aggravation and mitigation, that is, the bad as opposed to
the good, and you find that the bad outweighs the good and
that the bad is substantial when compared to the good, and
you are faced with the possible choice between the two
penalties, if you thought that the evidence in the case
justified it, that is, justified the death penalty, could you
vote to put someone to death?
[A]: I don’t think so, no.
. . . .
[Q]: Just to rephrase. Are you telling us that in, under no
circumstances in any case even though you felt that the
penalty of death was justified that could you vote for death?
[A]: I don’t think so. I -- I just can’t understand really
the death and the life imprisonment, it, to me, it’s just an,
almost just as bad life imprisonment.
Id. at RT 3358-59.
Potential juror Levario was subjected to much more thorough

24

questioning than the potential juror at issue in Witt and was much

25

clearer about her inability to vote to impose the death penalty

26

even if she believed it was warranted under the circumstances of

27

the case.

28

court that under no circumstance even though she would believe

The trial court here stated that “it’s clear to the

135

1

that the facts would justify it in fact could she impose it.”

2

at RT 3360.

3

evidence that would rebut the presumption that this finding was

4

correct.

5

2.

6

Id.

Petitioner has failed to offer clear and convincing

Potential Juror Cassiday

When potential Juror Cassiday was questioned initially, she

7

noted that she would have a problem “feeling no prejudice for the

8

defendant” because he looked identical to her ex-brother-in-law,

9

who was an alcoholic and hit her sister.

Ex. 38 at RT 3624.

She

United States District Court
For the Northern District of California

10

was not dismissed for this reason because she did say that she

11

would “rise above it”; however, she felt it significant enough to

12

note on her questionnaire and discuss openly with the court.

13

at RT 3626.

14

Id.

She was excused because of her inability to vote to impose

15

the death penalty.

16

significant likelihood that she would not be able to cast such a

17

vote:

18
19
20
21
22
23
24
25
26
27
28

Her exchanges with the court indicated a

[Q]: Okay. The real question is if you’re faced with that
situation in which you’ve made that independent decision
you’ve come across it fairly and honestly and you’ve come to
the conclusion, “Yes, this is a case that warrants the death
penalty,” is there going to be any feelings or any belief
that’s going to prevent you or substantially impair you in
casting that vote for the death penalty?
[A]: It’s possible.
[Q]: That leaves us right -[A]: It just hit me, you know, then you said, the way you -yes, it’s possible.
[Q]: This is probably the toughest thing you’re going to do
in a long time. We need to ask you to take that possible and
turn it into your best prediction of whether you’re going to
be able to do that or not because unfortunately once you’re
selected there are no tomorrows.
[A]: I know.
[Q]: And we have to know.
[A]: If I -- okay. I have to weigh the two, go between yes
and no, right?
[Q]: I don’t know of any other way to give an answer.
136

[A]: Right. I -- I don’t know if I could do it, no.
Probably -- I don’t know, I really don’t, honestly.
. . . .
[Q]: Okay. Do you feel at this point that looking into the
future you were placed into a position where you
intellectually and rationally understood that the death
penalty was the appropriate verdict that you would still be
substantially impaired in your ability to go ahead and follow
the law and cast that vote just because of your personal
hesitation or moral views?
[A]: Moral views, I guess, yeah. Sleeping at night, yes, I
think so.

1
2
3
4
5
6
7

Id. at RT 3644-45.

8

much more in-depth than the one upheld by the Supreme Court in

9

Witt.

Like that with Ms. Levario, this exchange is

United States District Court
For the Northern District of California

10

Defense counsel did not attempt to rehabilitate Ms. Cassiday,

11

nor did he indicate a disagreement with the prosecutor’s motion to

12

excuse her under Witt, as he did with Ms. Levario.

13

3646.

14

prospective juror after observing, her evaluating her questions, I

15

mean her responses to the questions, her demeanor, the court is

16

convinced that she would be impaired, therefore, she’ll be

17

disqualified.”

18

and convincing evidence to rebut the presumption that this factual

19

finding was incorrect.

20

Id. at RT

The trial court concluded that “after listening to the

Id.

Again, Petitioner has failed to offer clear

Even if this claim were not moot, Petitioner has failed to

21

show that the California Supreme Court’s denial of it was

22

unreasonable or that the disqualification of these two potential

23

jurors prejudiced him.

24

state court’s decision was “contrary to, or involved an

25

unreasonable application of, clearly established Federal law” or

26

that it “resulted in a decision that was based on an unreasonable

27

determination of the facts in light of the evidence presented” to

28

it.

