Hoyos v. Wong

Filing 143

ORDER Denying Respondents request to dismiss Claims 14-16 on the basis of state procedural bars, Denying Petitioners motion for an evidentiary hearing on Claims 13-23 and 25, and Denying Petitioners request for relief on the merits of all claims in the Second Amended Petition for a Writ of Habeas Corpus. In the final order, the Court will Grant a COA on Claims 1, 5, 13, 14, 22, 23, and 25. Signed by Judge M. James Lorenz on 10/4/2017.(sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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Case No.: 09cv0388 L (NLS)

JAIME HOYOS,

DEATH PENALTY CASE

v.

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ORDER:

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(1)
DENYING
RESPONDENT’S
REQUEST TO DISMISS CLAIMS
14-16 ON THE BASIS OF STATE
PROCEDURAL BARS

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RON DAVIS, Warden of San Quentin
State Prison,

(2)
DENYING
PETITIONER’S
REQUEST FOR AN EVIDENTIARY
HEARING ON CLAIMS 13-23 AND 25

Respondent.

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(3) DENYING SECOND AMENDED
PETITION FOR A WRIT OF
HABEAS CORPUS

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On August 28, 2014, Petitioner filed a brief regarding procedural issues, including

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requesting an evidentiary hearing, and addressing the merits of the claims in the Second

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Amended Petition [“SAP”], the operative petition in this habeas action under 28 U.S.C. §

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2254. (ECF No. 104.) Petitioner asserts that he “is entitled to an evidentiary hearing on
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his Brady claims, his IAC [ineffective assistance of counsel] claims, and his Eighth

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Amendment mental retardation claim,” listed as Claims 13-23 and 25 of the SAP. (Id. at

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55.) On October 23, 2014, Respondent filed an Opposition/Response, and on March 6,

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2015, Petitioner filed a Reply. (ECF Nos. 106, 114.) The Court held oral arguments on

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January 26, 2017. In response to the Court’s subsequent request for information regarding

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matters discussed at oral arguments (see ECF No. 120), Petitioner filed a Response on May

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12, 2017 and a Notice of Lodgment on June 30, 2017. (ECF Nos. 135, 140.) On July 6,

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2017, Respondent filed a Response to Petitioner’s filings. (ECF No. 141.)

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For the following reasons, and based on the arguments presented in the pleadings

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and at oral argument, the Court DENIES Respondent’s request to dismiss Claim 14-16 on

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the basis of state procedural bars, DENIES Petitioner’s request for an evidentiary hearing

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on Claims 13-23 and 25, and DENIES habeas relief on all claims in the Second Amended

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Petition.

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I.

PROCEDURAL HISTORY

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By an Information filed on August 25, 1992, Petitioner Jaime Hoyos and co-

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defendant Emilio Alvarado were charged with two counts of first degree murder and one

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count of attempted first degree murder in the deaths of Daniel and Mary Magoon and the

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wounding of their 3 year old son J., and three special circumstances. (Clerk’s Transcript

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[“CT”] 26-31.) Both Petitioner and Alvarado1 were also charged with conspiracy to

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commit robbery, first degree robbery, residential burglary, grand theft of a firearm, and

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transporting more than 28.5 grams of marijuana. (CT 31-34.) Petitioner and Alvarado

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were tried together.

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After a guilt phase trial, Petitioner and Alvarado were convicted on two counts of

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first degree murder pursuant to California Penal Code § 187 in the deaths of Daniel and

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Alvarado alone was charged with three additional crimes, which included
possession of a firearm by possessor of controlled substance, possession of a controlled
substance, and possession of a firearm by a felon. (CT 34-35.)
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Mary Magoon. (CT 3554-55, 3559-60.) They were acquitted of attempted murder but

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convicted of the lesser included offense of assault with a firearm pursuant to Cal. Penal

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Code §§ 664, 187, and 245 (a)(2) in the wounding of J. (CT 3556-57, 3561.) Petitioner

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and Alvarado were also convicted of conspiracy to commit robbery pursuant to Cal. Penal

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Code §§ 211 and 182.1, first degree robbery pursuant to Cal. Penal Code § 211, burglary

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pursuant to Cal. Penal Code § 459, grand theft of a firearm pursuant to Cal. Penal Code

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§ 487.3, and transporting more than 28.5 grams of marijuana pursuant to California Health

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and Safety Code § 11360(a). (CT 3554-64.)

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The jury found that Petitioner and Alvarado used a firearm in the commission of the

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murders pursuant to Cal. Penal Code § 12022.5. (CT 3555, 3559-60.) The jury also found

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true the three special circumstance allegations- that the murder was committed during the

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course of a robbery and burglary pursuant to Cal. Penal Code § 190.2(a)(17)(A) and (G),

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and multiple murder pursuant to Cal. Penal Code § 190.2(a)(3). (CT 3555-56, 3559-60.)

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Before the start of the penalty phase proceedings, the trial court denied Petitioner’s motion

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for a new trial, but granted Alvarado’s.2 (CT 3574-75.)

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After the penalty phase, the jury returned a verdict of life without the possibility of

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parole in the murder of Daniel Magoon and a verdict of death in the murder of Mary

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Magoon. (CT 3583-84.) On July 11, 1994, the trial court denied Petitioner’s motions for

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a new trial and for modification of the verdict, and sentenced him to death. (CT 3588-91.)

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On automatic appeal [“direct appeal”] of this conviction and judgment to the

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California Supreme Court, Petitioner filed an opening brief on October 17, 2003, raising

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sixteen (16) claims for relief, and a reply brief on March 16, 2006. (Lodgment Nos. 100,

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102.) The California Supreme Court affirmed Petitioner’s conviction and sentence in a

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decision issued on July 23, 2007. People v. Hoyos, 41 Cal. 4th 872 (2007). On February

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Alvarado later pled guilty and was sentenced to life in prison without the possibility
of parole.
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19, 2008, the Supreme Court of the United States denied his petition for a writ of certiorari.

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Hoyos v. California, 552 U.S. 1201 (2008.)

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On September 11, 2006, Petitioner filed a habeas petition and supporting exhibits

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with the California Supreme Court, raising eighteen (18) claims for relief, and a reply brief

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on July 11, 2008. (Lodgment Nos. 106-15, 117.) The petition was denied on February 18,

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2009, without an evidentiary hearing. (Lodgment No. 118.)

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On February 26, 2009, Petitioner filed a motion to appoint counsel in this Court.

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(ECF No. 1.) On October 2, 2009, the Court appointed counsel. (ECF No. 12.) On January

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15, 2010, Petitioner filed a motion for equitable tolling. (ECF No. 30.) After briefing and

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argument, the Court granted the motion for equitable tolling on February 16, 2010,

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extending the deadline to file the petition until September 1, 2010. (ECF No. 36.) On

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February 17, 2010, Petitioner filed a petition for writ of habeas corpus, raising twenty-eight

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(28) claims for relief, and on September 1, 2010, Petitioner filed an amended petition for a

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writ of habeas corpus, raising the same 28 claims. (ECF Nos. 37, 54.) After hearing and

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adjudicating issues of exhaustion and stay and abeyance, the Court stayed the federal

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petition and held the case in abeyance for purposes of exhaustion. (ECF No. 72.)

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On February 3, 2011 and February 9, 2011, Petitioner filed a habeas petition and

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supporting exhibits with the California Supreme Court, raising two claims for relief, and a

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reply brief on May 25, 2011. (Lodgment Nos. 120-21, 123.) On October 30, 2013, the

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California Supreme Court denied Petitioner’s state exhaustion petition. (Lodgment No.

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124.) On November 29, 2013, Petitioner filed his Second Amended Petition [“SAP”] in

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this Court, raising the same 28 claims presented in the prior federal petitions. (ECF Nos.

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86-88.) On March 25, 2014, Respondent filed an Amended Answer [“Ans.”] and an

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attached Memorandum of Points and Authorities [“Ans. Mem.”]. (ECF No. 94.) On May

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27, 2014, the Court issued an order setting forth deadlines for briefing procedural default,

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merits and any motions for evidentiary development. (ECF No. 99.) On August 28, 2014,

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Petitioner filed an Opening Brief [“Pet. Brief”] regarding the merits, procedural issues and

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an evidentiary hearing. (ECF No. 104.) On October 23, 2014, Respondent filed an
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Opposition/Response [“Resp. Opp.”], and on March 6, 2015, Petitioner filed a Reply

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[“Reply”]. (ECF Nos. 106, 114.)

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II. TRIAL PROCEEDINGS

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The Court refers the parties to the statement of evidence issued by the California

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Supreme Court in Hoyos, 41 Cal. 4th at 879-89. The California Supreme Court’s factual

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findings are presumptively reasonable and entitled to deference in these proceedings. See

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Sumner v. Mata, 449 U.S. 539, 545-47 (1981).

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To provide context to the Court’s discussion of the claims in the Second Amended

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Petition, particularly the claims asserting ineffective assistance of counsel, restated below

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is the California Supreme Court’s summary of evidence and testimony presented during

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the guilt and penalty phase proceedings.

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A. Guilt Phase

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1. The Prosecution’s Case

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a. Evening of May 26, 1992
On May 26, 1992, Daniel Magoon, his wife Mary, and their children,
D. (age seven) and J. (age three), were living on Steele Canyon Road in the
Jamul area of San Diego County. Daniel Magoon operated a large-scale
marijuana distribution business out of the garage of their house. He also kept
weapons and money in the garage. A security gate around the house was
usually closed.

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Jimmy Johnson was a long-time friend and occasional partner of Daniel
Magoon in the marijuana trade. In 1974, both Daniel Magoon and Johnson
had pleaded guilty to intent to distribute a controlled substance. Johnson
testified that he was not involved in dealing marijuana with Daniel Magoon
at the time of Magoon’s death.

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Around 8:30 p.m., Daniel Magoon visited Johnson at Johnson’s
residence. Magoon told Johnson that he was expecting some people to come
over to the Magoon house that evening, and then left Johnson’s residence.
That day, Johnson had seen Magoon with a stack of money, possibly as much
as $250,000. Johnson never heard from Daniel Magoon again.

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Around 7:45 p.m., the Magoons’ next-door neighbor, Mary Jane Lange,
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entered her bedroom to read. Her bedroom windows were open. About 40
minutes later, Lange heard Daniel Magoon’s voice and at least one other male
voice. She heard Magoon say something like, “Oh, come on.” Sometime
between 10:30 p.m. and 11:30 p.m., Mrs. Lange heard what sounded like four
firecrackers, in rapid succession, that came from the direction of the Magoon
residence. Between five and 15 minutes later, Mrs. Lange heard a series of
four to seven more firecracker noises in rapid succession, again coming from
the direction of the Magoon house. Mrs. Lange’s live-in son-in-law, Kenneth
Wall, heard what sounded like four gunshots sometime between 11:00 p.m.
and 11:30 p.m.
b. Auto Stop and Arrest of Defendants

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About 12:20 a.m., on May 27, 1992, El Cajon Police Officer William
Pettus was on patrol when he noticed the rear license plate light was out on a
passing Toyota Corolla. Officer Pettus stopped the Corolla, exited his patrol
vehicle, and approached the car. He saw Alvarado in the driver’s seat and
defendant in the front passenger seat. Alvarado was shaking; he appeared
nervous and was sweating, although the evening temperature was cool.
Officer Pettus asked Alvarado for his driver’s license and vehicle registration.
Alvarado handed him a California Identification Card with the name “Ralph
Varela.” Alvarado told the officer that defendant had a driver’s license, and
the officer asked both Alvarado and defendant for defendant’s license, but
defendant did not produce one. After returning to his patrol car and
determining that there was no record that either defendant or “Varela” had a
valid driver’s license, the officer began to write a citation and called for police
back-up.

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El Cajon Police Officer Christopher Pietrzak arrived at the scene
shortly thereafter. Officer Pettus ordered defendant and Alvarado out of the
car. Officer Pietrzak watched defendant and Alvarado, while Officer Pettus
searched the Corolla. Officer Pettus searched the driver’s side and found a
nine-millimeter gun magazine (containing 12 rounds), and two large caliber
rounds. On the passenger side, under the seat, he found a loaded ninemillimeter, semi-automatic, Egyptian-manufactured Helwan pistol. It had one
round in the chamber and eight rounds in its magazine. The Helwan pistol
matched a gun box later found in the victims’ house for a gun that Daniel
Magoon owned.
Officer Pettus then searched the back seat of the car, where he found
phone bills, rental agency forms, and a license plate. He searched the trunk
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and found approximately 28 pounds of marijuana, some of which was frozen,
both in brick form and inside plastic baggies contained in boxes. A latent
fingerprint removed from a piece of tape used to wrap the marijuana was later
identified as Daniel Magoon’s.
Officer Pettus arrested Alvarado and defendant. The officer conducted
a pat-down search of Alvarado before placing him in a patrol car. He found
an empty nine-millimeter casing in Alvarado’s left front pants pocket. After
placing Alvarado in a holding cell, the officer checked the back seat of the
patrol car and found two nine-millimeter cartridges. A strip search of
Alvarado yielded a rock of methamphetamine.
At the police station, Officer Pietrzak searched defendant and found
$1,033 in various denominations in his right rear pants pocket, and three $1
dollar bills in a front pocket. He also found defendant’s Mexican driver’s
license.
c. Discovery of the Murders

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On May 27, 1992, about 7:00 a.m., seven-year-old D. woke up in his
home. He saw his three-year-old brother, J., sleeping on a futon in the living
room, woke him up, and asked him if he was okay. J. answered “yeah,” and
fell back to sleep. D., however, saw some blood on J. He then found the body
of his mother, Mary Magoon, in the bathroom. He found his father’s body in
the kitchen by the microwave. D. attempted to use the telephone to call 911
or the police, but was unsuccessful. He left to go to his best friend’s house
down the street.

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At approximately 7:30 a.m., Patricia Bagnell was jogging through a
field behind a 7–Eleven store in Jamul. She encountered D., barefoot, walking
quickly down the side of a dirt road. D. looked pale and was crying. She said
hello, and asked him why he was crying. He said that his parents were dead
and there was a lot of blood in his house. She walked with him towards the
residence of his best friend, where they encountered Richard Brewer. Brewer
asked if they needed help. Bagnell told Brewer that D. had told her that his
parents were dead. Brewer asked D. where he lived, and the three of them
drove to D.’s house. When they arrived at the Magoon residence, both security
gates were open and they pulled into the driveway.
The front door was open, and Brewer entered the residence while the
other two stayed in his truck. The house was a shambles; everything was torn
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up. Brewer saw a little boy on the living room floor close to two rifles and a
gun with a silencer. Brewer shook the little boy but got no response. Brewer
got nervous and left to call for help, leaving the little boy where he was.
Brewer, D., and Bagnell went to Bagnell’s house nearby and called 911.
Firefighters arrived at the Magoon residence about 8:00 a.m. Brewer
told Fire Captain Jeffrey Nelson that there was a bleeding child in the living
room, and that there might be more people down the hallway. After making
sure that police deputies were on their way, Captain Nelson entered the house
through the front door. He noticed a “Mac–10” style submachine gun on the
carpet just beyond the entry tile, later identified as an Ingram, semiautomatic
.45–caliber pistol with a barrel extension. As he walked into the entryway, he
saw J. lying on a futon. As he moved toward the child, he saw two rifles that
were lying parallel to each other, later identified as a Ruger Mini–14 semiautomatic .223–caliber rifle, and a .177–caliber air rifle.

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J.’s hair was matted and wet from blood. The upper part of his T-shirt
was covered with blood, which had spilled down onto his diaper. When
Captain Nelson attempted to feel for a pulse, J. woke up and looked very
scared. Captain Nelson then carried him outside to receive medical attention.
J. had a laceration to the back of his head, and a six-to-eight-inch-long bruise
in the left shoulder blade area. His head laceration was later determined to be
a bullet wound.
Police deputies and other investigators went through the house. Daniel
Magoon was found dead, lying on the floor in the kitchen area. Mary Magoon
was also found dead, lying on her right side with her shoulder and head at the
threshold of the hallway bathroom doorway. There was no evidence of forced
entry to the Magoon residence.
d. Crime Scene Evidence
On-site investigation and later testing showed that multiple weapons
had been fired in various rooms of the house, and that the house had been
ransacked. No percipient witnesses testified about what happened in the house
when the Magoons were shot. The prosecution relied on detailed crime scene
evidence to establish its case.
(1) Entryway and Living Room

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Investigators found three guns in the entryway and living room: a .45–caliber
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semiautomatic pistol, a semiautomatic .233–caliber rifle, and a .177–caliber
air rifle. The Ingram, Mac 10–style .45–caliber semiautomatic pistol found at
the entryway had a barrel extension (that resembled a silencer) and a
magazine, but contained no ammunition. It had been improperly reassembled,
and therefore could not fire. The Ruger Mini–14 semiautomatic .223–caliber
rifle did not have a magazine, and had no rounds in the chamber. It had been
fired before, but the testifying criminologist could not determine how
recently. Blood on the trigger guard was tested and found to be consistent with
defendant’s blood type. The .177–caliber air rifle was operable and had been
fired before, but it could not be determined how recently. Its barrel was bent
in a downward direction, and had hair and blood on it. Blood on the trigger
guard and forearm stock was tested and found to be consistent with
defendant’s blood. Blood on the barrel was consistent with Mary Magoon’s
blood.
On the floor was a woman’s checkbook and wallet that had been rifled
through, but contained a few dollars. There was also loose marijuana on the
floor. One unexpended nine-millimeter cartridge was on the living room floor
next to the fireplace.
(2) Kitchen

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On top of the kitchen island, investigators found a full 7–Eleven “Big
Gulp” cup with Alvarado’s fingerprints.FN4 Daniel Magoon’s face and upper
body were covered with a blanket. His right hand held a clump of hair, later
identified as J.’s. There were several nine-millimeter and .22–caliber casings
on the floor near Daniel Magoon’s body, and scattered across the kitchen
counter area. A wallet containing Daniel Magoon’s driver’s license, business
and credit cards, but no money, was on the floor.
FN4. Marbell Lopez testified that there was a 7–Eleven store near the
Magoon residence, and that she had driven defendant home from that 7–
Eleven store at least once two months before the murders.

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(3) Hallway Bathroom

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One expended nine-millimeter bullet was found under Mary Magoon’s
right forearm. A second nine-millimeter bullet fell from her body as she was
lifted onto a gurney. She held a clump of hair in her right hand, later identified
as her own. She also held a clump of hair in her left hand, later identified as
J.’s, and a baby pacifier. A baby blanket was lying between her legs. She was

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wearing pajamas.
There were three nine-millimeter casings in the hallway bathroom. The
hallway bathroom door had two bullet holes at the base. The door had another
bullet hole, and a blood spatter about five and one-half feet off the ground,
which was consistent with either blunt force trauma or a gunshot. The blood
on the bathroom door was consistent with that of Mary Magoon’s blood.
The hallway carpet contained a bullet hole. A nine-millimeter casing
was lying on the same carpet. There was blood on the wall across from the
bathroom hallway about two and one-half feet off the ground, which was
identified as a swiped application of blood onto the surface. This blood was
consistent with the blood of either Daniel Magoon or J. There was fresh vomit
on the hallway carpet located between where Mary Magoon’s body was found
and the kitchen.