Thus, Petitioner has not shown that the

28 U.S.C. § 2254(d).

Accordingly, this claim is DENIED.
137

1

V.

2
3

Claim forty-four: ineffective assistance of
appellate counsel

Petitioner asserts six grounds for habeas relief due to

4

ineffective assistance of appellate counsel.

5

discovery or an evidentiary hearing on this claim.

6

He does not request

The Due Process Clause of the Fourteenth Amendment guarantees

7

a criminal defendant the effective assistance of counsel on his

8

first appeal as of right.

9

(1985).

Evitts v. Lucey, 469 U.S. 387, 391-405

Claims of ineffective assistance of appellate counsel are

United States District Court
For the Northern District of California

10

reviewed according to the standard set out in Strickland, 466 U.S.

11

at 668.

12

v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010); Miller v. Keeney,

13

882 F.2d 1428, 1433 (9th Cir. 1989).

14

See Smith v. Robbins, 528 U.S. 259, 285 (2000); Moormann

First, the petitioner must show that counsel’s performance

15

was objectively unreasonable, which in the appellate context

16

requires the petitioner to demonstrate that counsel acted

17

unreasonably in failing to discover and brief a non-frivolous

18

issue.

19

Second, the petitioner must show prejudice, which in this context

20

means that the petitioner must demonstrate a reasonable

21

probability that, but for appellate counsel’s failure to raise the

22

issue, the petitioner would have prevailed in his appeal.

23

Smith, 528 U.S. at 285-86; Moormann, 628 F.3d at 1106.

24

See Smith, 528 U.S. at 285; Moormann, 628 F.3d at 1106.

See

Appellate counsel does not have a constitutional duty to

25

raise every non-frivolous issue requested by the defendant.

26

Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart,

27

129 F.3d 1027, 1045 (9th Cir. 1997); Miller, 882 F.2d at 1434

28

n.10.

See

Weeding out weaker issues is widely recognized as one of
138

1

the hallmarks of effective appellate advocacy.

2

F.2d at 1434.

3

above an objective standard of competence and cause their clients

4

no prejudice for the same reason: because they declined to raise a

5

weak issue.

6

See Miller, 882

Therefore, appellate counsel will frequently act

Id.

Furthermore, as discussed above, under AEDPA the Court must

7

afford the state court’s determination of an ineffective

8

assistance of counsel claim additional deference.

9

not merely if counsel was ineffective under Strickland, but

The question is

United States District Court
For the Northern District of California

10

whether the state court’s decision was unreasonable.

11

Harrington, 562 U.S. at 101.

12
13

1.

See

Failure to advance all meritorious legal bases

Petitioner alleges that appellate counsel failed to “advance

14

all meritorious legal bases for issues presented on petitioner’s

15

behalf on direct appeal.”

16

incorporates claims six, twelve, thirteen, nineteen, twenty,

17

thirty, thirty-two, thirty-six, thirty-nine, forty and forty-three

18

in this allegation.9

19

counsel raised each of these issues during their representation”

20

of him.

21

provide the legal bases articulated [in this petition] in support

22

of those claims.”

23
24

Am. Pet. at 295.

Petitioner

Petitioner concedes: “State appellate

However, Petitioner alleges, appellate counsel “failed to

Id.

As discussed above, “appellate counsel does not have a
constitutional duty to raise every nonfrivolous issue.”

Miller,

25
26
27
28

9

Many of these claims were already denied as moot because
they were related to the imposition of Petitioner's death
sentence, namely claims six, thirty, thirty-two, thirty-six,
thirty-nine, forty and forty-three.
139

1

882 F.2d at 1434 n.10.

2

were raised.

3

ineffective assistance of appellate counsel claim on deficient

4

briefing of “all meritorious legal bases,” Petitioner fails to

5

show that appellate counsel acted unreasonably in failing to

6

advance every meritorious legal basis for the claims in his state

7

appeal.

8

meritorious; thus appellate counsel was not deficient in failing

9

to assert all non-frivolous issues or bases for them.

Here, Petitioner admits that these issues

While Petitioner argues that he rests his

As discussed above, none of Petitioner’s claims is

United States District Court
For the Northern District of California

10

Furthermore, Petitioner fails to demonstrate prejudice.

11

Apart from conclusory statements that “had appellate counsel

12

raised these issues on direct appeal” -– and Petitioner admits

13

that appellate counsel did raise them –- “the state court would

14

have granted relief.”