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(4) Master Bedroom

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Investigators found a nine-millimeter casing on the carpet at the end of
the hallway or entrance to the master bedroom. The master bedroom door was
open. The outside of the door had a bullet hole about three feet up from the
floor with some black soot around it, indicating a close-range shot. Splinters
from the door were lying on the floor in that area. A nine-millimeter casing
was on a closet floor. An expended bullet that struck a chair was lying on the
floor near a gun safe. The gun safe had a combination lock and keys, both of
which had to be activated to open the safe door. Some keys were in the lock,
but the safe door was closed and locked.

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In the master bedroom bathroom there was a hidden storage
compartment behind a slip-out shelf. This storage compartment contained a
.30–caliber M–1 rifle. It also contained the gun box for the nine-millimeter
Helwan pistol that Daniel Magoon owned.
(5) Two Bedrooms off the Hallway
The Magoon residence had two bedrooms off the hallway. The door to
one of the bedrooms appeared to have been recently kicked open. The
doorjamb was cracked and splintered, and the striker plate and splinters were
lying on the hallway carpet.

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(6) Garage

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The garage contained marijuana debris, heat lamps, a fan, a trash
compactor with wood blocks to make bricks of marijuana, an electronic scale,
a vacuum sealer, and packaging material, such as plastic baggies, large
garbage and plastic bags, and rolls of clear tape. A federal drug enforcement
agent testifying as an expert witness stated that the equipment indicated that
the persons in control of the premises were involved in the sale of marijuana,
and that the type of marijuana and its packaging indicated Mexican origin.
Also in the garage were two freezers, a chest-type and an upright-type.FN5
Only the upright-type freezer was working, and it contained two packages
with large quantities of marijuana stems and seeds, as well a large amount of
marijuana debris at the bottom of the freezer. A roll-away tool chest contained
“pay and owe” sheets, which are used to record drug transactions.

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FN5. The federal drug enforcement agent testified that
marijuana dealers believe that storing marijuana in a freezer
retains its potency.
e. Autopsy and Medical Evidence

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(1) Daniel Magoon
Daniel Magoon died from four gunshot wounds. A bullet hole on his
left sleeve was surrounded by tiny marks from burning gunpowder, indicating
the shot came from an “intermediate” range of a few inches to a few feet. The
four shots probably were fired in rapid succession. It was unlikely he would
have been able to walk after being shot because both of his lungs and his aorta
had been perforated, and a bullet had penetrated his spinal cord; he probably
died within 30 seconds of being shot. The toxicology report on Daniel
Magoon showed 0.25 micrograms per milliliter of active cocaine present in
his blood.

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(2) Mary Magoon
Mary Magoon’s death was caused by gunshot wounds and blunt force
injuries. She suffered four gunshot wounds, including one from a bullet that
entered the back of her head, went through her brain, and exited her right
forehead. In addition, the medical examiner identified at least seven separate
blunt force injuries to her head. The severe injuries to her head alone could
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have caused her death. Her skull was severely fractured underneath the bruises
and lacerations. The blunt force injuries to her head occurred before she died.
These injuries could have been caused by the air rifle found on the living room
floor.
Mary Magoon also had injuries to the rest of her body, including four
separate injuries to her back. These injuries had imprints that were consistent
with the shape of the air rifle. She had multiple injuries to her arms and hands.
Her left ring finger was broken, and there were shallow cuts to her right wrist.
Some of these injuries were consistent with “defensive wounds,” which is a
natural inclination to move the arms up to deflect blows. A laceration on the
top of her foot contained embedded wood fragments, which the medical
examiner opined were from the wood chips the gunshot hole created in the
lower part of the hallway bathroom door. The toxicology report on Mary
Magoon showed 0.98 micrograms per milliliter of active cocaine present in
her blood.
(3) J.

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J. had two lacerations, an entry wound and an exit wound two inches
apart, to the back of his head, indicating a bullet caused the penetrating injury.
There was discoloration and burning of the skin which, the treating physician
opined, indicated the gun was close to the entry wound. A brain scan indicated
the brain had been injured, but J.’s wound was not life-threatening. An impact
to the brain can cause nausea and vomiting.
f. Blood and DNA Testing

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Defendant’s and Alvarado’s clothing was taken as evidence the night
they were arrested and later submitted for DNA testing, which revealed the
following. Defendant was the possible source of the bloodstains on his T-shirt
and of three separate bloodstains on his jeans. However, there was blood
consistent with that of Mary Magoon on the right thigh of defendant’s jeans.
There was also blood consistent with that of either Daniel Magoon or J. on the
left front pocket area of defendant’s jeans. No blood was found on Alvarado’s
clothing.

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g. Ballistic Evidence
A firearms expert testified that his analysis of the recovered bullets and
casings indicated that two nine-millimeter firearms were used at the crime
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scene. Daniel Magoon’s Helwan pistol, which was found in Alvarado’s car,
was the only nine-millimeter weapon recovered during the investigation, but
none of the recovered nine-millimeter bullets or casings was fired by the
Helwan. The Helwan had been fired at some point, but it was not possible to
determine when.
Expert testimony also revealed that two expended bullets recovered
from Daniel Magoon’s body during the autopsy, and the expended bullet
found on the master bedroom floor, were fired by one nine-millimeter
weapon, but the expert could not determine the particular model. Either of the
two nine-millimeter guns listed on the Department of Justice’s records as
registered to Alvarado (under the name “Ralph Varela”) was the type of gun
that could have fired the bullets, but there were approximately 75 other models
of nine-millimeter firearms available on the market that could have also fired
them.

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The two expended bullets recovered under Mary Magoon’s body were
fired from the same gun, which was probably an Uzi-manufactured firearm.
The Uzi magazine found in Alvarado’s car could have fit into either a pistol
or carbine Uzi weapon.
The firearms expert also testified that six of the nine-millimeter casings
recovered were fired by one gun; five of the casings were found at the crime
scene (including the three casings found near Daniel Magoon’s body) and one
casing was found in Alvarado’s pants pocket when he was arrested. The three
nine-millimeter casings found on the floor in the hallway bathroom (where
Mary Magoon was killed) were fired from a different gun.

19
20
21
22
23
24

An unexpended cartridge found on the living room floor, and two
unexpended cartridges found in the backseat of the patrol car where Alvarado
was sitting, had been cycled through the same firearm that fired the three ninemillimeter casings found on the hallway bathroom floor. In addition, five .22–
caliber casings were recovered at the crime scene, all of which were fired from
the same gun.
h. Defendant’s Dealings With Daniel Magoon

25
26
27
28

Several times between February and May of 1992, Johnson was present
at the Magoon residence, mostly in the garage, where Daniel Magoon, who
knew some Spanish, spoke with Spanish-speaking men. Johnson identified
defendant at trial as someone he had seen with Daniel Magoon at least once
13
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1
2
3
4

in the garage. Defendant had been at the garage in the company of one or two
other persons. Johnson did not recognize Alvarado. Defendant had also been
in the company of a woman named “Maria” Lopez.FN6 Johnson initially
thought Maria Lopez and defendant were married, and assumed defendant’s
name was “Jaime Lopez.” Johnson had identified defendant in a live line-up
as “Jamie Lopez.”

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

FN6. Maria Lopez was apparently a friend of Johnson’s
wife. Lopez appears to be the same person as “Marbell” Lopez,
who testified at trial.
Marbell Lopez met defendant in 1991, and had a close relationship with
him. In February 1992, she purchased a Ford Bronco for defendant with
money he gave her. She would occasionally drive defendant to the Magoon
residence, had been there with him four or five times, and had met Daniel
Magoon there once or twice while with defendant. She also met Alvarado
through defendant.
i. Alvarado’s Firearms Use
Thomas Lamb, who knew Alvarado, testified at trial. He stated that
once, before the murders, Alvarado had displayed a nine-millimeter handgun
to him.
Earlier on the day the murders were committed, about 3:00 p.m.,
defendant, Alvarado, Thomas Arroyo, and Jose “Chepe” Sanabia drove to a
gun shop in San Ysidro, California.FN7 Alvarado, using the name “Ralph
Varela,” purchased a Bersa, a .380–caliber gun manufactured in Argentina,
which is smaller than a nine-millimeter gun and is called a “nine-millimeter
short.” Alvarado did not take the gun with him that day, because there was a
15–day waiting period. Sanabia picked up the gun after the waiting period.
FN7. Sanabia identified defendant in a photographic
lineup but could not identify defendant in court.
On May 30, 1992, a detective searched Alvarado’s residence in El
Cajon. Underneath a drawer, the detective found an empty gun box for a
semiautomatic nine-millimeter pistol. The serial number on the gun box
matched the serial number of a weapon listed on the Department of Justice’s
records sold to “Ralph Varela” (Alvarado’s alias).

28
14
09cv0388 L (NLS)

1
2

2. The Defense Case
Neither codefendant testified.

3
4
5
6
7
8
9
10
11
12
13
14

a. Defendant’s Driver’s License
An official from the Mexican consulate testified that defendant had a
valid Mexican truck driver’s license.
b. Daniel Magoon’s Cocaine Use
As noted, toxicological specimens collected during the autopsy
indicated that Daniel Magoon had 0.25 micrograms per milliliter of active
cocaine in his blood. Stephen Stahl, M.D., a psychiatrist and
psychopharmacologist, testified that this level of cocaine would be consistent
with Daniel Magoon’s “being anywhere from mildly stimulated to being
overtly crazy.” Richard Whalley, a forensic scientist and toxicologist, testified
that, given this cocaine level, Daniel Magoon could have exhibited a range of
behavior, from being a little more than usually alert to paranoia.
c. Daniel Magoon’s Firearms Use

15
16
17
18
19
20

Arthur Coleman testified that on April 25, 1982, he was a deputy sheriff
in Imperial County, and he encountered Daniel Magoon driving a van.
Magoon appeared to be under the influence of alcohol, and Deputy Coleman
arrested him. During an inventory search of the van, Deputy Coleman
retrieved three loaded firearms, two unloaded firearms, approximately 1,000
rounds of ammunition, and two bundles of marijuana.
d. The Shooting of J.

21
22
23
24
25
26
27
28

Pathologist Arthur Koehler, M.D., testified that he had reviewed the
medical reports, photographs, and other records of J.’s gunshot wounds. Dr.
Koehler testified that the bullet entry to J.’s scalp was “tangential,” which
meant that it was fired somewhat parallel to his scalp rather than at a right
angle. Dr. Koehler stated that J.’s wound was consistent with a bullet passing
through Mary Magoon’s arm.
Forensic pathologist, Irving Root, M.D., also testified about J.’s
injuries. Dr. Root stated that, if J. had been injured in the area of the hallway
bathroom, one would expect to see a blood trail from that area to the futon
15
09cv0388 L (NLS)

1

4

where J. was found, but there appeared to be no such blood trail. Because of
this, and because of the large amount of blood on the futon, it was Dr. Root’s
opinion that J. was on the futon within a few seconds to one minute after he
began to bleed. Dr. Root testified that the vomit found on the hallway floor
was consistent with J.’s vomiting after he sustained the scalp injury.

5

B. Penalty Phase

2
3

6

1. Prosecution Evidence

7

The prosecution gave no opening statement, put on no evidence, and
rested on the guilt phase evidence.

8
9

2. Defense Evidence

10
11

James Park, a correctional consultant and retired administrator for the
California Department of Corrections, testified about the conditions of
defendant’s confinement, if he were sentenced to life without the possibility
of parole.

12
13
14

Carrie Baker, who lived in Jamul, testified that, in the early morning of
May 27, 1992, she heard approximately five muffled gunshots around 2:45
a.m. (which would have been after the time defendants had been arrested).
Three or four days later, she read something about the murders, called a
number that was listed for information about the case, and left her name and
telephone number on an answering machine.

15
16
17
18
19

Eight members of defendant’s family (his wife, three children, three
brothers, and a sister) testified that they loved defendant and would be deeply
saddened if he were put to death.

20
21
22

Hoyos, 41 Cal. 4th at 879-89.

23
24

III. PROCEDURAL MATTERS
A.

Procedural Default

25

When a state court’s rejection of a federal claim “rests on a state law ground that is

26

independent of the federal question and adequate to support the judgment,” the claim is

27

procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729 (1991). “State rules

28

count as ‘adequate’ if they are ‘firmly established and regularly followed.’” Johnson v.
16
09cv0388 L (NLS)

1

Lee, 578 U.S. ___, 136 S.Ct. 1802, 1804 (2016), quoting Walker v. Martin, 562 U.S. 307,

2

316 (2011). “For a state procedural rule to be ‘independent,’ the state law basis for the

3

decision must not be interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 702,

4

704 (9th Cir. 2001), citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983) and Harris

5

v. Reed, 489 U.S. 255, 265 (1989). “In all cases in which a state prisoner has defaulted his

6

federal claims in state court pursuant to an independent and adequate state procedural rule,

7

federal habeas review of the claims is barred unless the prisoner can demonstrate cause for

8

the default and actual prejudice as a result of the alleged violation of federal law, or

9

demonstrate that failure to consider the claims will result in a fundamental miscarriage of

10

justice.” Coleman, 501 U.S. at 750.

11

Respondent asserts that the Court should not review the portion of Claim 14 alleging

12

ineffective assistance of counsel with respect to the third party culpability defense because

13

the claim is procedurally barred as untimely. (Ans. at 11-12.) Respondent also asserts that

14

Claims 15 and 16 are procedurally barred under Dixon and Seaton, respectively, and should

15

not be reviewed on the merits. (Ans. at 13-14.)

16

In denying the first state habeas petition, the California Supreme Court held that

17

“[e]xcept insofar as it asserts ineffective assistance of trial counsel,” the state claim now

18

raised as Claim 15 in the SAP “is barred under In re Dixon (1953) 41 Cal.2d 756, 759,

19

because it could have been, but was not, raised on appeal.” (Lodgment No. 118.) The

20

California Supreme Court held that “[e]xcept insofar as it asserts ineffective assistance of

21

trial counsel,” the state claim now raised as Claim 16 in the SAP “is barred under In re

22

Seaton (2004) 34 Cal.4th 193, 199-200, because it was not properly preserved in the trial

23

court.” (Id.) The California Supreme Court also summarily stated: “All claims are denied

24

on the merits.” (Id.) With respect to the second state petition, the California Supreme

25

Court denied the ineffective assistance of counsel portion of the state claim now raised as

26

Claim 14 on the merits and stated that the claim “is also barred as untimely (In re Robbins

27

(1998) 18 Cal.4th 770, 780-81) and because it could have been, but was not, raised in

28

petitioner’s first petition for writ of habeas corpus. (In re Clark (1993) 5 Cal.4th 750, 76717
09cv0388 L (NLS)

1

769.)” (Lodgment No. 124.)

2

Petitioner argues that he can satisfy cause and prejudice with respect to Claim 14,

3

and can also demonstrate that Claim 14 should be heard on the merits under the miscarriage

4

of justice exception. (Pet. Brief at 29-32.) Petitioner points out that the California Supreme

5

Court explicitly exempted the ineffective assistance of counsel allegations in Claims 15

6

and 16 from procedural bars in ruling on those claims, and alleges that with respect to

7

Claim 15 “[r]egardless of whether a separate claim for prosecutorial misconduct as to the

8

initial making of this statement is viable in this federal proceeding, the IAC component of

9

the claim clearly is,” and asserts with respect to Claim 16 that “[t]he crux of petitioner’s

10

claim is ineffective assistance of counsel.” (Id. at 36, 38.)

11

The Ninth Circuit has held that: “Procedural bar issues are not infrequently more

12

complex than the merits issues presented by the appeal, so it may well make sense in some

13

instances to proceed to the merits if the result will be the same.” Franklin v. Johnson, 290

14

F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)

15

(“We do not mean to suggest that the procedural-bar issue must invariably be resolved first;

16

only that it ordinarily should be.”) In light of the acknowledged complexities involved in

17

a prospective procedural default analysis, coupled with the fact that these three claims each

18

fail on the merits, as discussed in detail below, the Court will address Claims 14, 15 and

19

16 on the merits and decline to address the issue of procedural default.

20

B.

Teague v. Lane

21

“Unless they fall within an exception to the general rule, new constitutional rules of

22

criminal procedure will not be applicable to those cases which have become final before

23

the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality

24

opinion); see also Stringer v. Black, 503 U.S. 222, 227 (1992) (“Subject to two exceptions,

25

a case decided after a petitioner’s conviction and sentence became final may not be the

26

predicate for federal habeas corpus relief unless the decision was dictated by precedent

27

existing when the judgment in question became final.”) A new rule is one that “breaks

28

new ground or imposes a new obligation on the States or the Federal Government” or one
18
09cv0388 L (NLS)

1

whose “result was not dictated by precedent existing at the time defendant’s conviction

2

became final.” Teague, 489 U.S. at 301. The two exceptions to Teague are if the new rule

3

in question: (1) “places ‘certain kinds of primary, private individual conduct beyond the

4

power of the criminal law-making authority to proscribe,’” or (2) “requires the observance

5

of ‘those procedures that . . . are implicit in the concept of ordered liberty.’” Id. at 307,

6

quoting Mackey v. United States, 401 U.S. 667, 692, 693 (1971) (internal quotation

7

omitted). “That a new procedural rule is ‘fundamental’ in some abstract sense is not

8

enough; the rule must be one ‘without which the likelihood of an accurate conviction is

9

seriously diminished.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004), quoting Teague,

10

489 U.S. at 313. “[I]f the State does argue that the defendant seeks the benefit of a new

11

rule of constitutional law, the court must apply Teague v. Lane before considering the

12

merits of the claim.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994). Respondent has raised

13

Teague as a defense with respect to Claims 4 and 12. (See Ans. Mem. at 22-24, Resp. Opp.

14

at 33 (Claim 4); Resp. Opp. at 53 (Claim 12).)

15

For the purposes of the Teague analysis, the Court again notes that the California

16

Supreme Court affirmed Petitioner’s conviction and sentence in a decision issued on July

17

23, 2007. On February 19, 2008, the Supreme Court of the United States denied his petition

18

for a writ of certiorari, at which time Petitioner’s conviction became final.

19

1.

20

In this claim, Petitioner contends that the trial court erred in denying a defense

21

motion to conduct individual, sequestered voir dire, specifically with respect to the

22

prospective jurors’ responses concerning the death penalty. (SAP at 32.) Respondent

23

argues that “Hoyos’ speculation that the trial court’s refusal to conduct individual and

24

sequestered voir dire ‘resulted in a significant risk that the resulting voir dire was

25

inadequate “to identify unqualified jurors[”]’ (SAP at 34) indeed ‘breaks new ground or

26

imposes a new obligation on the State or the Federal government,’” and does not fit under

27

either Teague exception. (Resp. Opp. at 13-14.) Petitioner maintains that he “seeks only

28

the application of the well-settled rule that a voir dire procedure that ‘render(s) the

Claim 4

19
09cv0388 L (NLS)

1

defendant’s trial fundamentally unfair,’ violates the United States Constitution, Mu’Min

2

[v. Virginia, 500 U.S. 415 (1991)], supra.” (Pet. Brief at 9-10.)

3

However, upon review, it is clear that in Mu’Min, the very case Petitioner relies

4

upon, the Supreme Court rejected a claim of error arising from a trial court’s refusal to

5

conduct individual voir dire to question prospective jurors on the specific content of their

6

exposure to pretrial publicity. See id. at 427 (“[O]ur own cases have stressed the wide

7

discretion granted to the trial court in conducting voir dire in the area of pretrial publicity

8

and in other areas of inquiry that might tend to show juror bias.”)

9

As such, Petitioner’s citation to Mu’Min fails to support his contention that the rule

10

he seeks is compelled by existing Supreme Court precedent. Such a rule would “break[]

11

new ground or impose[] a new obligation on the States or the Federal Government,” and

12

Petitioner fails to show that either exception to Teague applies to this “new” rule. Id. at

13

301, 307. The rule proposed in Claim 4 is Teague-barred. In any event, as an alternate

14

ground for the decision, the Court finds that Claim 4 also fails on the merits for the reasons

15

discussed below.

16

2.

17

In this Claim, Petitioner contends that he, as a Mexican national, was deprived of

18

due process by the violation of his right to consular access and notification pursuant to

19

Article 36 of the Vienna Convention. (SAP at 56-57.) Respondent asserts that “Hoyos has

20

not presented any case law indicating that reversal of his conviction and sentence because

21

of a violation of Article 36 of the Vienna Convention is compelled by existing Supreme

22

Court precedent,” and argues that such a rule would be barred under Teague. (Ans. Mem.

23

at 53; Resp. Opp. at 34.)

Claim 12

24

In Breard v. Greene, 523 U.S. 371 (1998), the Supreme Court suggested generally

25

that “[a]ny rights that the Consul General might have by virtue of the Vienna Convention

26

exist for the benefit of [the foreign country], not for him as an individual.” Id. at 378. In

27

2008, meanwhile, the Supreme Court acknowledged the lack of resolution on this issue and

28

expressed skepticism that any such individual rights, even if granted, would be enforceable
20
09cv0388 L (NLS)

1

on federal habeas review. See Medellin v. Dretke, 544 U.S. 660, 664 (2005) (“[E]ven

2

accepting, arguendo, the ICJ’s construction of the Vienna Convention’s consular access

3

provisions [determining, among other issues, that it guaranteed individually enforceable

4

rights], a violation of those provisions may not be cognizable in a federal habeas

5

proceeding.”) Both parties also acknowledge the Supreme Court’s decision in Garcia v.

6

Texas, 564 U.S. 940 (2011) (per curiam), in which the Court reasserted Medellin’s holding

7

that “[n]either the Avena decision nor the President’s Memorandum purporting to

8

implement that decision constituted directly enforceable federal law.” Garcia, 564 U.S. at

9

941.

10

Thus, given the absence of clearly established federal law dictating that the Vienna

11

Convention creates individually enforceable rights, much less ones that are cognizable on

12

federal habeas review, it is clear that the rule Petitioner advances would “break[] new

13

ground or impose[] a new obligation on the States or the Federal Government.” Teague,

14

489 U.S. at 301. There is also no indication that such a rule would fall under either

15

exception to Teague. See id. at 307. Accordingly, Claim 12 is barred under Teague, and

16

in any event also fails on the merits as discussed below.

17
18

IV. STANDARDS OF REVIEW
A.

Standard of Merits Review under AEDPA

19

The provisions of the Anti-Terrorism and Effective Death Penalty Act [“AEDPA”]

20

apply to federal habeas petitions filed after its effective date of April 24, 1996. See Lindh

21

v. Murphy, 521 U.S. 320, 336 (1997); Woodford v. Garceau, 538 U.S. 202, 207 (2003).

22

Because Petitioner filed his federal petition in this Court after that date, AEDPA applies to

23

this case.

24

Pursuant to AEDPA, a state prisoner is not entitled to federal habeas relief on a claim

25

that the state court adjudicated on the merits unless that ruling: “(1) resulted in a decision

26

that was contrary to, or involved an unreasonable application of, clearly established Federal

27

law, as determined by the Supreme Court of the United States,” or “(2) resulted in a

28

decision that was based on an unreasonable determination of the facts in light of the
21
09cv0388 L (NLS)

1

evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 97-

2

98 (2011), quoting 28 U.S.C. § 2254(d)(1)-(2).

3

A decision is “contrary to” clearly established law if “the state court arrives at a

4

conclusion opposite to that reached by [the Supreme] Court on a question of law or if the

5

state court decides a case differently than [the Supreme] Court has on a set of materially

6

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision

7

involves an “unreasonable application” of clearly established federal law if “the state court

8

identifies the correct governing legal principle . . . but unreasonably applies that principle

9

to the facts of the prisoner’s case.” Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir.

10

2004). “Section 2254(d)(1)’s ‘clearly established’ phrase ‘refers to the holdings, as

11

opposed to the dicta, of [the Supreme] Court’s decisions at the time of the relevant state-

12

court decision.’” Lockyer v. Andrade, 538 U.S. 63, 71 (2003), quoting Williams, 529 U.S.

13

at 412.

14

“[C]ircuit precedent does not constitute ‘clearly established Federal law, as

15

determined by the Supreme Court,’ 28 U.S.C. 2254(d)(1). It therefore cannot form the

16

basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S. 37, 48-49 (2012).

17

However, “circuit court precedent may be persuasive in determining what law is clearly

18

established and whether a state court applied that law unreasonably.” Stanley v. Cullen,

19

633 F.3d 852, 859 (9th Cir. 2011), quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.

20

2010); see also Marshall v. Rodgers, 569 U.S. 58, __, 133 S.Ct. 1446, 1450-51 (2013) (per

21

curiam) (while a reviewing court may “look to circuit precedent to ascertain whether it has

22

already held that the particular point in issue is clearly established by Supreme Court

23

precedent, . . . it may not canvass circuit decisions to determine whether a particular rule

24

of law is so widely accepted among Federal Circuits that it would, if presented to [the

25

Supreme] Court, be accepted as correct.”) (internal citations and quotations omitted).

26

“The question under AEDPA is not whether a federal court believes the state court’s

27

determination was incorrect but whether that determination was unreasonable– a

28

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007), citing
22
09cv0388 L (NLS)

1

Williams, 529 U.S. at 410. “State-court factual findings, moreover, are presumed correct;

2

the petitioner has the burden of rebutting the presumption by ‘clear and convincing

3

evidence.’” Rice v. Collins, 546 U.S. 333, 338-39 (2006), quoting 28 U.S.C. § 2254(e)(1).

4

“A state court’s determination that a claim lacks merit precludes federal habeas

5

relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

6

decision.” Richter, 562 U.S. at 101, quoting Yarborough v. Alvarado, 541 U.S. 652, 664

7

(2004). “If this standard is difficult to meet, that is because it was meant to be. As amended

8

by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation

9

of claims already rejected in state proceedings. . . . It preserves authority to issue the writ

10

in cases where there is no possibility fairminded jurists could disagree that the state court’s

11

decision conflicts with [the Supreme] Court’s precedents.” Richter, 562 U.S. at 102.

12

Claims 12, a portion of Claim 14 (the portion not involving allegations of ineffective

13

assistance of counsel), 15-23,3 and 25-28 were each denied on the merits by the California

14

Supreme Court in a February 18, 2009, Order which stated in relevant part: “The petition

15

for writ of habeas corpus, filed September 11, 2006, is denied. All claims are denied on

16

the merits.” (Lodgment No. 118.)

17

Moreover, the ineffective assistance of counsel aspects of Claim 144 were denied on

18

the merits by the California Supreme Court in a October 30, 2013, Order which stated in

19

relevant part: “The petition for writ of habeas corpus, filed February 3, 2011, is denied.

20

All claims (I & II) are denied on the merits.” (Lodgment No. 124.)

21

Because these claims were denied on the merits without a statement of reasoning,

22

the Court will conduct an independent review of the record with respect to Claims 12, 14-

23

23 and 25-28 in order “to determine whether the state court clearly erred in its application

24
25

26

The California Supreme Court alternately held Claims 15 and 16 to be procedurally
barred, addressed in section III.A. above.
4
The California Supreme Court alternately held this aspect of Claim 14 to be
procedurally barred, addressed in section III.A. above.

27
28

3

23
09cv0388 L (NLS)

1

of Supreme Court Law.” See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); see

2

also Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (“Federal habeas review is not

3

de novo when the state court does not supply reasoning for its decision, but an independent

4

review of the record is required to determine whether the state court clearly erred in its

5

application of controlling federal law.”); see also Richter, 562 U.S. at 98 (“Where a state

6

court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden must

7

still be met by showing there was no reasonable basis for the state court to deny relief.”)

8

“Under § 2254(d), a habeas court must determine what arguments or theories supported or,

9

as here, could have supported, the state court’s decision; and then it must ask whether it is

10

possible fairminded jurists could disagree that those arguments or theories are inconsistent

11

with the holding in a prior decision of this Court.” Id. at 102.

12

B.

Standard for Evidentiary Hearing

13

For claims previously decided on the merits by a state court, the Supreme Court has

14

held that a federal habeas court’s “review under § 2254(d)(1) is limited to the record that

15

was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,

16

563 U.S. 170, 181 (2011). “Although state prisoners may sometimes submit new evidence

17

in federal court, AEDPA’s statutory scheme is designed to strongly discourage them from

18

doing so.” Id. at 186. Section 2254(d)(2), meanwhile, expressly limits a reviewing court

19

to the “evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

20

Section 2254(e)(2) of AEDPA further limits the circumstances under which a district

21

court may hold an evidentiary hearing. If the prisoner “has failed to develop the factual

22

basis of a claim in State court proceedings,” a district court is precluded from holding an

23

evidentiary hearing unless the prisoner meets certain narrow exceptions. 28 U.S.C.

24

§ 2254(e)(2). The claim in question must either rely upon “(i) a new rule of constitutional

25

law, made retroactive to cases on collateral review by the Supreme Court, that was

26

previously unavailable” or “(ii) a factual predicate that could not have been previously

27

discovered through the exercise of due diligence;” and the prisoner must show that “the

28

facts underlying the claim would be sufficient to establish by clear and convincing evidence
24
09cv0388 L (NLS)

1

that but for constitutional error, no reasonable factfinder would have found the applicant

2

guilty of the underlying offense.” Id. “Section 2254(e)(2) continues to have force where

3

§ 2254(d)(1) does not bar habeas relief,” for instance, “when deciding claims that were not

4

adjudicated on the merits in state court.” Pinholster, 563 U.S. at 185.

5

“Because the deferential standards prescribed by § 2254 control whether to grant

6

habeas relief, a federal court must take into account those standards in deciding whether an

7

evidentiary hearing is appropriate.” Landrigan, 550 U.S. at 474. “It follows that if the

8

record refutes the applicant’s factual allegations or otherwise precludes relief, a district

9

court is not required to hold an evidentiary hearing.” Id.; see also Sully v. Ayers, 725 F.3d

10

1057, 1075 (9th Cir. 2013) (“[A]n evidentiary hearing is pointless once the district court

11

has determined that § 2254(d) precludes habeas relief.”)

12

In light of these limitations, the Court will conduct a section 2254(d) review,

13

provided the claims at issue are subject to section 2254(d), together with the evaluation of

14

Petitioner’s request for an evidentiary hearing on Claims 13-23 and 25.

15

C.

Standard for Claims of Ineffective Assistance of Counsel

16

Petitioner raises numerous independent claims of ineffective assistance of counsel

17

at both the guilt and penalty phases, including allegations that trial counsel was ineffective

18

for failing to object to instances of prosecutorial misconduct and with respect to asserted

19

Brady violations. Given that these claims appear throughout the SAP, the Court sets forth

20

the relevant standard prior to the outset of the discussion.

21

Pursuant to the clearly established standard set forth in Strickland v. Washington,

22

466 U.S. 668, 687 (1984), “a defendant must show both deficient performance and

23

prejudice in order to prove that he has received ineffective assistance of counsel.” Knowles

24

v. Mirzayance, 556 U.S. 111, 122 (2009), citing Strickland, 466 U.S. at 687. “Surmounting

25

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

26

“When a convicted defendant complains of the ineffectiveness of counsel’s

27

assistance, the defendant must show that counsel’s representation fell below an objective

28

standard of reasonableness.” Strickland, 466 U.S. at 687-88. “[A] court must indulge a
25
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1

strong presumption that counsel’s conduct falls within the wide range of reasonable

2

professional assistance; that is, the defendant must overcome the presumption that, under

3

the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at

4

689 (“Judicial scrutiny of counsel’s performance must be highly deferential.”)

5

To establish prejudice, the petitioner must demonstrate that “there is a reasonable

6

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

7

have been different.” Id. at 694. “A reasonable probability is a probability sufficient to

8

undermine confidence in the outcome.” Id.; see also id. at 691 (“An error by counsel, even

9

if professionally unreasonable, does not warrant setting aside the judgment of a criminal

10

proceeding if the error had no effect on the judgment.”) “The likelihood of a different

11

result must be substantial, not just conceivable.” Richter, 562 U.S. at 112.

12

With respect to the penalty phase, “[i]n assessing prejudice, we reweigh the evidence

13

in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith,

14

539 U.S. 510, 534 (2003); Williams, 529 U.S. at 397-98 (the court must “evaluate the

15

totality of the available mitigation evidence – both that adduced at trial, and the evidence

16

adduced in the habeas proceeding – in reweighing it against the evidence in aggravation.”);

17

Wong v. Belmontes, 558 U.S. 15, 26 (2009) (per curiam) (“[T]he reviewing court must

18

consider all the evidence-the good and the bad-when evaluating prejudice.”), citing

19

Strickland, 466 U.S. at 695-96.

20
21
22
23
24
25
26
27
28

Moreover, when a federal habeas court is reviewing a claim of ineffective assistance
of counsel previously adjudicated on the merits by a state court:
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.” Williams, supra, at 410, 120 S.Ct. 1495. A state
26
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1

court must be granted a deference and latitude that are not in operation when
the case involves review under the Strickland standard itself.

2
3

Richter, 562 U.S. at 101. “When § 2254(d) applies, the question is not whether counsel’s

4

actions were reasonable. The question is whether there is any reasonable argument that

5

counsel satisfied Strickland’s deferential standard.” Id. at 105.

6
7

V. DISCUSSION
A.

Jury Selection Claims

8

1.

9

Petitioner asserts that the “trial court erred in refusing to find a prima facie case of

10

purposeful discrimination” when the prosecutor struck three of four Hispanic individuals

11

from the sitting jury panel, prospective jurors L.H. and M.A. and prospective alternate juror

12

Y.M.,5 and additionally erred “in failing to require the prosecutor to state reasons for the

13

strikes, and then to evaluate the genuineness of the reasons as required by Batson.” (SAP

14

at 10.) Petitioner also asserts that “[t]he California Supreme Court’s rejection of this claim

15

was an unreasonable application of Johnson because it failed to acknowledge that the

16

showing supported an inference of discrimination that was sufficient to have required the

17

prosecutor to state his reasons for the strikes. Instead, the Supreme Court engaged in the

18

prohibited exercise of reviewing the trial record regarding the struck jurors and identifying

19

colorable reasons why the prosecutor might have legitimately struck the three jurors.” (Id.

20

at 15.)

21
22
23
24
25
26
27
28

Claim 1

Petitioner raised this claim on direct appeal, where the California Supreme Court
rejected it in a reasoned opinion, as follows:
Defendant contends that the prosecution’s striking of Hispanic
prospective jurors violated his right to equal protection under the Fourteenth
Amendment to the United States Constitution. For the reasons discussed
below, we conclude the trial court did not err in denying defendant’s motion

The Court will refer to each member of the jury venire by their first and last
initials only, following the practice of the California Supreme Court in this case.
5

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2

under Batson v. Kentucky (1986) 476 U.S. 79, 84–89, 106 S.Ct. 1712, 90
L.Ed.2d 69 (Batson), and People v. Wheeler (1978) 22 Cal.3d 258, 276–277,
148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler).

3
4
5
6
7
8

The prosecutor exercised peremptory challenges against three Hispanic
jurors: M. A., L. H., and Y. M. Alvarado made an objection to each excusal
under Batson/Wheeler, in which defendant joined. The prosecution argued
that the codefendants had not made a prima facie showing, given that one
Hispanic juror, P. G., was on the panel. The trial court found no prima facie
showing and denied the motion, basing its ruling on a review of the jurors’
voir dire transcripts, which disclosed neutral grounds for the challenges, and
on the presence of at least one Hispanic juror on the panel, P. G.

9
10
11
12
13
14
15
16
17
18
19
20

Both the state and federal Constitutions prohibit the use of peremptory
challenges to remove prospective jurors based solely on group bias. (Batson,
supra, 476 U.S. at p. 89, 106 S.Ct. 1712; Wheeler, supra, 22 Cal.3d at pp.
276–277, 148 Cal.Rptr. 890, 583 P.2d 748.) Recently, “the United States
Supreme Court reaffirmed that Batson states the procedure and standard to be
employed by trial courts when challenges such as defendant’s are made. ‘First,
the defendant must make out a prima facie case by “showing that the totality
of the relevant facts gives rise to an inference of discriminatory purpose.”
[Citations.] Second, once the defendant has made out a prima facie case, the
“burden shifts to the State to explain adequately the racial exclusion” by
offering permissible race-neutral justifications for the strikes. [Citations.]
Third, “[i]f a race-neutral explanation is tendered, the trial court must then
decide ... whether the opponent of the strike has proved purposeful racial
discrimination.” [Citation.]’” (People v. Cornwell (2005) 37 Cal.4th 50, 66–
67, 33 Cal.Rptr.3d 1, 117 P.3d 622 (Cornwell), quoting Johnson v. California
(2005) 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129, fn. omitted
(Johnson).)

21
22
23
24
25
26
27
28

The high court clarified that “a defendant satisfies the requirements of
Batson’s first step by producing evidence sufficient to permit the trial judge
to draw an inference that discrimination has occurred.” (Johnson, supra, 545
U.S. at p. 170, 125 S.Ct. 2410, revg. in part People v. Johnson (2003) 30
Cal.4th 1302, 1318, 1 Cal.Rptr.3d 1, 71 P.3d 270 [requiring the defendant to
“show that it is more likely than not the other party’s peremptory challenges,
if unexplained, were based on impermissible group bias”].) “‘When a trial
court denies a Wheeler motion without finding a prima facie case of group
bias, the appellate court reviews the record of voir dire for evidence to support
the trial court’s ruling. [Citations.] We will affirm the ruling where the record
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

suggests grounds upon which the prosecutor might reasonably have
challenged the jurors in question.’” (Guerra, supra, 37 Cal.4th at p. 1101, 40
Cal.Rptr.3d 118, 129 P.3d 321, quoting People v. Farnam (2002) 28 Cal.4th
107, 135, 121 Cal.Rptr.2d 106, 47 P.3d 988.)
As a preliminary matter, defendant contends that because the trial court
did not articulate the standard it used to determine whether he established a
prima facie discrimination case, we must presume it used the then current
“strong likelihood” standard. Defendant asserts that this standard sets a higher
threshold than the Batson standard of an “inference” of group bias. Defendant
also claims that because the trial court used the incorrect standard, its ruling
is entitled to no deference.FN15 But as we have held in analyzing
Batson/Wheeler claims, “[r]egardless of the standard employed by the trial
court, and even assuming without deciding that the trial court’s decision is not
entitled to deference, we have reviewed the record and, like the United States
Supreme Court in Johnson ... [we] are able to apply the high court’s standard
and resolve the legal question whether the record supports an inference that
the prosecutor excused a juror on the basis of race.” (Cornwell, supra, 37
Cal.4th at p. 73, 33 Cal.Rptr.3d 1, 117 P.3d 622, italics omitted; Guerra,
supra, 37 Cal.4th at p. 1101, 40 Cal.Rptr.3d 118, 129 P.3d 321.)
FN15. Defendant also contends that the trial court’s ruling
deserves no deference because, in the course of discussing the
motion, the trial court mentioned that “there were two African–
American representatives on the jury.” Defendant argues that this
demonstrates a misunderstanding of the purpose of Batson. We
need not reach this issue, because as explained below, our
conclusion that defendant did not make a prima facie showing is
based on our review of the record, not on deference to the trial
court’s ruling or reasoning.