15

Petitioner concedes that the California Supreme Court addressed

16

each of his issues and found that they lacked merit.

17

Petitioner could establish that some briefing errors occurred, he

18

does not establish that he was prejudiced by the alleged errors.

19

Likewise, given that Petitioner fails to establish that his

Am. Pet. at 295.

To the contrary,

Even if

20

appellate counsel was deficient under Strickland for these alleged

21

errors, he cannot establish that the state court was unreasonable

22

in its application of Strickland.

23

cannot support the petition’s claim for relief on the ground of

24

ineffective assistance of appellate counsel.

25

//

26

//

27

//

28

//

Accordingly, these allegations

140

1

2.

2

Failure to raise meritorious issues, causing
procedural default

3

Petitioner claims appellate counsel was ineffective for

4

failing to raise certain issues on appeal, leading to those claims

5

being procedurally defaulted for purposes of state habeas review.

6

Petitioner argues that, due to the failure of appellate

7

counsel to raise them, claims nine, ten, twenty and twenty-one

8

were not “properly presented” on direct appeal.10

9

ten are ineffective assistance of trial counsel claims.

Claims nine and
Claim

United States District Court
For the Northern District of California

10

twenty argues that the prosecution withheld material evidence.

11

Claim twenty-one argues that the prosecution used false and/or

12

perjured testimony in its case against him.

13

these claims was procedurally defaulted based on failure to raise

14

it on direct appeal.

15

these claims to be procedurally defaulted because they were

16

untimely when presented to the state court.

17

However, none of

Rather, as stated above, this Court found

Under Martinez, 132 S. Ct. 1309, an exception to this

18

procedural default rule may permit relief where appellate counsel

19

failed to raise on appeal claims of ineffective assistance of

20

trial counsel.

21

defaulted claim of ineffective assistance of trial counsel where a

22

petitioner could not have raised the claim on direct review and

23

was afforded no counsel or only ineffective counsel on state

24

collateral review.

25

expanded the Martinez exception in Trevino v. Thaler, applying it

Cause may exist for excusing a procedurally

Id. at 1315.

The Supreme Court reaffirmed and

26
10

27
28

Petitioner also included claims seven and eight in this
allegation. Those claims addressed Petitioner’s death sentence
and, thus, are moot.
141

1

to a petitioner in any state whose “procedural framework, by

2

reason of its design and operation, makes it highly unlikely in a

3

typical case that a defendant will have a meaningful opportunity

4

to raise the claim of ineffective assistance of trial counsel on

5

direct appeal.”

6

exception arguably applies to California under the rationale of

7

Trevino because California law provides that “except in those rare

8

instances where there is no conceivable tactical purpose for

9

counsel’s actions, claims of ineffective assistance of counsel

133 S. Ct. 1911, 1918-21 (2013).

The Martinez

United States District Court
For the Northern District of California

10

should be raised on habeas corpus, not on direct appeal.”

11

v. Lopez, 42 Cal. 4th 960, 972 (2008).

12

People

The Martinez exception does not apply because it applies to

13

default based on failure to raise an issue on appeal, rather than

14

untimely presentation to the state court.

15

exception applied, Petitioner would be able to overcome the

16

procedural default of only claims nine and ten because they allege

17

ineffective assistance of trial counsel.

18

if claims nine and ten were not procedurally defaulted, they are

19

without merit.

20

to raise meritless claims.

21

Even if the Martinez

As discussed above, even

Appellate counsel was not ineffective for failing

Accordingly, even if appellate counsel caused the procedural

22

default, Petitioner has not shown that appellate counsel was in

23

error or that caused any error was prejudicial.

24

these allegations cannot support the petition’s claim for relief

25

on the ground of ineffective assistance of appellate counsel.

26

//

27

//

28

//
142

Accordingly,

1

3.

2
3

Failure to raise trial counsel’s failure to
impeach

Petitioner next argues that appellate counsel unreasonably

4

failed to raise an ineffective assistance of trial counsel claim

5

for failure to impeach four prosecution witnesses at trial.

6

this claim, he incorporates the allegations included in claim

7

nine.

8

histories, the jury would have “realized that each of these

9

witnesses was highly impeachable, based on their criminal records

United States District Court
For the Northern District of California

10
11

In

He argues that, given the witnesses’ extensive criminal

alone.”

Am. Pet. at 295.

As discussed above, to determine whether appellate counsel’s

12

failure to raise a claim of ineffective assistance of trial

13

counsel on this ground was objectively unreasonable and

14

prejudicial, this Court must first assess the merits of the

15

underlying claim that trial counsel provided constitutionally

16

deficient performance.