21
22
23
24
25
26
27
28

As to the three challenged jurors, defense trial counsel sought to
establish a prima facie case of discrimination solely on the circumstance that
the prosecutor struck three individuals of Hispanic ancestry, and that
defendant was of the same ancestry. On appeal, defendant contends that a
prima facie case is established because the prosecutor struck three of the only
four Hispanics called to serve on the jury. In the alternative, defendant claims
that the fact that all three struck jurors were Hispanic women supports a prima
facie case of discrimination against Hispanic women as a cognizable class.
We will assume, without deciding, that defendant’s claim of discrimination as
to Hispanic women specifically (as opposed to Hispanics generally) is not
29
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1
2

forfeited on appeal because he failed to present it below. (See People v. Lewis
and Oliver (2006) 39 Cal.4th 970, 1016, fn. 12, 47 Cal.Rptr.3d 467, 140 P.3d
775 (Lewis and Oliver).)

3
4
5
6
7
8
9
10
11
12

We have held that, although a prosecutor’s excusal of all members of a
particular group may establish a prima facie discrimination case, especially if
the defendant belongs to the same group, this fact alone is not conclusive.
(Guerra supra, 37 Cal.4th at p. 1101–1102, 40 Cal.Rptr.3d 118, 129 P.3d 321;
People v. Crittenden (1994) 9 Cal.4th 83, 119, 36 Cal.Rptr.2d 474, 885 P.2d
887 (Crittenden); but see Johnson, supra, 545 U.S. at pp. 166, 173, 125 S.Ct.
2410 [the removal of all three African–American prospective jurors
established a prima facie case].) The prosecution did not excuse all Hispanic
jurors, and defendant is a Hispanic man, not a Hispanic woman. In any event,
as discussed below, the record discloses race-neutral grounds for the
prosecutor’s peremptory challenges. (Guerra, supra, 37 Cal.4th at p. 1101, 40
Cal.Rptr.3d 118, 129 P.3d 321.)
1. Prospective Juror M. A.

13
14
15
16
17
18
19
20

During voir dire, Prospective Juror M. A. stated that Spanish was her
primary language, and that she did not speak English well or understand many
words. She stated she did not have any strong feelings either for or against
capital punishment. Defense counsel moved to excuse M. A. for cause
because she lacked sufficient skills in both written and spoken English, and
because her problems with speaking and understanding English could affect
her ability to interact with the other jurors during deliberations. The
prosecutor agreed and also requested that she be excused for cause. Trial
counsel for Alvarado opposed the for-cause challenge. The trial court denied
the challenge, and stated the parties would have to deal with excusing M. A.
through a peremptory challenge.

21
22
23
24
25
26
27

Defendant contends that because the trial court denied the challenge for
cause based on M. A.’s limited English language skills, this ground is not a
valid basis for a peremptory challenge either. But the circumstance that a juror
is not subject to exclusion for cause does not, on its own, support an inference
that group bias motivated the peremptory challenge. (Cornwell, supra, 37
Cal.4th at p. 70, 33 Cal.Rptr.3d 1, 117 P.3d 622.) The record demonstrates
both the prosecutor and defendant’s own counsel were reasonably concerned
about the prospective juror’s English language skills and, on this basis, the
prosecutor was entitled to excuse her.

28
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09cv0388 L (NLS)

1
2
3
4
5
6
7
8
9
10
11
12
13
14

2. Prospective Juror L. H.
During voir dire, Prospective Juror L.H. stated she tended to favor life
imprisonment, rather than the death penalty, as the appropriate punishment.
She observed that she could keep an open mind, but would have to be “really
convinced” before returning a death verdict. Although the trial court had
explained at some length that neither side bore a burden of proof in the penalty
phase, when asked by the prosecutor if she would place a burden of proof on
either party regarding the appropriate punishment, she responded,
“Prosecution.”
At best, L.H. appeared equivocal about the death penalty, and at worst,
she appeared biased against it. Defendant claims that although she stated
during voir dire that she would lean toward imposing life imprisonment, she
also said she could keep an open mind. That a juror is equivocal about his or
her ability to impose the death penalty is relevant to a challenge for cause, but
does not undercut the race-neutral basis for a prosecutor’s decision to excuse
a prospective juror peremptorily. (People v. Catlin (2001) 26 Cal.4th 81, 118,
109 Cal.Rptr.2d 31, 26 P.3d 357.) The record strongly suggests the prosecutor
had grounds for concern about her possible bias against the death penalty, and
on this basis was entitled to excuse her.

15
16

3. Prospective Juror Y. M.

17

During the court’s voir dire, Prospective Juror Y.M. stated she had
strong religious beliefs against the death penalty and she could not return a
death sentence. During the prosecution’s voir dire, she again expressed
religious reservations against the death penalty, but asserted she could sit as a
juror in this case. The trial court denied the prosecutor’s for cause challenge
of Y. M., but allowed the prosecutor to exercise a peremptory challenge
against Y. M. after finding that Y. M. had strong feelings against the death
penalty. The record suggests the prosecutor had reason for concern about Y.
M.’s possible bias against the death penalty, and on this basis, he was entitled
to excuse her.

18
19
20
21
22
23
24

4. Group Attitude

25
26
27
28

In addition, defendant claims that, even if Prospective Jurors L. H. and
Y. M. exhibited a bias against the death penalty, most Hispanic women
actually feel this way, so that any disqualification of a Hispanic woman based
on her beliefs about the death penalty would constitute improper bias against
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1
2
3
4
5
6
7

this group. We note that defendant points to no evidence in the record to
support his speculation about Hispanic women’s beliefs. In any event, we
have recently rejected a similar contention. (Lewis and Oliver, supra, 39
Cal.4th at p. 1016, 47 Cal.Rptr.3d 467, 140 P.3d 775.) A prosecutor may
excuse prospective jurors, including members of cognizable groups, based on
personal, individual biases those prospective jurors actually express, even if
the biased view or attitude may be more widely held inside the cognizable
group than outside of it. (Ibid.)
Hoyos, 41 Cal. 4th at 899-903 (brackets in original).

8

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that “the State’s

9

privilege to strike individual jurors through peremptory challenges, is subject to the

10

commands of the Equal Protection Clause,” and stated that “the Equal Protection Clause

11

forbids the prosecutor to challenge potential jurors solely on account of their race.” Id. at

12

89. The Batson Court outlined a three-step procedure to evaluate such claims, restated in

13

Johnson v. California, 545 U.S. 162 (2005), as follows:

14
15
16
17
18
19
20
21

First, the defendant must make out a prima facie case “by showing that the
totality of the relevant facts gives rise to an inference of discriminatory
purpose.” 476 U.S., at 93-94, 106 S.Ct. 1712 (citing Washington v. Davis,
426 U.S. 229, 239-242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). Second, once
the defendant has made out a prima facie case, the “burden shifts to the State
to explain adequately the racial exclusion” by offering permissible raceneutral justifications for the strikes. 476 U.S., at 94, 106 S.Ct. 1712; see also
Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 31 L.Ed.2d 536
(1972). Third, “[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful racial
discrimination.” Purkett v. Elem, 514 U.S. 765, 767, 115 St. 1769, 131
L.Ed.2d 834 (1995) (per curiam).

22
23

Id. at 168 (footnote omitted) (bracket in original).

24

To state a prima facie case under Batson’s first step, a defendant “must show that

25

(1) the prospective juror is a member of a ‘cognizable racial group,’ (2) the prosecutor used

26

a peremptory strike to remove the juror and (3) the totality of the circumstances raises an

27

inference that the strike was on account of race.” Crittenden v. Ayers, 624 F.3d 943, 955

28

(9th Cir. 2010), quoting Batson, 476 U.S. at 96. “A pattern of exclusion of minority
32
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1

venirepersons provides support for an inference of discrimination.” Turner v. Marshall, 63

2

F.3d 807, 812 (9th Cir. 1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677

3

(9th Cir. 1999) (en banc); see also Batson, 476 U.S. at 97 (“[A] ‘pattern’ of strikes against

4

[minority] jurors included in the particular venire might give rise to an inference of

5

discrimination.”)

6

disproportionately used against minority jurors, can satisfy this first step.

7

Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002) (prosecutor’s use of four of

8

nineteen, or 21 percent, of challenges to strike four of seven Hispanic prospective jurors,

9

where Hispanics comprised only 12 percent of venire, supported an inference of

10

A statistical disparity, such as showing that strikes were
See e.g.

discrimination).

11

During jury selection, defense counsel raised a challenge to the prosecutor’s exercise

12

of peremptory challenges against two female Hispanic prospective jurors; the trial court

13

heard the challenge after all the jurors and alternates had been selected, at which time the

14

defense additionally challenged the prosecutor’s decision to exercise a peremptory

15

challenge to excuse a third female Hispanic individual from the panel of prospective

16

alternate jurors. At the hearing on the challenges, trial counsel asserted the grounds for the

17

defense’s Batson/Wheeler motion, stating that three individuals of “Mexican ancestry” had

18

been excused through prosecutor’s use of peremptory challenges and that Petitioner “was

19

of the cognizable class.” (Reporter’s Transcript [“RT”] 2786-87.) In response, the trial

20

prosecutor contended that a prima facie showing had not been made and pointed to the

21

presence of a Hispanic juror on the panel; the prosecutor also noted that “[t]here was

22

another, I would argue, Hispanic on the jury as an alternate, but that came after the motion

23

is made. So I don’t believe it would be proper for the court to consider that at this time.”

24

(RT 2787.)

25

///

26

///

27

///

28

///
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09cv0388 L (NLS)

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The trial court considered the challenge, stating “I have to make a determination as

2

to whether, considering everything, whether or not these preemptory [sic] challenges were

3

exercised based upon a discriminatory approach to this jury.” (RT 2788.) The judge stated

4

that he was “mindful” that a Hispanic man was on the jury, as well as members of other

5

minority groups, such as two Black jurors. (Id.) The judge referenced the voir dire record

6

and noted reasons why each of the three prospective jurors may have been excused,

7

specifically noting that M.A. expressed difficulty with the English language, Y.M. voiced

8

an objection to the death penalty, and L.H. would tend to side with life in prison rather than

9

the death penalty. (RT 2788-89.) The trial court then stated that:

10
11
12
13

Observing the manner which all of these jurors were questioned by the
prosecution, the extent of the questioning, the use of these preemptories [sic],
the presence of at least one Hispanic on the panel, Mr. P[] G[], it seems to me
that there really isn’t anything from which I could reasonably find the exercise
of preemptories [sic] based on race. Some attempt to exclude Hispanics, that
doesn’t seem to be the case at all in each of these cases.

14
15
16
17
18
19
20
21

It seems to me that a reasonable individual would be inclined to perhaps
exclude these jurors on matters solely independent of race. I just don’t see it.
And I feel that there isn’t really any type of substantial showing at all of the
use of preemptories [sic] based upon race. So I find there is not a prima facie
showing. The prosecution had the right to excuse these individuals for reasons
other than race.
And it seems to me that even without inquiring of the prosecution as to the
specifics, one can pretty well see on the face of the information that was
presented by the jurors that race is not an issue that caused them to be
excluded.

22
23

(RT 2789-90.)

24

After trial, but prior to the California Supreme Court’s adjudication of this issue on

25

direct appeal, the United States Supreme Court issued Johnson, which struck down

26

California’s “more likely than not” standard for determining if a defendant has established

27

a prima facie case of discrimination in jury selection, and reaffirmed that “a defendant

28

satisfies the requirements of Batson’s first step by producing evidence sufficient to permit
34
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1

the trial judge to draw an inference that discrimination has occurred.” Johnson, 545 U.S.

2

at 170.

3

The California Supreme Court acknowledged that the trial court’s decision was

4

made prior to Johnson, and accordingly did not render a decision on whether the trial court

5

had applied the correct standard, but instead explicitly stated that the adjudication of

6

Petitioner’s claim would be based on the state supreme court’s own application of Johnson,

7

as follows:

8

14

But as we have held in analyzing Batson/Wheeler claims, “[r]egardless of the
standard employed by the trial court, and even assuming without deciding that
the trial court’s decision is not entitled to deference, we have reviewed the
record and, like the United States Supreme Court in Johnson ... [we] are able
to apply the high court’s standard and resolve the legal question whether the
record supports an inference that the prosecutor excused a juror on the basis
of race.” (Cornwell, supra, 37 Cal.4th at p. 73, 33 Cal.Rptr.3d 1, 117 P.3d
622, italics omitted; Guerra, supra, 37 Cal.4th at p. 1101, 40 Cal.Rptr.3d 118,
129 P.3d 321.)

15

Hoyos, 41 Cal. 4th at 901 (brackets in original); see also id. at 901 n. 15 (declining to

16

address Petitioner’s argument that the trial court decision was not entitled to deference due

17

to the trial court’s consideration that the jury also contained two Black jurors, again stating

18

“our conclusion that defendant did not make a prima facie showing is based on our review

19

of the record, not on deference to the trial court’s ruling or reasoning.”)

9
10
11
12
13

20

Petitioner asserts that the California Supreme Court’s decision was unreasonable

21

because “[t]he CSC, with the benefit of Johnson- equally ignored petitioner’s evidence of

22

statistical disparity, and instead erroneously and unreasonably proceeded ‘to affirm the

23

(trial court’s) ruling where the record suggests grounds upon which the prosecutor might

24

reasonably have challenged the jurors in questions,’ [sic] Hoyos, 41 Cal. 4th 873, 900.”

25

(Reply at 4.) The section of the direct appeal opinion to which Petitioner refers is at the

26

outset of the California Supreme Court’s discussion of the Batson claim, where the state

27

supreme court simply recited the general standard usually employed when reviewing a trial

28

court’s decision. However, in evaluating Petitioner’s claim, the California Supreme Court
35
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1

explicitly stated that it would conduct its own analysis as to whether a prima facie case had

2

been made.6 Thus, contrary to Petitioner’s assertion, the state supreme court did not simply

3

review the record for grounds upon which to affirm the trial court’s ruling.

4

Instead, the California Supreme Court correctly recognized and articulated the

5

controlling Supreme Court authority set forth in Johnson, and stated that it would itself

6

review the record and independently determine “whether the record supports an inference

7

that the prosecutor excused a juror on the basis of race.” Compare Hoyos, 41 Cal. 4th at

8

901 with Johnson, 545 U.S. at 170 (“[A] defendant satisfies the requirements of Batson’s

9

first step by producing evidence sufficient to permit the trial judge to draw an inference

10

that discrimination has occurred.”)

11

The California Supreme Court specifically addressed Petitioner’s statistical

12

arguments,7 recounting that “trial counsel sought to establish a prima facie case of

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Contrast Hoyos, 41 Cal. 4th at 901 n.15 (“[O]ur conclusion that defendant did not
make a prima facie showing is based on our review of the record, not on deference to the
trial court’s ruling or reasoning.”), with Currie v. McDowell, 825 F.3d 603, 608-09 (9th
Cir. 2016) (“[T]he state appellate court violated clearly established federal law in its Batson
step one analysis by affirming because ‘the record suggest[ed] grounds upon which the
prosecutor might reasonably have challenged the jurors in question,’ whether or not those
were the reasons proffered,” where the state appellate court held that “[s]ubstantial
evidence supports the trial court’s stated conclusion that [the juror] was not a desirable
panelist for the prosecution because she had two relatives who had been arrested for drug
offenses, and that consequently, no prima facie case had been made,” and additionally
holding that the state court’s alternative Batson step three analysis was unreasonable under
§ 2254(d)(2).))
6

On direct appeal, Petitioner also raised the following contention: “In the alternative,
defendant claims that the fact that all three struck jurors were Hispanic women supports a
prima facie case of discrimination against Hispanic women as a cognizable class.” Hoyos,
41 Cal. 4th at 901. The California Supreme Court rejected this argument. Id. at 903. To
the extent Petitioner renews this assertion in the instant Petition, he fails to demonstrate
that the California Supreme Court adjudication was contrary to, or an unreasonable
application of, any clearly established federal law, given that “neither the Supreme Court
nor the Ninth Circuit has recognized that the combination of race and gender, such as ‘black
7

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1

discrimination solely on the circumstance that the prosecutor struck three individuals of

2

Hispanic ancestry, and that defendant was of the same ancestry. On appeal, defendant

3

contends that a prima facie case is established because the prosecutor struck three of the

4

only four Hispanics called to serve on the jury.” Hoyos, 41 Cal. 4th at 901. The California

5

Supreme Court then stated that “although a prosecutor’s excusal of all members of a

6

particular group may establish a prima facie discrimination case, especially if the defendant

7

belongs to the same group, this fact alone is not conclusive.” Id. The state supreme court

8

noted that not all prospective Hispanic jurors had been excused from Petitioner’s jury

9

venire,8 that “the record discloses race-neutral grounds for the prosecutor’s peremptory

10

challenges,” and proceeded to discuss those reasons. Id. at 901-03.

11

Thus, Petitioner’s argument that the California Supreme Court “ignored petitioner’s

12

evidence of statistical disparity” is not supported by the record. The California Supreme

13

Court explicitly acknowledged Petitioner’s argument, but was unpersuaded that Petitioner

14

demonstrated a prima facie case. This conclusion was not unreasonable, given the de

15

minimus nature of Petitioner’s statistical showing. “Although a pattern of strikes against

16

17
18
19
20
21
22
23
24
25
26
27
28

males,’ may establish a cognizable group for Batson purposes.” Turner, 63 F.3d at 812,
overruled on other grounds by Tolbert, 182 F.3d 677.
As noted above, the record reflects that five, not four, Hispanic individuals were
called to serve on Petitioner’s jury and subject to potential peremptory challenges. (RT
2787.) While the trial prosecutor stated that it would not be “proper” to consider the fifth
individual, an alternate called to serve after the third peremptory challenge (id.), the record
further reflects that juror M.A. was the sole subject of the defense’s initial motion; when
the trial court stated an intention to hear the motion “at a later time” counsel stated that “I
was thinking also of making the same objection for the excusing of [L.H.].” (RT 2752.) It
was only after all of the jurors and alternate jurors had been selected and sworn that defense
counsel added L.H. and Y.M. to the Batson/Wheeler motion. (See RT 2749, 2758 (jurors
and alternates sworn); RT 2762.) As such, if the Court considers Y.M. in this analysis,
who was challenged after the initial motion, it appears reasonable to at least note that there
was also an additional Hispanic juror seated after the initial motion, particularly in light of
the fact that this alternate juror actually ended up serving on Petitioner’s jury, replacing a
juror who was excused for sleeping during trial. (See RT 3831; CT 3540.)
8

37
09cv0388 L (NLS)

1

[a minority group] provides support for an inference of discrimination, [Petitioner] must

2

point to more facts than the number of [minority group members] struck to establish such

3

a pattern.” Williams v. Woodford, 384 F.3d 567, 584 (9th Cir. 2002) (internal citation

4

omitted). Petitioner offers little aside from the fact that three Hispanic jurors were subject

5

to peremptory challenges; while the Court can count the number of juror questionnaires to

6

ascertain how many prospective jurors were in the venire after hardship excusals (assuming

7

that all juror questionnaires were retained), the record does not disclose how many

8

Hispanic jurors were in the venire as a whole, rendering incomplete any attempt to

9

determine whether there was a statistical disparity. See id. (“[B]ecause [Petitioner] failed

10

to allege, and the record does not disclose, facts like how many [group members] sat on

11

the jury, how many [group members] were in the venire, and how large the venire was, it

12

is impossible to say whether any statistical disparity existed that might support an inference

13

of discrimination.”)

14

Petitioner also argues that the California Supreme Court erred in considering the trial

15

record and the possible reasons for excusing the three prospective jurors at issue, given the

16

existence of authority, including Williams v. Runnels, 432 F.3d 1102 (9th Cir. 2006) and

17

Johnson, criticizing such speculation. (SAP at 15-17.) In Johnson, the Supreme Court

18

indeed stated that: “The inherent uncertainty present in inquiries of discriminatory purpose

19

counsels against engaging in needless and imperfect speculation when a direct answer can

20

be obtained by asking a simple question.” Johnson, 545 U.S. at 172, citing Paulino v.

21

Castro, 371 F.3d 1083, 1090 (9th Cir. 2004) (“[I]t does not matter that the [prosecutor

22

might have had good reasons . . . [;] [w]hat matters is the real reason they were stricken”);

23

see also Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (“A Batson challenge does not call

24

for a mere exercise in thinking up any rational basis.”)

25

However, the situations presented are distinguishable, as the defendants in those

26

cases had already established an inference of discrimination based on the statistical

27

showing alone, satisfying Batson’s first step, while the California Supreme Court, applying

28

Johnson, held that Petitioner had not done so in this case. For instance, in Williams, the
38
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1

Ninth Circuit conducted a de novo review9 of Williams’ Batson claim, finding a statistical

2

disparity sufficient to satisfy the first Batson step where the prosecutor used three of his

3

first four peremptory challenges to remove Black jurors from the venire and only four of

4

the first forty-nine prospective jurors were Black, and stated that “to rebut an inference of

5

discriminatory purpose based on statistical disparity, the ‘other relevant circumstances’

6

must do more than indicate that the record would support race-neutral reasons for the

7

questioned challenges.” Id. at 1108. Similarly, in Johnson, despite three peremptory

8

challenges against minority jurors each resulting in a defense objection, which prompted

9

the trial court’s comments that “we are very close” under California’s “more likely than

10

not” standard, and the California Supreme Court’s comment that the excusals “certainly

11

looks suspicious,” the United States Supreme Court criticized the procedure where “[t]he

12

trial judge still did not seek an explanation from the prosecutor. Instead, she explained that

13

her own examination of the record had convinced her that the prosecutor’s strikes could be

14

justified by race-neutral reasons.” Id., 545 U.S. at 165-66. The Johnson Court explained

15

that “[t]he Batson framework is designed to produce actual answers to suspicions and

16

inferences that discrimination may have infected the jury selection process.” Id. at 172. In

17

both cases, once the defendant had established a prima facie inference of discrimination, it

18

was incumbent for the court to discern the real reasons for the peremptory challenges, and

19

to not rely on speculation in its stead. But a defendant must first establish that an inference

20

of discrimination exists, which is the very standard the California Supreme Court applied.

21
22
23
24
25
26
27
28

9

Petitioner’s case is further distinguishable on this basis, as the Ninth Circuit

conducted a de novo review in Williams because the state court applied the “strong
likelihood standard” in reviewing the Batson claim. See Williams, 432 F.3d at 1105; see
also Shirley v. Yates, 807 F.3d 1090, 1101 (9th Cir. 2015) (agreeing with district court’s
finding that state appellate court “acted contrary to clearly established law when it ‘based
its prima facie analysis on the discredited pre-Johnson, standard articulated by the
California Supreme Court in People v. Box. . .’”); Johnson v. Finn, 665 F.3d 1063, 106869 (9th Cir. 2011) (same). Unlike in those cases, the California Supreme Court specifically
cited and applied Johnson in deciding Petitioner’s claim.
39
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1

In rendering its decision in this case, the California Supreme Court repeatedly cited People

2

v. Cornwell, 37 Cal. 4th 50 (2005), which referenced Johnson in discussing the relevant

3

standard, as follows:

4
5
6
7

Once the trial court concludes that the defendant has produced evidence
raising an inference of discrimination, the court should not speculate as to the
prosecutor’s reasons- it should inquire of the prosecutor, as the high court
directed. But there is still a first step to be taken by the defendant, namely
producing evidence from which the trial court may infer ‘that discrimination
has occurred.’

8
9
10

Cornwell, 37 Cal. 4th at 73-74, quoting Johnson, 545 U.S. at 170, overruled on other
grounds by People v. Doolin, 45 Cal. 4th 390, 421 n. 22 (2009).

11

The United States Supreme Court has also specifically stated that: “In deciding

12

whether the defendant has made the requisite showing, the trial court should consider all

13

relevant circumstances.” Batson, 476 U.S. at 96. “For example, a ‘pattern’ of strikes

14

against black jurors included in the particular venire might give rise to an inference of

15

discrimination. Similarly, the prosecutor’s questions and statements during voir dire

16

examination and in exercising his challenges may support or refute an inference of

17

discriminatory purpose.” Id. at 97; see also United States v. Collins, 551 F.3d 914, 921

18

(9th Cir. 2009) (“[T]he fact that the prosecutor fails to ‘engage in meaningful questioning

19

of any of the minority jurors’ might indicate the presence of discrimination.”), quoting

20

Fernandez, 286 F.3d at 1079. In light of this authority approving consideration of the

21

record in determining whether a defendant has made a prima facie showing of

22

discrimination, and because the cases Petitioner relies upon are distinguishable from the

23

situation presented here given his failure to establish an inference of discrimination based

24

on the statistical showing alleged, the Court is unable to conclude that the California

25

Supreme Court’s consideration of the record was erroneous or unreasonable.

26

Petitioner also contends that the California Supreme Court’s decision was based on

27

an unreasonable determination of the facts. Petitioner argues that the state court, in

28

discussing the jurors’ answers in the questionnaires and voir dire responses, misstated or
40
09cv0388 L (NLS)

1

mischaracterized the challenged jurors’ statements or positions. (Reply at 11-12, 15-16,

2

20-22.) For the reasons discussed below, this argument is similarly unpersuasive.

3

With respect to prospective juror L.H., Petitioner contends that the state court’s

4

“characterization of her as ‘at best’ somewhat ‘equivocal about the death penalty,’ and ‘at

5

worst’ ‘biased against it’ is contradicted by the record,” and the state court also

6

unreasonably failed to acknowledge that the juror’s answers during voir dire clarifying her

7

positions “at least on its face negated any inference of bias from her earlier answers.” (Id.

8

at 16.) The record reflects that L.H. wrote in her questionnaire that: “I believe in the death

9

penalty (and the justice system) but only in certain instances. Although I am not certain

10

what benefit it does for society by executing someone. Life imprisonment may even be

11

harsher in some aspects. The threat of the death penalty does not seem to effect [sic]

12

people.”

13

punishment, and “used to believe any/every murderer deserved the death penalty (except

14

self-defense). I no longer hold this thought.” (RT 5580.) During voir dire, the trial court

15

asked about her feelings on capital punishment, to which she stated: “Well, I tend to side

16

with the life in prison as opposed to the death penalty,” but stated that she could keep an

17

open mind. (RT 2376.) When the court asked if she could return a death penalty verdict

18

“if in that hypothetical case you were of a mind that the aggravating evidence so

19

substantially outweighed the mitigating evidence that death was in fact warranted” she

20

replied: “I’d have to be really convinced.” (RT 2376-77.) When asked again if she could

21

render a death penalty verdict, she answered: “I think I can, but I would have to be real

22

convinced that it outweighed it heavily.” (RT 2377.) When the prosecutor asked if she

23

would place a burden on the defense or prosecution to convince her of the appropriate

24

punishment, she stated: “Prosecution.” (RT 2413.) When the prosecutor stated that the

25

court instructed the prosecution did not have a burden in the penalty phase, she replied:

26

“Well, I guess I answered that incorrectly. I would have to be convinced of the evidence,

27

of everything all together. That’s what I mean.” (RT 2413.) L.H. then agreed she could

28

vote for either penalty, depending on which she felt was appropriate, and stated: “If it meets

(CT 5579.)

L.H. wrote that she had “softened” in her views on capital

41
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1

all the aggravating items that are necessary, I would make that decision then.” (RT 2414.)

2

Based on a review of the record, the California Supreme Court’s conclusions did not

3

constitute an unreasonable determination of the facts, as L.H. stated at various times that

4

she would have to be “convinced,” “real convinced” or “really convinced” to vote for the

5

death penalty and that she leaned towards life in prison as a potential punishment,

6

demonstrating at a minimum her equivocal feelings about capital punishment.

7

With respect to Y.M., Petitioner asserts that the state court’s characterization “is

8

repudiated by the record,” and that the state court “exaggerated” and “substantially

9

overstates” her voir dire answers in reporting that she stated “she could not return a death

10

sentence,” given that the trial court had denied the prosecution’s challenge for cause and

11

found that she could follow the court’s instructions. (Reply at 20-22.) Petitioner argues

12

that “the CSC’s failure to acknowledge and address the trial court’s factual finding renders

13

its ruling ‘an unreasonable determination of the facts in light of the evidence presented in

14

the State court proceeding.’” (Id. at 22.)

15

A review of Y.M.’s questionnaire and voir dire responses and the trial court’s

16

statements during the Batson hearing do not support Petitioner’s argument.

17

questionnaire, Y.M. wrote that the death penalty is a “scary thought, but I believe in each

18

individual case, given certain facts it is a punishment that should be done.” (CT 5465.)

19

However, she also indicated that she did not want to be a juror in the case, and wrote: “I

20

don’t feel I could be part of a jury, if they impose the death penalty.” (CT 5468.) Y.M.

21

continued to voice her reservations during jury selection as, during voir dire questioning

22

by the trial court, Y.M. stated that: “I just have strong religious beliefs deep down inside.

23

That’s just the way I feel, that it actually shouldn’t happen,” and stated that: “I just don’t

24

feel I would be able to judge somebody feeling that way.” (RT 2023.) In view of these

25

statements, the California Supreme Court was not unreasonable in finding that during voir

26

dire, Y.M. “stated she had strong religious beliefs against the death penalty and she could

27

not return a death sentence.” Hoyos, 41 Cal. 4th at 903. During questioning by defense

28

counsel, Y.M. later said that she thought she could put aside her religious reservations,

In the

42
09cv0388 L (NLS)

1

stating: “I feel strong about it, but I could put them aside.” (RT 2064.) When the

2

prosecutor asked about her views, Y.M. stated: “I still feel like it’s strong in me, but I feel

3

like I could still make the decision,” and when again asked about her ability to put aside

4

her feelings, she said: “I feel like if I did sit, I am strong enough to put it aside.” (RT 2069-

5

70.)

6

When the trial court denied the prosecution’s challenge for cause, Petitioner is

7

correct that the trial court stated: “She wouldn’t like it, but she will follow the instructions

8

and if called upon can serve as a juror in this case.” (RT 2075.) Later, during the Batson

9

hearing, the trial court stated that Y.M. “indicated to the court both in her questionnaire

10

[sic] that she, in fact, had a conscientious objection to the death penalty. She indicated

11

orally she would be able to keep an open mind,” and that “[t]he prosecution has a right to

12

exercise preemptories [sic] as to individuals who have feelings pro or con so far as the

13

death penalty is concerned.” (RT 2789.) Thus, again, based on a review of the record, the

14

California Supreme Court’s statement that “[t]he trial court denied the prosecutor’s for

15

cause challenge of Y. M., but allowed the prosecutor to exercise a peremptory challenge

16

against Y. M. after finding that Y. M. had strong feelings against the death penalty,”

17

(Hoyos, 41 Cal. 4th at 903), was not unreasonable.

18

With respect to prospective juror M.A., Petitioner contends that the state supreme

19

court “made no reference to the facts in the record that under the applicable case law belied

20

the bona fides of the reason attributed to the prosecutor,” and argues that the prosecutor’s

21

failure to question M.A. about her English skills and the California Supreme Court’s failure

22

to note the trial court’s misstatements about the prospective juror’s language skills

23

impeding her ability to serve as a juror, each undermined that ground as a reason for the

24

peremptory challenge under Miller-El. (Reply at 12-13.) Petitioner’s reliance on Miller-

25

El is misplaced in this regard. In Miller-El, when the prosecutor was confronted with the

26

fact that his stated reason for a peremptory strike was based on a misrepresentation of the

27

prospective juror’s position, the prosecutor “suddenly came up with” a separate reason for

28

the strike. Miller-El, 545 U.S. at 245. The Supreme Court declined to accept this new
43
09cv0388 L (NLS)

1

reason for the challenge, stating it “reeks of afterthought” and noting as significant that the

2

prosecutor failed to question the juror in any detail on that matter and finding that a review

3

of the juror’s entire voir dire revealed that he “should have been an ideal juror in the eyes

4

of a prosecutor seeking a death sentence, and the prosecutors’ explanation for the strike

5

cannot reasonably be accepted.” Id. at 245-47.

6

Here, a review of the record reveals that each small group of prospective jurors were

7

questioned in turn by the trial court, each defense counsel and the prosecutor. When the

8

group containing M.A. was questioned, the trial court went first and asked M.A. numerous

9

questions about her English proficiency, given the concerns she noted in the written

10

questionnaire. For instance, M.A. wrote on her questionnaire that she had “por [sic]

11

English” and checked a box indicating that she had trouble speaking or understanding

12

English. (CT 5666.) She also indicated that she would not like to serve as a juror on the

13

case, writing “Not Enough English.” (CT 5677.) M.A. also failed to date or sign her

14

written questionnaire. (Id.) When the trial court asked about her concerns, she stated: “I

15

don’t speak English that well and I don’t understand a lot of words that you are saying. So

16

that’s what I think.” (RT 1932.) M.A. agreed that she was able to understand the written

17

questionnaire, could interrupt and ask if she did not understand something during the

18

proceedings, and could follow the court’s instructions. (RT 1933.) Petitioner’s counsel

19

questioned the jurors after the trial judge, and asked M.A. numerous questions about her

20

language abilities. M.A. agreed that she recalled the court’s instructions included the word

21

aggravating, and when asked to define it, stating “I know what it means, but I don’t know

22

how to describe it,” and similarly stated “I can’t” when asked to describe what mitigating

23

meant. (RT 1953-54.) Co-defendant’s counsel questioned the jurors next and stated that

24

he would “skip some of you,” citing the questionnaires and prior voir dire, stating: “There

25

are a lot of questions both written and oral, and as we get to me I have fewer than were

26

asked before.” (RT 1970.) He did not question M.A. (RT 1970-78.) The prosecutor asked

27

questions last, and upon addressing the group, stated that: “As [defense counsel] said, the

28

questions dwindle and dwindle and dwindle,” similarly noting that he would be “skipping
44
09cv0388 L (NLS)

1

some” jurors in his questioning. (RT 1978-79.) The prosecutor did not question M.A. (RT

2

1979-89.) The trial court then asked M.A. a few additional questions, asking again if she

3

could interrupt trial proceedings if she did not understand, to which she stated: “I don’t

4

know. I get real nervous when I come to English. I think I be very nervous then. I try to

5

speak.” (RT 1991.) When asked if she might just “let it kind of pass” instead of speaking

6

up when she did not understand, M.A. responded that: “I probably will, yes.” (Id.)

7

When the trial court asked if counsel had any challenges for cause, Petitioner’s

8

counsel immediately challenged M.A., referencing her mention of “por English” and her

9

lack of written response throughout the majority of the questionnaire. (RT 1999-2000.)

10

Counsel acknowledged that M.A. appeared to “understand[] more than she can describe,”

11

but argued that “no matter what she understands, she couldn’t communicate that to other

12

jurors in deliberations and would be likely to be intimidated or a-non [sic] entity in

13

deliberations.” (RT 2000.) The prosecutor joined in the challenge for cause, agreeing with

14

the reasons stated by defense counsel and additionally referencing the numerous spelling

15

mistakes throughout M.A.’s written questionnaire and pointing out her failure to sign or

16

date it. (RT 2001-02.) The trial court responded: “The questionnaire is filled with spelling

17

errors, but that’s not a challenge for cause. She was unable to define certain legal terms;

18

that doesn’t constitute a challenge for cause, frankly. She seemed to be relatively articulate

19

in response to questions. She said she would be hesitant or reluctant to interrupt if she

20

didn’t understand something,” but noted that many jurors would be similarly hesitant,

21

which was the reason the court had a procedure allowing the jurors to ask questions via

22

notes. (RT 2002-03.) The trial court denied the challenge, stating: “You will have to deal

23

with that on your preemptories [sic].” (RT 2003.) The Court is not persuaded that the

24

prosecutor’s failure to specifically question M.A. about her language abilities undermines

25

this reason as a basis for the challenge. Contrary to the situation presented in Miller-El, it

26

is obvious that both Petitioner’s defense counsel and the prosecutor were concerned about

27

this juror’s English skills and ability to understand the proceedings and communicate with

28

the other jury members. Moreover, the trial court, in denying the challenge for cause,
45
09cv0388 L (NLS)

1

stated that in order to excuse the juror, counsel would need to use a peremptory challenge.

2

Petitioner has not demonstrated that the California Supreme Court’s decision was based on

3

an unreasonable determination of the facts, as the record reflects that M.A. repeatedly

4

expressed concerns, in both her written questionnaire and during voir dire, that her English

5

skills would hinder her ability to serve as a juror. (See e.g. CT 5666, 5677; RT 1932-33.)

6

Finally, Petitioner asserts that the California Supreme Court erred in failing to

7

conduct a comparative juror analysis, and asserts that: “If the CSC [California Supreme

8

Court] had undertaken that form of review, it would have revealed that three of the seated

9

jurors articulated reservations about the death penalty equivalent to those of struck jurors

10

L.H. and Y.M.” (Reply at 27.) A comparative juror analysis involves “an examination of

11

a prosecutor’s questions to prospective jurors and the jurors’ responses, to see whether the

12

prosecutor treated otherwise similar jurors differently because of their membership in a

13

particular group.” Boyd v. Newland, 467 F.3d 1139, 1145 (9th Cir. 2004).