17

counsel’s performance was not objectively unreasonable or did not

18

prejudice Petitioner, then appellate counsel did not act

19

unreasonably in failing to raise a meritless claim of ineffective

20

assistance of trial counsel, and Petitioner was not prejudiced by

21

appellate counsel’s omission.

22

Moormann, 628 F.3d at 1106-07.

If trial

Id.

As discussed above, claim nine lacks merit.

Petitioner fails

23

to establish that an ineffective assistance of trial counsel claim

24

on this ground was meritorious.

25

even if the jury had been made aware of these witnesses’ criminal

26

histories, there is no strong inference that the jury would have

27

found their testimony to be untruthful.

28

weeding out of weaker issues is widely recognized as one of the

On its face, the claim is weak:

143

As stated above, the

1

hallmarks of effective appellate advocacy.

2

at 1434.

3

counsel was unreasonable not to raise this issue, nor that he was

4

prejudiced by this alleged deficiency.

5

See Miller, 882 F.2d

Thus, Petitioner does not establish that appellate

Likewise, given that Petitioner fails to establish that his

6

appellate counsel was deficient under Strickland for these alleged

7

errors, he cannot establish that the state court was unreasonable

8

in its application of Strickland.

9

cannot support the petition’s claim of ineffective assistance of

United States District Court
For the Northern District of California

10

Accordingly, these allegations

appellate counsel.

11

4.

Failure to request judicial notice

12

Petitioner argues that appellate counsel was deficient for

13

failing to request that the state court take judicial notice of

14

the entire reporter’s and clerk’s transcripts in People v. Juan

15

Garcia, San Mateo County Superior Court No. C-20836, the trial of

16

his co-perpetrator.

17

Petitioner fails to establish prejudice.

Even if appellate

18

counsel had requested that the state court take judicial notice of

19

the transcripts, Petitioner has not established that the state

20

court would have granted his request.

21

establish that anything in the transcripts would have led to a

22

more favorable outcome, such that his conviction would have been

23

reversed.

24

unreasonable for failing to make this request.

25

Furthermore, he does not

Hence, he fails to show that appellate counsel was

Given that Petitioner fails to establish that his appellate

26

counsel was deficient under Strickland for this alleged error, he

27

cannot establish that the state court was unreasonable in its

28

application of Strickland.

Accordingly, this allegation cannot
144

1

support the petition’s claim of ineffective assistance of

2

appellate counsel.

3

5.

4
5

Failure to augment the record with jury
questionnaires

Petitioner argues that appellate counsel failed to augment

6

the record with the juror questionnaires and failed to raise the

7

issue of unconstitutional jury composition as presented in claim

8

five.

9

refers.

It is not clear to what juror questionnaires Petitioner
Exhibits 174 through 183 include questionnaires of all

United States District Court
For the Northern District of California

10

potential jurors who filled out questionnaires specific to his

11

trial.

12

Thus, these questionnaires are part of the record.

In claim five, Petitioner argues among other things that he

13

was denied a fair and impartial jury pool composed of a cross

14

section of the community.

15

is without merit.

16

counsel was deficient for failure to augment the record, or that

17

he was prejudiced by any such failure.

18

allegation cannot support the petition’s claim of ineffective

19

assistance of appellate counsel.

20

6.

21
22

As discussed above, however, this claim

Thus, Petitioner cannot show that appellate

Accordingly, this

Failure to raise trial court’s error in
denying the motion for a separate penalty
phase jury

Petitioner argues that appellate counsel unreasonably failed

23

to assign as error on appeal “the trial court’s improper denial of

24

petitioner’s motion for a separate penalty phase jury, or to

25

question the jury after the guilt phase, and the constitutionally

26

inadequate and misleading nature of the voir dire at petitioner’s

27

trial.”

28

ruling deprived [him] of his statutory right to two juries under

Am. Pet. at 296-297.

He claims that the “trial court’s

145

1

California Penal Code section 190.4(c).”

2

is moot except to the extent it attacks the voir dire at his

3

trial.

Id. at 296.

This claim

4

California Penal Code section 190.4, subdivision (c) provides

5

that the same jury shall consider the guilt and the penalty phases

6

of a capital trial absent good cause for discharging the guilt

7

phase jury.

8

is a “‘long-standing legislative preference for a single jury to

9

determine both guilt and penalty.’”