14

Petitioner points to the questionnaire and voir dire responses of jurors J.C., K.T.,

15

D.R. and B.E., asserting that these four jurors expressed reservations about the death

16

penalty similar to those articulated by L.H. and Y.M., and the California Supreme Court’s

17

failure to engage in this analysis demonstrates “another procedural failing under the clearly

18

established federal law of Miller-El, supra.” (Reply at 27; see also SAP at 16.) To the

19

extent Petitioner asserts that the California Supreme Court’s failure to conduct a

20

comparative juror analysis warrants de novo review of his claim, the Ninth Circuit has

21

rejected such a contention. See Jamerson v. Runnels, 713 F.3d 1218, 1224 n.1 (9th Cir.

22

2013) (stating that the Ninth Circuit “has already addressed and rejected” the petitioner’s

23

argument that the reviewing court “should review his claim de novo because the state

24

courts unreasonably applied clearly established federal law when they declined to conduct

25

a comparative juror analysis.”), citing Cook v. LaMarque, 593 F.3d 810, 816 & n.2 (9th

26

Cir. 2010).

27

The Ninth Circuit has held that “[c]omparative juror analysis is an established tool

28

at step three of the Batson analysis for determining whether facially race-neutral reasons
46
09cv0388 L (NLS)

1

are a pretext for discrimination. In addition, comparative juror analysis may be employed

2

at step one to determine whether the petitioner has established a prima facie case of

3

discrimination.” Crittenden, 624 F.3d at 956 (internal and external citations omitted); see

4

also Boyd, 467 F.3d at 1149 (“[B]ecause comparative juror analysis assists a court in

5

determining whether the totality of the circumstances gives rise to an inference of

6

discrimination, we believe that this analysis is called for on appeal even when the trial court

7

ruled that the defendant failed to make a prima facie showing at the first step of the Batson

8

analysis.”)

9

Based on a review of the record, a comparative juror analysis does nothing to

10

undermine the reasonableness of the California Supreme Court’s findings and conclusions,

11

as the voir dire and questionnaire responses of the jurors Petitioner cites do not reveal that

12

those jurors possessed reservations about the death penalty similar to those held by

13

prospective jurors L.H. or Y.M.10

14

For instance, Petitioner asserts that juror J.C. voiced reservations about capital

15

punishment and “stated that the death penalty should be imposed only in ‘very serious

16

cases,’ such as ‘killing a president.’” (Reply at 27.) Petitioner stated that despite these

17

views, the prosecutor’s questions of that juror were “cursory.” (Id.) A review of the record

18

reveals that Petitioner’s characterization that J.C. stated he would “only” impose death

19

penalty in serious cases such as killing a president misstates both his questionnaire answers

20

and his voir dire responses. To a question posed in the written questionnaire asking: “Are

21

there any circumstances where a person convicted of murder should automatically receive

22
23

24

Petitioner does not offer a comparative analysis argument with respect to
prospective juror M.A., and the record fails to reveal any individual similar to M.A. who
served on Petitioner’s jury. Again, as both the prosecutor and Petitioner’s defense counsel
expressed concerns about M.A.’s English proficiency and unsuccessfully challenged her
for cause, to which the trial court stated that they would have to “deal with that” though
use of a peremptory challenge, the record clearly reflects this was the obvious reason M.A.
was excused from the venire.

25
26
27
28

10

47
09cv0388 L (NLS)

1

the death penalty?” J.C. wrote: “In the case of a crime againts [sic] the United States such

2

as the Rosenburgs [sic] spy trial or the killing of a president.” (CT 3701.) As this question

3

clearly asked whether the individual felt any crimes automatically warranted death penalty,

4

a contention that those were the “only” circumstances where he would consider the death

5

penalty is not supported by the record.

6

The record also reflects that the prosecutor’s questions were more than “cursory,” as

7

the prosecutor asked J.C. several questions about his views, including an inquiry into his

8

questionnaire response about when the death penalty was appropriate, and about the juror’s

9

ability to consider and follow the court’s instructions. (RT 1912-14.) During part of the

10

voir dire between the prosecutor and J.C., the juror reviewed his questionnaire at the

11

prosecutor’s behest and explained: “What I meant was I would weigh the evidence and

12

give the death penalty only in the case of a very serious crime. In other words, I wouldn’t

13

do it if some man just robbed a bank; I wouldn’t give him the death penalty unless he might

14

have killed someone in the process. Then I would weigh the evidence and decide what I

15

felt would be - - you know, what I think right for the crime.” (RT 1914.) Given that this

16

juror expressed a written belief that conviction of certain crimes warranted the automatic

17

imposition of the death penalty, that he clarified during voir dire that the death penalty was

18

indeed warranted for serious crimes, and explained that he would not give the death penalty

19

for a bank robbery “unless he might have killed someone in the process,” the Court finds

20

that J.C. did not express “reservations” about the death penalty similar to those raised by

21

L.H. or Y.M.

22

With respect to juror K.T., Petitioner states that she “wrote and affirmed that the

23

decision to impose death is an ‘enormous one’ that causes her ‘trepidation,’ but that the

24

prosecutor again only engaged in ‘cursory’ voir dire of her.” (Reply at 27.) K.T. indicated

25

in her written questionnaire that the decision to impose death was enormous, and wrote:

26

“Unfortunately for me, I’d be a good juror I think, but the idea fills me with trepidation.”

27

(CT 3742.) K.T. also noted that she used to believe the death penalty was unwarranted in

28

any instance, but now believed it was warranted in “certain instances.” (CT 3737-38.)
48
09cv0388 L (NLS)

1

While the prosecutor’s questioning of K.T. was brief, it was not “cursory,” as he asked if

2

the penalty decision was one she could make, to which she answered affirmatively, and

3

asked if she could decide someone’s fate and live with that decision, to which she also

4

answered yes and stated: “I could live with that.” (RT 2485.) The Court fails to see

5

similarities between K.T. and either Y.M. or L.H., as K.T. clearly stated that she could

6

impose the death penalty and did not indicate, as L.H. had, that she would have to be “really

7

convinced” to vote for it, nor did she indicate, like Y.M., that she would tend to vote for

8

the “other” rather than the death penalty. While it is apparent that K.T. was reasonably

9

concerned with the gravity of the penalty decision, the Court is not persuaded that she

10

expressed reservations about capital punishment similar to those mentioned by Y.M. or

11

L.H.

12

Petitioner also argues that juror D.R. “stated that the death penalty should be

13

reserved for ‘the worst of the worst,’” yet the prosecutor did not conduct any voir dire of

14

that juror. (Reply at 27.) A review of the record reflects that D.R., too, failed to express

15

reservations about the death penalty similar to those voiced by Y.M. or L.H. When D.R.

16

was asked about her views of the death penalty, she stated: “What I really believe is that

17

we have the death penalty, it’s parts of our law so it’s reserved for certain punishments and

18

it’s there and that’s what makes our system work. [] So yes, I feel very strongly in that way.

19

I feel very strongly that way; that it’s there to be used if the situation warrants the use of

20

the death penalty.” (RT 2613.) When asked if the death penalty was used too infrequently,

21

D.R. answered no, and the actual exchange with the court that Petitioner appears to refer

22

to was as follows:

23

Q:

Do you think it should be reserved for the very worst of the worst, so
to speak?

A:

It’s the worst penalty so I guess, you know, I would feel that way
because that’s as bad as it can get as a penalty.

24
25
26
27

(Id.) Thus, the record does not support a conclusion that D.R. articulated reservations about

28

imposing the death penalty. Indeed, D.R.’s questionnaire responses reveal that her views
49
09cv0388 L (NLS)

1

were actually opposite to those of Y.M. While Y.M. indicated that her reservations about

2

capital punishment stemmed from her deeply held religious beliefs, D.R. wrote in her

3

questionnaire that: “Being a practicing Catholic for the first half of my life I believed that

4

the taking of any life for any reason was wrong. I now feel that for certain crimes there are

5

some who do not deserve to live.” (CT 3643.) The Court fails to find similarities between

6

the views of D.R. and the excused jurors.

7

Finally, juror B.E. stated that the penalty decision “would be an extremely difficult

8

decision to make. But I feel that it’s a decision that would have to be made if the

9

proceedings got to that stage.” (RT 2526.) When B.E. was asked if he could be objective

10

in choosing between the penalty alternatives, he stated: “Yes, I do feel I could be.” (RT

11

2526-27.) A review of the record reflects that B.E., unlike Y.M. or L.H., did not express

12

reluctance or reservations about the possibility of voting for the death penalty.

13

comparison of Y.M. and L.H. with the non-Hispanic jurors who served do not demonstrate

14

similarity in either answers or views about their ability to vote for the death penalty. As

15

such, Petitioner’s assertion that a comparative analysis demonstrates that the prosecutor

16

treated non-Hispanic jurors with similar reservations about capital punishment differently

17

fails to find support in the record and does not support an inference of discrimination.

A

18

“The question under AEDPA is not whether a federal court believes the state court’s

19

determination was incorrect but whether that determination was unreasonable– a

20

substantially higher threshold.” Schriro, 550 U.S. at 473, citing Williams, 529 U.S. at 410.

21

Ultimately, as thoroughly discussed above, Petitioner fails to demonstrate that the

22

California Supreme Court’s adjudication of Claim 1 was either contrary to, or an

23

unreasonable application of, clearly established federal law, or that it was based on an

24

unreasonable determination of the facts. Accordingly, Petitioner is not entitled to habeas

25

relief on Claim 1.

26

///

27

///

28

///
50
09cv0388 L (NLS)

1

2.

Claim 2

2

In this claim, Petitioner asserts that the “trial court erred in refusing to excuse for

3

cause Jurors [R.L., P.G., M.N., S.K., and D.V.] based on the evidence in the trial record

4

that they were so strongly biased in favor of the death penalty that their ability to follow

5

the law was substantially impaired within the meaning of Wainright v. Witt, 469 U.S. 412

6

(1985).” (SAP at 18.) Petitioner also contends that the trial court erred in excusing

7

prospective jurors R.J. and R.A. for cause based on their feelings against the death penalty.

8

(Id. at 18-19.)

9
10
11
12
13
14
15
16
17
18
19
20
21
22

The California Supreme Court considered and rejected this claim on direct appeal in
a reasoned opinion, as follows:
Defendant contends the trial court erred in not excusing for cause five
prospective jurors who were biased in favor of the death penalty, and in
excusing for cause two prospective jurors he asserts were not biased, in
violation of Wainwright v. Witt (1985) 469 U.S. 412, 105 S.Ct. 844, 83
L.Ed.2d 841 and Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770,
20 L.Ed.2d 776. Defendant claims the trial court’s rulings violated his right to
trial by a fair and impartial jury under the Sixth and Fourteenth Amendments
to the United States Constitution. For the reasons discussed below, we
conclude that the trial court did not err in its rulings concerning the for-cause
challenges of prospective jurors, and that defendant’s constitutional rights
were not violated.
1. Denial of Defense’s For-cause Challenges
The defense unsuccessfully challenged for cause the following five
prospective jurors: R. L., P. G., S. K., M. N., and D. V.FN16 The defense later
removed Prospective Juror R.L. using a peremptory challenge. Prospective
Jurors P. G. and S. K. were chosen to sit as jurors.

23
24
25
26
27
28

FN16. For R. L., S. K., M. N. and D. V., both defendant’s
trial counsel and Alvarado’s trial counsel joined in the for-cause
challenges. For P. G., Alvarado’s trial counsel made a challenge
for cause, but defendant’s trial counsel stated he was not
challenging P. G. for cause. We do not consider the claim as to
P. G. forfeited, however, because failure to object does not forfeit
a Witt/Witherspoon claim on appeal. (People v. Schmeck (2005)
51
09cv0388 L (NLS)

1
2
3
4

37 Cal.4th 240, 262, 33 Cal.Rptr.3d 397, 118 P.3d 451
(Schmeck); People v. Velasquez (1980) 26 Cal.3d 425, 443, 162
Cal.Rptr. 306, 606 P.2d 341.) In addition, codefense counsel’s
challenge for cause alerted the trial judge to the possibility of
Witt/ Witherspoon error as to P. G. (See People v. Velasquez,
supra, 26 Cal.3d at 444, 162 Cal.Rptr. 306, 606 P.2d 341.)

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Preliminarily, the People contend that defendant has forfeited these
claims because his trial counsel did not exhaust his peremptory challenges.FN17
“‘To preserve a claim of trial court error in failing to remove a juror for bias
in favor of the death penalty, a defendant must either exhaust all peremptory
challenges and express dissatisfaction with the jury ultimately selected or
justify the failure to do so.’” (Guerra, supra, 37 Cal.4th at p. 1099, 40
Cal.Rptr.3d 118, 129 P.3d 321, quoting People v. Williams (1997) 16 Cal.4th
635, 667, 66 Cal.Rptr.2d 573, 941 P.2d 752.) Defendant does not dispute the
fact that his trial counsel neither exhausted his peremptory challenges nor
expressed dissatisfaction with the jury ultimately selected. Rather, he asserts
that our discussion in People v. Johnson, supra, 47 Cal.3d at pages 1220–
1221, 255 Cal.Rptr. 569, 767 P.2d 1047, concerning the dynamic nature of
the process of exercising peremptory challenges, somehow undermines the
exhaustion requirement. Defendant is mistaken. Our discussion in Johnson
addresses how a party with fewer remaining peremptory challenges might
exercise them more sparingly, but this does not relieve defendant of the
exhaustion requirement in order to preserve his claim. Alternatively,
defendant seeks to justify trial counsel’s failure to exhaust all peremptory
challenges by arguing that when counsel accepted the 12 jurors in the box, the
venire contained several prospective jurors who may well have been worse
than those in the box. Even assuming this argument could justify a failure to
exhaust his peremptory challenges, it is mere speculation on this record.
Defendant’s contentions of erroneous jury inclusion are therefore forfeited.

21
22
23
24
25
26
27

FN17. The defense exercised five of 20 available joint
peremptory challenges only, and defendant did not exercise any
of his five individual peremptory challenges.
Even if he did not forfeit his claims, defendant can show no error with
respect to the three prospective jurors who did not sit on the jury, that is, R.
L., M. N., and D. V.FN18 As to the two jurors who did sit on the jury, P. G. and
S. K., as discussed below, the trial court properly denied each of defendant’s
challenges for cause.

28
52
09cv0388 L (NLS)

1
2
3
4
5
6
7
8
9
10

FN18. “To establish that the erroneous inclusion of a juror
violated a defendant’s right to a fair and impartial jury, the
defendant must show either that a biased juror actually sat on the
jury that imposed the death sentence, or that the defendant was
deprived of a peremptory challenge that he or she would have
used to excuse a juror who in the end participated in deciding the
case.” (People v. Blair (2005) 36 Cal.4th 686, 742, 31
Cal.Rptr.3d 485, 115 P.3d 1145 (Blair), italics omitted.) The
defense removed R.L. with a peremptory challenge, but
defendant makes no argument that exercising a peremptory
challenge on R.L. deprived him of one that he would have used
to excuse a juror who participated in deciding the case (and
indeed he cannot make such an argument, given the number of
his remaining unused peremptory challenges). M.N. and D.V.
never even made it into the jury box.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The same analysis applies to claims involving erroneous juror
exclusion or inclusion. (See People v. Cunningham (2001) 25 Cal.4th 926,
975, 108 Cal.Rptr.2d 291, 25 P.3d 519.) “‘Applying Wainwright v. Witt,
supra, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 ..., we have stated
that “‘[i]n a capital case, a prospective juror may be excluded if the juror’s
views on capital punishment would “prevent or substantially impair” the
performance of the juror’s duties.’ [Citations.] ‘A prospective juror is properly
excluded if he or she is unable to conscientiously consider all of the sentencing
alternatives, including the death penalty where appropriate.’ [Citation.]” In
addition, “‘[o]n appeal, we will uphold the trial court’s ruling if it is fairly
supported by the record, accepting as binding the trial court’s determination
as to the prospective juror’s true state of mind when the prospective juror has
made statements that are conflicting or ambiguous.’ [Citations.]”’” (Blair,
supra, 36 Cal.4th at p. 743, 31 Cal.Rptr.3d 485, 115 P.3d 1145, quoting
People v. Jenkins (2000) 22 Cal.4th, 900, 987, 95 Cal.Rptr.2d 377, 997 P.2d
1044.)
a. Juror P. G.
During the trial court’s voir dire, P. G. stated he would be able to follow
the law and procedures in capital cases. He did not believe his feelings either
for or against the death penalty would affect his judgment. P. G. told defense
counsel he thought the state should reserve the death penalty for the most
brutal and severe crimes, but he did not have a specific list of such crimes in
mind. P. G. stated that if he found the torture allegation in the conspiracy count
53
09cv0388 L (NLS)

1
2
3
4
5
6

to be true, he could impose the death penalty and he would place the burden
on the defense in the penalty phase to produce evidence to get him to lean the
other way. But in response to the prosecutor’s questions, P. G. said he would
consider the factors the trial court read when making his determination about
the appropriate punishment, and he was not predisposed in the death penalty’s
favor based on the charges filed against the defendants. The record supports
the trial court’s conclusion that P. G. did not hold views that would prevent or
substantially impair the performance of his duties as a juror. (Blair, supra, 36
Cal.4th at p. 743, 31 Cal.Rptr.3d 485, 115 P.3d 1145.)

7
8

b. Juror S. K.

9

In his responses to the written questionnaire, S. K. indicated he thought
there were circumstances, such as a planned murder, where a defendant should
receive the death penalty automatically. During voir dire, S. K. confirmed his
responses to the questionnaire but acknowledged he made them before the
court instructed him about the two options in the penalty phase. S. K. noted
that he could separate his personal beliefs and his ability to consider both
sentencing options. He stated he would follow the court’s penalty instructions,
and that he would consider the alternative penalty of life without the
possibility of parole. S. K. responded to defense counsel that he understood
the trial court’s instruction that the law did not have a preference for the death
penalty and that its imposition was not automatic. He also stated he would
make his decision on penalty after listening to both sides.

10
11
12
13
14
15
16
17
18
19
20
21
22

Although the trial court concluded that S. K. gave equivocal answers,
the court was satisfied that S. K. was capable of fulfilling his juror
responsibilities. The record supports the trial court’s conclusion that S. K. did
not hold views that would prevent or substantially impair the performance of
his duties as a juror. (Blair, supra, 36 Cal.4th at p. 743, 31 Cal.Rptr.3d 485,
115 P.3d 1145.)
2. Granting of Prosecution’s For-cause Challenges

23
24
25
26

Defendant asserts the trial court erred in excusing two prospective
jurors, R. J., and R. A. for their alleged bias against the death penalty. We
discuss each claim below.
a. Prospective Juror R. J.

27
28

In his written questionnaire, R. J. noted that he was ambivalent about
54
09cv0388 L (NLS)

1
2
3
4
5
6
7
8
9
10

the death penalty, but denied having conscientious or other objections to it,
and indicated he would not automatically vote for life imprisonment. In his
voir dire examination, however, R. J. stated he was biased against the death
penalty and would not be able to listen to all the evidence in the penalty phase
with an open mind and return a verdict of death. The trial court granted the
prosecutor’s for-cause challenge to R. J., concluding his ability to sit as a fair
and impartial juror was substantially impaired due to his strong beliefs in
opposition to the death penalty. The record supports the trial court’s
conclusion that R. J. held views that would prevent or substantially impair the
performance of his duties as a juror. (People v. Schmeck, supra, 37 Cal.4th at
p. 262, 33 Cal.Rptr.3d 397, 118 P.3d 451.) Even if his statements are
considered conflicting or equivocal, the trial court’s determination of each
juror’s true state of mind is binding on us. (Ibid.)
b. Prospective Juror R. A.

11
12
13
14
15
16
17
18
19
20
21
22

In his written questionnaire, R. A. expressed equivocal views about the
death penalty. During the trial court’s voir dire, R. A. stated that his feelings
in opposition to capital punishment would not affect his judgment, and that he
was capable of keeping an open mind in order to impose a just punishment.
But during defense counsel’s questioning, R. A. observed that he did not think
he was ready to pass judgment in a capital case. In response to the prosecutor’s
voir dire, R. A. stated he would not impose the death penalty on a first time
murderer with special circumstances. He did observe that if a murderer were
to kill again after having been given a chance to rehabilitate, the death penalty
might be appropriate.
The prosecutor challenged R. A. for cause because he apparently would
not impose death on first-time murderers. The court granted the prosecutor’s
challenge. We find that the record supports the court’s conclusion that R. A.’s
views would prevent or substantially impair his ability to perform his juror
duties. (Schmeck, supra, 37 Cal.4th at p. 262, 33 Cal.Rptr.3d 397, 118 P.3d
451.)

23
24

Hoyos, 41 Cal. 4th at 903-07 (brackets in original).

25

“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel

26

of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). “[T]he proper

27

standard for determining when a prospective juror may be excluded for cause because of

28

his or her views on capital punishment . . . is whether the juror’s views would ‘prevent or
55
09cv0388 L (NLS)

1

substantially impair the performance of his duties as a juror in accordance with his

2

instructions and his oath.’” Wainwright v. Witt, 469 U.S. 412, 424 (1985), quoting Adams

3

v. Texas, 448 U.S. 38, 45 (1980).

4

The Supreme Court has stated that “whether a venireman is biased has traditionally

5

been determined through voir dire culminating in a finding by the trial judge concerning

6

the venireman’s state of mind.

7

determinations of demeanor and credibility that are peculiarly within a trial judge’s

8

province. Such determinations were entitled to deference even on direct review; ‘[t]he

9

respect paid such findings in habeas proceeding certainly should be no less.’” Witt, 469

10

U.S. at 428, quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984) (footnote omitted)

11

(bracket in original); see also Uttecht v. Brown, 551 U.S. 1, 9 (2007) (“Deference to the

12

trial court is appropriate because it is in a position to assess the demeanor of the venire,

13

and of the individuals who compose it, a factor of critical importance in assessing the

14

attitudes and qualifications of potential jurors.”)

We also noted that such a finding is based upon

15

Even if the Court assumes, without deciding, that Petitioner preserved this claim

16

despite his failure to either exhaust his allotment of peremptory challenges or object to the

17

ultimate composition of the jury, it is clear, for the following reasons, that the California

18

Supreme Court’s rejection of this claim was reasonable and the trial court’s conclusions

19

find ample support in the state record. See Witt, 469 U.S. at 434 (“[T]he question is not

20

whether a reviewing court might disagree with the trial court’s findings, but whether those

21

findings are fairly supported by the record.”), citing Marshall v. Lonberger, 459 U.S. 422,

22

432 (1983).

23

A.

Jurors P.G. and S.K.

24

Of the five venire members at issue in this aspect of the claim, only P.G. and S.K.

25

sat on Petitioner’s jury. (CT 3516.) Petitioner explains that he “cites the trial court’s error

26

as to R.L., M.N., and D.V. to show that the trial court had an incorrect standard for

27

determining defense challenges for cause, and made multiple errors in accordance with that

28

erroneous standard,” and asserts that “[t]he prejudice comes from the fact that P.G. and
56
09cv0388 L (NLS)

1

S.K. who were removable for cause did sit on the jury ‘as finally composed.’” (Pet. Brief

2

at 7.) The Court’s review will center on the impartiality or bias of P.G. and S.K., the two

3

individuals who actually sat on Petitioner’s jury. See Dyer v. Calderon, 151 F.3d 970, 973

4

(9th Cir. 1998) (en banc) (“The Sixth Amendment guarantees criminal defendants a verdict

5

by impartial, indifferent jurors. The bias or prejudice of even a single juror would violate

6

[Petitioner’s] right to a fair trial.”); see also Ross v. Oklahoma, 487 U.S. 81, 86 (1988)

7

(“Any claim that the jury was not impartial, . . . must focus . . . on the jurors who ultimately

8

sat.”)

9

Petitioner argues that Juror P.G. was biased because he indicated that if he found

10

Petitioner guilty of murder and torture, he would lean towards the death penalty and place

11

the burden on the defense to show that life in prison was warranted instead of the death

12

penalty. (SAP at 20-21; Reply at 33.) Defense counsel challenged P.G. for cause “based

13

on after finding a defendant guilty of murder, he would lean towards the death penalty,”

14

and argued that “he’s the type of juror that would put the burden on the defense.” (RT

15

1919.) The trial court indicated that he would review the transcript before deciding on the

16

challenge to P.G. (RT 1920.) The trial court later denied defense counsel’s challenge for

17

cause, finding P.G. was one of a group of jurors who “in many cases gave equivocal

18

answers, but I am satisfied and comfortable that each of these jurors is capable of fulfilling

19

they’re [sic] responsibility as far as being fair and impartial, notwithstanding any feelings

20

they have concerning the topics covered orally or in writing.” (RT 2006, 2645.) P.G.

21

served on Petitioner’s jury. (RT 2645; CT 3516.)

22

A review of the trial record reveals that while P.G. agreed he would “lean” towards

23

the death penalty if he found Petitioner guilty and found a torture allegation to be true,

24

counsel’s questioning also resulted in the following exchange in which P.G. clearly

25

indicated that he would evaluate the case on the evidence presented:

26

Q.

27
28

If that were your leaning, do you think there would be anything I could
say or do that would get you to lean the other way or lean straight up?

///
57
09cv0388 L (NLS)

1

A.

2

Well, I would have to judge it on the evidence presented which way I
would be leaning.

3

(RT 1909.) Meanwhile, earlier questioning by the trial court confirmed P.G.’s ability and

4

willingness to follow the law regardless of his own personal feelings:

5

Q.

Now you have heard me go over, at least on two occasions, some of the
rules of law that apply to capital cases. Do you feel capable of
following the law and the procedures that I have outlined for you?

A.

Yes, your Honor.

Q.

Would your feelings either for or against the death penalty in any way
affect your judgment in this case?

A.

I do not believe so.

6
7
8
9
10
11
12

(RT 1878.)

13

Based on a review of the entirety of the voir dire and giving deference to the judge

14

as required, it is clear that the trial court’s conclusion, that P.G. was able to be fair and

15

impartial despite his personal views, is “fairly supported” by the record. As such, the

16

California Supreme Court was not unreasonable in similarly concluding that: “The record

17

supports the trial court’s conclusion that P.G. did not hold views that would prevent or

18

substantially impair the performance of his duties as a juror.” Hoyos, 41 Cal. 4th at 905-

19

06.

20

With respect to Juror S.K., Petitioner relies largely on the written responses in the

21

juror questionnaire, in which S.K. answered yes to a question asking if every person who

22

committed a first-degree murder should automatically receive the death penalty, and wrote

23

that he viewed the death penalty as a punishment rather than a deterrent. (SAP at 21, citing

24

CT 3756, 3758.) Petitioner contends that S.K. restated those same beliefs during voir dire.

25

(SAP at 21; Reply at 32.) When defense counsel challenged S.K. for cause, the trial court

26

stated: “If one were simply looking at the questionnaire, there wouldn’t be any question

27

about whether he is substantially impaired. But my notes cause me to think that that was

28

clarified by oral testimony.” (RT 2006.) The trial court held a decision about S.K. in
58
09cv0388 L (NLS)

1

abeyance pending a review of the transcript. (Id.) After that review, the trial court declined

2

to excuse S.K., recognizing that juror, like P.G., was part of a group who “in many cases

3

gave equivocal answers, but I am satisfied and comfortable that each of these jurors is

4

capable of fulfilling they’re [sic] responsibility as far as being fair and impartial,

5

notwithstanding any feelings they have concerning the topics covered orally or in writing.”

6

(RT 2645.) S.K. was seated on Petitioner’s jury. (CT 3516.)

7

Upon review of the voir dire exchanges, it is apparent that the trial court’s decision

8

was supported by the record, as S.K. clearly stated that he could be objective and would

9

listen to both sides before making a decision, as well as indicated that his questionnaire

10

answers were made prior to the trial court’s instructions on the penalty decision, as follows:

11

Q.

12
13

According to your answers there were a couple of questions I wanted
to follow-up on.
Looking at question 70, the question is: “Do you feel that every
person who commits first degree murder should automatically receive
the death penalty?

14
15

And your response was: “If you take someone’s life, then they
have” - - I can’t read it exactly, but they have a right to expect justice,
something along those lines.
Would that be your present state of mind?

16
17
18
19

A.

I was trying to, without the instructions of the two ways to go - - yeah,
that is how I believe.

Q.

Okay.

A.

But I also tried to make it clear that I do think I can be objective also.

20
21
22
23
24

(RT 1940.) Upon additional query about his questionnaire response concerning automatic

25

death penalty for planned murders, S.K. clarified that: “I tried to make a distinction and

26

my personal beliefs are that the death penalty is something that needs to be implemented.

27

But I also tried to take that if I was instructed that there are now two choices and you have

28

to take the aggravating and mitigating circumstances, that I would also be able to do that.”
59
09cv0388 L (NLS)

1

(RT 1963.) When asked if he believed the death penalty should be a punishment option,

2

S.K. replied, “Absolutely.” (Id.) When asked if he could consider an alternative sentence

3

of life without parole, he also stated: “Yes, Absolutely.” (Id.) Counsel and S.K. then had

4

the following exchange:

5
6
7

Q.
And do you accept what the judge has told you so far, that the law has
no preference for the death penalty, that it is not automatic, no matter what?
A.

I understand that completely.

8

(RT 1964.) After additional questions, S.K. again affirmed that: “I’m going to listen to

9

both sides, make a decision from there.” (RT 1975.)

10

Here too, based on the Court’s review of the whole record, it is evident that the trial

11

court’s decision, made after acknowledging and considering both S.K.’s questionnaire

12

responses as well as his answers during voir dire, is “fairly supported” by the record.

13

Accordingly, the California Supreme Court reasonably concluded that: “Although the trial

14

court concluded that S. K. gave equivocal answers, the court was satisfied that S. K. was

15

capable of fulfilling his juror responsibilities. The record supports the trial court’s

16

conclusion that S. K. did not hold views that would prevent or substantially impair the

17

performance of his duties as a juror.” Hoyos, 41 Cal. 4th at 906.

18

B.

Prospective Jurors R.J. and R.A.

19

Petitioner also contends that he was deprived of his right to a fair and impartial jury

20

when the trial court erroneously excused prospective jurors R.J. and R.A. based on their

21

views concerning the death penalty. (SAP at 18-19.) Petitioner states “that conclusion is

22

refuted by the record,” argues that the state court unreasonably applied Witt, and asserts

23

that “[t]he erroneous excusal of otherwise qualified jurors is prejudicial error requiring

24

reversal of the judgment.” (Id., citing Gray v. Mississippi, 481 U.S. 648 (1987).)

25

“[A] sentence of death cannot be carried out if the jury that imposed or recommended

26

it was chosen by excluding veniremen for cause simply because they voiced general

27

objections to the death penalty or expressed conscientious or religious scruples against its

28

infliction.” Witherspoon v. Illinois, 391 U.S. 510, 522 (1968). Again, “the proper standard
60
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1

for determining when a prospective juror may be excluded for cause because of his or her

2

views on capital punishment . . . is whether the juror’s views would ‘prevent or

3

substantially impair the performance of his duties as a juror in accordance with his

4

instructions and his oath.’” Witt, 469 U.S. at 424, quoting Adams, 448 U.S. at 45. “The

5

nature of the jury selection process defies any attempt to establish that an erroneous

6

Witherspoon-Witt exclusion of a juror is harmless.” Gray, 481 U.S. at 665.

7

A review of the state record supports the trial court’s decision to excuse these two

8

individuals for cause.

9

ambivalent,” but did not hold views strongly objecting to the death penalty that would

10

render him unable to vote for it, nor would he automatically vote for life in prison. (CT

11

5484.) Petitioner concedes that R.J. “somewhat contradicted” his questionnaire responses

12

during later voir dire questioning. (SAP at 27.) When directly asked about his views, R.J.

13

indicated that he was against the death penalty, as follows:

14

In his questionnaire, R.J. indicated that he felt “somewhat

Q.

Now so far as capital punishment is concerned, how do you fit into this
spectrum of people who have strong feelings for or against capital
punishment?

A.

I have to say that I have feelings against capital punishment.

Q.

All right. You describe your feelings to some extent in response to
question number 63. Do you feel that your feelings are strong to the
point that they may affect your judgment in the case so far as penalty is
concerned?

A.

I think that they are, yes. It’s a very tough question. I understand, as I
indicated in my answer, I understand the - - I think I understand the
motivation for having the death penalty. I just don’t see that it
accomplishes anything.

15
16
17
18
19
20
21
22
23
24
25

So I would have to say that I am biased against it, and it probably
would affect my judgment in the penalty phase of the trial.

26
27

(RT 1879.) Following these questions, R.J. then expressly and clearly stated his inability

28

to vote for the death penalty:
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1

Q.

Are you capable of listening to all evidence presented in a penalty phase
with an open mind, and if, in fact, it were your belief that the evidence
in aggravation so outweighed the evidence in mitigation, that death
was, in fact, warranted, would you be capable under most
circumstances of returning a verdict of death?

A.

I don’t think that I would be. Honestly, I don’t think that I would be.

2
3
4
5
6

(RT 1880.)

7

Counsel attempted to rehabilitate R.J., noting that many people leaned one way or

8

another on the issue of capital punishment and that they sought those individuals who could

9

consider both penalties and keep an open mind. When counsel asked: “Do you think your

10

bias is so strong that that is impossible for you to do?,” R.J. replied: “I believe that it - - I

11

believe that it is. I mean I guess it sounds like I am on some kind of crusade or something.

12

I mean I have never really had to evaluate this death penalty question. Now that the chips

13

are sort of down, so to speak, looking at it honestly I just don’t think that I could sentence

14

someone to death because I just don’t see that it serves a purpose beyond vengeance. Lock

15

them up, throw away the key, that’s my attitude towards it. And I have to state it as such,

16

I can’t --” (RT 1893-94.) When asked once more if he could apply the law as instructed

17

despite his feelings on the matter, R.J. replied, “I think not.” (RT 1894-95.)

18

In response to the prosecutor’s challenge for cause, the trial court discussed R.J. at

19

length and in detail, stating that he found R.J. to be “a very thoughtful and candid

20

individual,” recalling that R.J. paused before his answers and clearly “gave thought” to his

21

responses, and concluding that “based upon what he said and the way he said it, I don’t

22

have any question in my mind that he holds strong beliefs in opposition to the death penalty

23

that would prevent him from following the law. He said so repeatedly. And I think his

24

ability to sit as a fair and impartial juror is substantially impaired as a result of those

25

beliefs.” (RT 1921.)

26

As the trial court’s conclusions were “based upon determinations of demeanor and

27

credibility that are peculiarly within a trial judge’s province,” they are entitled to deference.

28

Witt, 469 U.S. at 428. The California Supreme Court affirmed this decision accordingly,
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1

holding that the record supported the juror’s exclusion and reasonably concluding that

2

“[e]ven if his statements are considered conflicting or equivocal, the trial court’s

3

determination of each juror’s true state of mind is binding on us.” Hoyos, 41 Cal. 4th at

4

906-07.

5

In the questionnaire, R.A. wrote that “death penalty is sometimes is good, sometimes

6

it is a bad idea to punish a person who committed a serious crime. I say it’s bad because

7

killing people is a sin. We should give them a chance to live and hope that they will change.

8

[¶] But if they won’t change and start killing people again I believe death penalty is the

9

best penalty they should get.” (CT 4592.) R.A. explicitly indicated in his questionnaire

10

that he had an objection to the death penalty, referred back to his earlier written answer

11

multiple times, and also answered “yes” to a question asking if his opinion were such that

12

he would be “unable to impose the death penalty regardless of the facts.” (CT 4593.) Voir

13

dire exchanges only further confirmed R.A.’s views. When asked if he could return a

14

verdict of death or whether his views would affect his judgment on the issue, R.A. stated:

15

“I don’t know, sir. I am not sure.” (RT 2282.) R.A. and counsel later had the following

16

exchange:

17
18

Q.

What is that that you are concerned about?

A.

On this case, you know, I don’t think I’m ready for this to make a
decision since like capital crime right now, I don’t think, you know, I
can give you some judgment.

19
20
21

(RT 2302.) R.A. later reiterated his questionnaire response that he condoned the death

22

penalty only under very narrow circumstances, as follows:

23

Q.

And when you write killing people is a sin, do you also mean that if you
have to make a decision as to whether somebody lives or dies and you
choose and you vote that a person should die, that that would be a sin?

A.

Well, if it’s appropriate to kill a murderer and to stop him from killing
again, I think the death penalty should be necessary.

24
25
26
27
28

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(RT 2334.) When counsel attempted to clarify R.A.’s views, R.A. again reiterated these

2

beliefs:

3

Q.

In other words, you are going to be asked in the second trial whether or
not the defendants should live or die. You are either going to vote for
death or you are going to vote for life in prison without parole. [¶]
Could you vote for the death penalty if there is no evidence that they
have killed before?

A.

Well, if they are convicted for murder you should at least give them a
chance to live and give them a chance to change. Maybe, you know,
they will regret for what they have done. So I think it’s just necessary
to - -

4
5
6
7
8
9
10

(RT 2335.) Ultimately, R.A. clearly stated that he would not impose the death penalty

11

unless a murderer had killed again, after being given a chance at rehabilitation:

12

Q.

So you don’t believe or you do believe that the first time someone
would be convicted of murder with special circumstances, they should
automatically be given a chance to rehabilitate themselves or make
something of themselves even though they may spend time in prison?

A.

Right.

Q.

And you would not at any time impose the death penalty?

A.

No.

Q.

But if they were to kill again after given a chance, then you would say,
okay, I think the death penalty might be appropriate?

A.

Right.

13
14
15
16
17
18
19
20
21
22
23

(RT 2335-36.) The trial court later excused R.A. as part of a group of prospective jurors

24

that “as far as this Court’s opinion is concerned, are substantially impaired by virtue of

25

their feelings concerning the various topics that are raised in the questionnaire and orally

26

to the point that they would not be in a position to sit fairly and impartially and render a

27

judgment in this case in accord with the Courts [sic] instructions on the law.” (RT 2645.)

28

In light of R.A.’s statements, both in the questionnaire and during voir dire itself, that he
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1

held strong objections to the death penalty that would impair his ability to impose such a

2

punishment, and specifically that he would not impose the death penalty for murder unless

3

the individual had killed before, the trial court reasonably found R.A. to be substantially

4

impaired. The California Supreme Court reasonably concluded that “the record supports

5

the court’s conclusion that R. A.’s views would prevent or substantially impair his ability

6

to perform his juror duties.” Hoyos, 41 Cal. 4th at 907. In both instances, “[t]he trial

7

court’s finding of bias was made under the proper standard, was subject to § 2254(d), and

8

was fairly supported by the record.” Witt, 469 U.S. at 435.