The California Supreme Court has stated that “there

People v. Catlin, 26 Cal. 4th

United States District Court
For the Northern District of California

10

81, 114 (2001) (citing People v. Lucas, 12 Cal. 4th 415, 483

11

(1995)).

12

defense counsel ‘to voir dire in one way for the guilt phase and a

13

different way for the penalty phase,’ . . . ‘does not constitute

14

"good cause" for deviating from the clear legislative mandate.’”

15

Id. (citing same).

16

The court explained further that “the ‘mere desire’ of

Petitioner argues that his defense counsel was “forced to

17

elect between engaging in the necessary voir dire with the

18

attendant contamination of jurors as to the guilt phase evidence,

19

or foregoing that voir dire to prevent prejudice to petitioner’s

20

guilt phase defense that he was not present.”

21

However, this is precisely the type of argument that the

22

California Supreme Court has stated is not “good cause” for having

23

a separate jury.

24

this situation “constitutes a common problem arising out of

25

inconsistent defense strategies at the guilt and penalty phases of

26

trial, yet such inconsistencies do not, without more, constitute

27

good cause for empanelling separate guilt and penalty phase

28

juries”).

Am. Pet. at 44.

See Catlin, 26 Cal. 4th at 115 (explaining that

146

1

Accordingly, Petitioner cannot show that appellate counsel

2

was deficient for failure to raise this issue on direct appeal, or

3

that he was prejudiced by that decision.

4

cannot support the petition’s claim of ineffective assistance of

5

appellate counsel.

6

7.

7
8

Thus, this allegation

Failure to raise trial court’s error in
denying Petitioner’s right to confrontation

Petitioner argues that appellate counsel unreasonably failed
to assign as error on appeal “trial court rulings which deprived

10
United States District Court
For the Northern District of California

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petitioner of his right to confrontation and cross examination,

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compulsory process, and the right to effective assistance of

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counsel and to which trial counsel objected.”

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Petitioner contends:

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Am. Pet. at 297.

These include the trial court’s rulings preventing trial
counsel from cross-examining Cynthia Ontiveros with respect
to specific occasions on which she lied to law enforcement;
from eliciting testimony from Zavala about the arguments he
had with his brother concerning drugs; from questioning
Zavala about the drug business; and, from cross-examining
Zavala on the nature and quantity of drugs used by Zavala and
Barragan that day.

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Id.

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for failing to properly raise these matters with the trial court,

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appellate counsel was required to raise this facet of the claim as

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well.”

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He also claims, "To the extent trial counsel was ineffective

Id.

Petitioner offers only a conclusory statement that, had

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appellate counsel raised these issues, the California Supreme

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Court would have granted relief.

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support a claim of ineffective assistance of appellate counsel.

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Petitioner fails to state any basis for appellate counsel raising

This statement is inadequate to

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these issues, or how he was prejudiced by appellate counsel’s

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failure to do so.

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Given that Petitioner fails to establish that his appellate

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counsel was deficient under Strickland for these alleged errors,

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he cannot establish that the state court was unreasonable in its

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application of Strickland.

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support the petition’s claim of ineffective assistance of

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appellate counsel.

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Accordingly, this allegation cannot

The record supports the state court’s conclusion that

United States District Court
For the Northern District of California

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appellate counsel was not ineffective for the above decisions.

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Thus, Petitioner has not shown that the state court’s decision was

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“contrary to, or involved an unreasonable application of, clearly

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established Federal law” or that it “resulted in a decision that

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was based on an unreasonable determination of the facts in light

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of the evidence presented” to it.

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petition’s claim for relief on the ground that appellate counsel

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was ineffective is DENIED.

28 U.S.C. § 2254(d).

The

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W.

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Petitioner argues that, given all the alleged constitutional

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violations discussed above, the cumulative effect deprived him of

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a fair trial and rendered his convictions unreliable.

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Claim forty-seven: cumulative error

As discussed, all of Petitioner’s claims fail.

Accordingly,

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the petition’s claim for relief on the ground of cumulative error

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is DENIED.

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CONCLUSION

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For the reasons stated above, the petition for a writ of

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habeas corpus is DENIED.

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DENIED, and Petitioner’s motion for an evidentiary hearing

Petitioner’s discovery requests are

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1

is DENIED.

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as to claim one, claim three and claim nine relating to

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Petitioner's competency, as well as claim four relating to Juror

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Langston.

The Clerk of the Court shall enter judgment and close

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the file.

The parties shall bear their own costs.

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Petitioner is GRANTED a certificate of appealability

IT IS SO ORDERED.

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Dated: September 6, 2016
CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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