9

The record amply supports the trial court’s conclusions with respect to Jurors P.G.

10

and S.K. Accordingly, Petitioner fails to demonstrate that the state supreme court’s

11

rejection of Claim 2 was either contrary to, or an unreasonable application of, clearly

12

established federal law, or that it was based upon an unreasonable determination of the

13

facts. Relief is not warranted on Claim 2.

14

3.

Claim 3

15

Petitioner asserts that the trial court erred when it “refused to instruct the jurors as

16

requested by the defense that they have a civic duty to serve as jurors and to subordinate

17

their personal views regarding the death penalty and other matters to their duty to follow

18

the law,” as outlined in Witherspoon, 391 U.S. at 522. (SAP at 30.)

19
20
21
22
23
24
25
26
27
28

The California Supreme Court considered and rejected this claim in a reasoned
opinion on direct appeal, as follows:
Defendant contends the trial court erred when it denied his motion in
limine requesting the court to admonish prospective jurors of their civic duty
to serve as jurors, and to set aside their personal views as to that duty in order
to follow the law. Defendant claims the trial court’s denial of his motion
contributed to the improper dismissal of qualified jurors, and violated his right
to an impartial jury, due process, and equal protection of the laws under the
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
He further claims the trial court erred by excusing prospective jurors for cause
without first so admonishing them.FN19 Defendant concedes that we have
consistently held “a ‘civic duty’ admonition is not necessary,” and apparently
asks us to reconsider the issue. (People v. Gordon (1990) 50 Cal.3d 1223,
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1

1261, 270 Cal.Rptr. 451, 792 P.2d 251.) We decline to do so and find no error
under these facts.

2
3

FN19. Defendant argues a “civic duty” admonition might
have “salvaged” six prospective jurors excused for cause: R. J.,
L. S., N. W., P. K., A. U., and R. A. As an initial matter, we note
that the goal of voir dire is not to “salvage” problematic jurors,
but rather to find 12 fair-minded jurors who will impartially
evaluate the case. In the previous section, defendant claimed that
two of these six prospective jurors (R. J. and R. A.) were excused
in violation of Witherspoon and Witt. But defendant does not
appear to claim that the remaining four jurors (L. S., N. W., P.
K., and A. U.) were also excused in violation of Witherspoon and
Witt. In any event, we have reviewed the voir dire of these other
four jurors, and we conclude the record supports the trial court’s
findings that these jurors held views that would prevent or
substantially impair the performance of their duties.

4
5
6
7
8
9
10
11
12
13

Hoyos, 41 Cal. 4th at 907-08.

14

Petitioner argues that “[t]he California Supreme Court’s rejection of this claim was

15

an unreasonable application of Witherspoon and its progeny.” (SAP at 31.) Respondent,

16

meanwhile, points out that the California Supreme Court has repeatedly rejected this claim.

17

(Ans. Mem. at 21, citing People v. Gordon, 50 Cal. 3d 1223, 1261 (1990) and People v.

18

Hamilton, 48 Cal. 3d 1142, 1166 n.5 (1989).) Petitioner argues that “[t]here may not be

19

settled law imposing a sua sponte duty to give a specific instruction, but there is settled

20

law, cited by petitioner, that precludes the discharge of a prospective juror unless the juror’s

21

views regarding the death penalty substantially impaired his ability to serve within the

22

meaning of Wainwright v. Witt, 469 U.S. 412 (1985).” (Pet. Brief at 8.) Petitioner relies

23

on Boulden v. Holman, 394 U.S. 478 (1969), for the proposition that “[i]t is entirely

24

possible that a person who has ‘a fixed opinion against’ or who does not ‘believe in’ capital

25

punishment might nevertheless be perfectly able as a juror to abide by existing law– to

26

follow conscientiously the instructions of a trial judge and to consider fairly the imposition

27

of the death sentence in a particular case.” Id. at 483-84.

28

///
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1

Petitioner’s jury venire was instructed that the parties were entitled to a panel of fair

2

jurors who could consider the case based only on the evidence presented at trial, and could

3

fairly consider both potential penalties, as follows:

4
5
6
7
8
9
10
11

Both the prosecution and the defendants are entitled to a jury comprised
of 12 fair-minded people from our community who can decide the question
about the defendants’ guilt or innocence based only on the sufficiency of
evidence produce [sic] only at the trial and irrespective of what the
consequences of that decision might be.
If the jury finds the defendants guilty and the second phase is reached,
jurors must be willing to consider fairly both the circumstances of the crime
and a defendant’s background before deciding between death as a possible
punishment and life without the possibility of parole as a possible punishment.
(RT 1677-78, 1716-17, 1753.)

18

Now, we know that some citizen’s [sic] favor the death penalty so
strongly that they would automatically or almost automatically impose a death
penalty for every murder or every murder with special circumstances,
regardless of the facts of the crime or of a defendant’s background. [¶] We
also know that some citizen’s [sic] are against the death penalty and have such
strong feelings and opposition to the death penalty that they would
automatically or almost automatically vote against the death penalty no matter
what the crime or the defendant’s background. [¶] Now, neither of these
opinions is necessarily wrong, but I can tell you this; it would be wrong for
people with these opinions to sit as a juror on a death penalty case.

19

(RT 1678-79, 1717-18, 1754.) It is clear that the prospective jurors were properly advised

20

that they were expected to consider the case based only on the evidence presented at trial

21

and that it would be improper for an individual to sit as a juror on the case who held such

22

strong feelings either for or against the death penalty that they would impose or refuse to

23

impose the death penalty regardless of the circumstances of the crime or the characteristics

24

of the defendant.

12
13
14
15
16
17

25

While it is entirely reasonable that a person who has serious reservations about the

26

death penalty may be able to follow a trial court’s instructions and consider such a potential

27

punishment, Petitioner has not demonstrated that a “civic duty” instruction is necessary to

28

this end. He also fails to cite to any clearly established Federal law requiring such an
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1

instruction.

2

instruction, six prospective jurors that were excused for cause “may well have responded

3

to the court’s questionings in a manner that precluded any excusal for cause.” (SAP at 31.)

4

Petitioner’s speculative assertions fail to demonstrate that the trial court’s decision not to

5

specifically admonish the jurors about their civic duty to serve amounted to error of a

6

constitutional dimension.

Petitioner generally argues that had the trial court given a civic duty

7

The state court’s rejection of this claim was neither contrary to, or an unreasonable

8

application of, clearly established federal law, nor was it based upon an unreasonable

9

determination of the facts. Petitioner is not entitled to habeas relief on Claim 3.

10

4.

Claim 4

11

In this claim, Petitioner contends that the “trial court erroneously denied the defense

12

motion to conduct individual sequestered voir dire of the prospective jurors in order to

13

effectuate a Sixth Amendment guarantee to an impartial jury, Duncan v. Louisiana, 391

14

U.S. 145 (1968), particularly with respect to the jurors’ responses regarding the death

15

penalty.” (SAP at 32.)

16
17

Petitioner raised this claim on direct appeal, and the state supreme court denied it in
a reasoned opinion, as follows:

18

Defendant claims the trial court erred in denying his motion for
individual and sequestered juror voir dire, and thus violated his right to trial
by an impartial jury and to due process of law under the Sixth and Fourteenth
Amendments to the United States Constitution. As we explain, we conclude
the trial court did not err in denying his motion.

19
20
21
22

Alvarado filed an in limine motion, in which defendant joined, seeking
individual and sequestered juror voir dire. The trial court denied the motion,
but left open the possibility of individual and sequestered voir dire for
particular jurors on a showing of good cause. Subsequently, the court stated it
intended to call 12 prospective jurors at a time for voir dire, followed by
discussion of challenges for cause outside the jurors’ presence. Defendant’s
trial counsel stated he had no objection to the court’s proposed jury selection
procedures.

23
24
25
26
27
28

///
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09cv0388 L (NLS)

1
2
3
4
5
6
7
8
9
10
11
12

As an initial matter, the People contend that counsel’s acquiescence in
the trial court’s proposed jury selection process bars defendant’s claim
concerning individual and sequestered voir dire. But the parties stipulated that
when the trial court made a ruling on an in limine motion, the losing party was
not required to restate the objection in order to preserve it for appellate
purposes (assuming that no evidence later presented changed the basis of the
trial court’s ruling). Defendant therefore did not forfeit his contention.
Defendant’s claim fails on the merits, however, because, as defendant
concedes, Code of Civil Procedure section 223, enacted as part of Proposition
115, abrogated the former individual voir dire procedure directed by Hovey v.
Superior Court (1980) 28 Cal.3d 1, 80, 168 Cal.Rptr. 128, 616 P.2d 1301.
(People v. Waidla (2000) 22 Cal.4th 690, 713, 94 Cal.Rptr.2d 396, 996 P.2d
46, citing Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1171,
71 Cal.Rptr.2d 91.) Defendant submits that Covarrubias was wrongly
decided, and apparently invites us to reconsider the issue. We decline to do
so. (People v. Ramos (2004) 34 Cal.4th 494, 512, 21 Cal.Rptr.3d 575, 101
P.3d 478.)

13
14

Hoyos, 41 Cal. 4th at 898-99.

15

As previously discussed with respect to the Teague bar (see section III.B.1, supra),

16

the United States Supreme Court has never held that individual, sequestered voir dire is

17

mandated in a capital criminal trial. Instead, the Supreme Court has stated that “[v]oir dire

18

‘is conducted under the supervision of the court, and a great deal must, of necessity, be left

19

to its sound discretion.’” Morgan v. Illinois, 504 U.S. 719, 729 (1992), quoting Ristaine

20

v. Ross, 424 U.S. 589, 594 (1976) (bracket in original); see also Mu’Min, 500 U.S. at 427

21

(“[O]ur own cases have stressed the wide discretion granted to the trial court in conducting

22

voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to

23

show juror bias.”) Current California state law, that was also in effect at the time of

24

Petitioner’s trial, clearly holds that “[v]oir dire of any prospective jurors shall, where

25

practicable, occur in the presence of the other jurors in all criminal cases, including death

26

penalty cases.” Cal. Code Civ. Proc. § 223.

27

The Supreme Court has also acknowledged “part of the guarantee of a defendant’s

28

right to an impartial jury is an adequate voir dire to identify unqualified jurors.” Morgan,
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09cv0388 L (NLS)

1

504 U.S. at 729. Here, Petitioner fails to show that the trial court’s decision not to conduct

2

individual, sequestered voir dire rendered the process somehow inadequate in his case. A

3

review of the record shows that the prospective jurors completed lengthy written

4

questionnaires which contained and included numerous questions about their views on the

5

criminal justice system and capital punishment in particular. The trial court conducted

6

follow-up questioning in “small groups” of twelve individuals. (See CT 3467, 3479; RT

7

1791.) The prospective jurors were advised that they could ask to address certain topics or

8

matters in private if needed and counsel was also provided with an opportunity to question

9

the prospective jurors. After reviewing the record, it is clear that this procedure allowed

10

the parties and the trial court to determine whether any prospective jurors held opinions so

11

strong that they could not be fair to both sides, and would either always impose, or could

12

never impose, a death sentence. In light of the thorough jury selection process employed

13

by the trial court, there is no indication that Petitioner was deprived of his right to an

14

impartial jury.

15

Given that the Supreme Court has never articulated the rule Petitioner advances, and

16

after reviewing the record of the voir dire proceedings, Petitioner fails to demonstrate that

17

the California Supreme Court’s rejection of this claim was either contrary to, or an

18

unreasonable application of, clearly established federal law and was not based on an

19

unreasonable determination of the facts. Habeas relief is not warranted on Claim 4.

20

B.

Claims of Trial Court Error

21

1.

22

Petitioner alleges that the trial court’s refusal to sever his trial from that of co-

23

defendant Alvarado’s trial violated his constitutional rights to due process, to testify and to

24

a fair trial. (SAP at 35.)

25

Claim 5

The California Supreme Court considered this claim on direct appeal, denying it in

26

a reasoned opinion as follows:

27

///

28

///
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09cv0388 L (NLS)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Defendant asserts that the trial court’s denial of his severance motion
violated his rights to due process of law, a fair trial, a reliable sentence, and
the right to testify on his own behalf, in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution. As discussed
below, we conclude the trial court did not err in denying the severance motion.
1. Statements of the Jailhouse Informants
Several of defendant’s claims on appeal, including the severance claim,
relate to jailhouse informants George Jimenez and Jorge Flores and their
statements. Neither Jimenez nor Flores testified at trial.
a. George Jimenez
Following defendant’s and Alvarado’s arrest after the car stop,
Alvarado was incarcerated in the county jail. On May 30, 1992, Alvarado
(under the alias “Ralph Varela”) was in a holding cell with several other
inmates, including George Jimenez. In an interview on June 23, 1992, Jimenez
told police the inmates were passing around a newspaper that included a story
about the Magoon murders. While looking at the newspaper, Alvarado stated,
“Hey, we did this.” One of the other inmates said, “You’re the ones that
capped that little kid?” Alvarado laughed and replied, “Yeah.” Enraged by
Alvarado’s admission, some of the inmates assaulted Alvarado.
b. Jorge Flores
On the same day as Alvarado’s jailhouse assault, defendant was
incarcerated in a different jail, where he spoke with an acquaintance, Jorge
Flores. The next day, June 1, 1992, during an interview with police detectives,
Flores stated defendant told him he had taken a pistol that belonged to a
shooting victim. Defendant told Flores that he and an unnamed companion
were sent by their boss to the victims’ house to either get back the marijuana
their boss had sold to the victims or get the money the victims owed for it.
Defendant stated that when they went to the victims’ house the victims were
not there, but when the victims arrived, the male victim saw they were waiting
for him, and the victims went inside the house. Defendant and his companion
knocked on the door; the door opened, or was broken down, and the male and
female victims were inside holding weapons. The companion pulled his gun
and shot one of the victims, and the bullet also hit one of the children in the
head. The second victim tried to shoot, and defendant shot the second victim.

28
71
09cv0388 L (NLS)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

2. Aranda/Bruton Issues
Defendant and Alvarado moved to sever the trial on the ground that the
prosecution’s proposed admission of the jailhouse informants’ testimony
would violate People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407
P.2d 265 and Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20
L.Ed.2d 476. Bruton and its progeny provide that if the prosecutor in a joint
trial seeks to admit a nontestifying codefendant’s extrajudicial statement,
either the statement must be redacted to avoid implicating the defendant or
the court must sever the trials. (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 43, 17 Cal.Rptr.3d 710, 96 P.3d 30.) As to the Flores statement, the
prosecution resolved any potential Aranda/Bruton issues when it limited its
evidence to defendant’s admission that he had taken a gun from the victim.
As to the Jimenez statement, the prosecutor offered several possible
redactions to avoid violating Aranda/Bruton, all of which the court ultimately
deemed inadequate. The prosecutor then elected to proceed with a joint trial
at which he would not introduce the Jimenez statement in his case-in-chief,
although the parties understood it might be used for impeachment purposes.
The trial court’s final order was that the prosecution would not use the
Jimenez statement in its case-in-chief at the guilt or penalty phases.
Section 1098 expresses a legislative preference for joint trials. (People
v. Coffman and Marlow, supra, 34 Cal.4th at p. 40, 17 Cal.Rptr.3d 710, 96
P.3d 30.) A trial court’s denial of a motion for severance is reviewed for abuse
of discretion, judged on the facts as they appeared at the time of the ruling.
(Id. at p. 41, 17 Cal.Rptr.3d 710, 96 P.3d 30.) But even if the ruling on a
severance motion was correct when made, the reviewing court will reverse the
decision if a defendant shows that joinder actually resulted in “gross
unfairness,” amounting to a denial of due process. (People v. Johnson (1988)
47 Cal.3d at p. 576, 590, 253 Cal.Rptr. 710, 764 P.2d 1087.)

21
22
23
24
25
26
27
28

Because the trial court decided the severance motion entirely on Aranda
and Bruton grounds, and because defendant does not claim the trial court erred
in that ruling, he appears to concede the trial court’s denial of the severance
motion was correct. Defendant contends, however, that the court committed
prejudicial error when it left open the possibility that if Alvarado testified,
Jimenez could be called to impeach him. Defendant claims that because the
trial court did not bar Jimenez’s testimony altogether, the denial of severance
resulted in gross unfairness amounting to a violation of due process. But
defendant’s claim that the trial court erred in not barring Jimenez’s testimony
altogether on Aranda and Bruton grounds is not viable. A codefendant’s
72
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1

extrajudicial statement implicating another defendant need not be excluded
when the codefendant testifies and is available for cross-examination.FN11
(Nelson v. O’Neil (1971) 402 U.S. 622, 629–30, 91 S.Ct. 1723, 29 L.Ed.2d
222; People v. Boyd (1990) 222 Cal.App.3d 541, 562–63, 271 Cal.Rptr. 738.)

2
3
4

FN11. Defendant bases his claim that he suffered gross
unfairness because Jimenez’s testimony was not excluded
altogether on his argument (discussed and rejected in pt. IV. F.,
post) that he suffered a Brady violation because the prosecutor
made a late disclosure of evidence that undermined Jimenez’s
credibility. (Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (Brady).) But because defendant’s Brady
claim fails, so too does his derivative claim that the trial court’s
denial of severance later resulted in gross unfairness in the form
of the alleged Brady violation.

5
6
7
8
9
10
11
12

Hoyos, 41 Cal. 4th at 894-96. The state supreme court also rejected Petitioner’s contention

13

that the trial court’s ruling resulted in prejudice with respect to his penalty phase

14

proceedings. See id. at 927 fn. 38 (“Because we discern no error in any area of the guilt

15

phase, we reject defendant’s claims of any prejudicial effect in the penalty phase arising

16

from these or any other guilt phase rulings.”)

17

Federal habeas relief is unavailable based on alleged errors of state law unless such

18

error violated a petitioner’s federal constitutional rights. See Estelle v. McGuire, 502 U.S.

19

62, 68-73, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine

20

state-court determinations on state-law questions. In conducting habeas review, a federal

21

court is limited to deciding whether a conviction violated the Constitution, laws, or treaties

22

of the United States.”); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.

23

1991); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th Cir. 1996) (“While a petitioner for

24

federal habeas relief may not challenge the application of state evidentiary rules, he is

25

entitled to relief if the evidentiary decision created an absence of fundamental fairness that

26

‘fatally infected the trial.’”), quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th

27

Cir. 1986).

28

///
73
09cv0388 L (NLS)

1

“In common with other courts, the [United States Supreme] Court has long

2

recognized that joint trials ‘conserve state funds, diminish inconvenience to witnesses and

3

public authorities, and avoid delays in bringing those accused of crime to trial.’” United

4

States v. Lane, 474 U.S. 438, 449 (1986), quoting Bruton v. United States, 391 U.S. 123,

5

134 (1968). Under California law, “[w]hen two or more defendants are jointly charged

6

with any public offense, whether felony or misdemeanor, they must be tried jointly, unless

7

the court order separate trials.” Cal. Penal Code § 1098. Under Federal law, “[i]mproper

8

joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the

9

level of a constitutional violation only if it results in prejudice so great as to deny a

10

defendant his Fifth Amendment right to a fair trial.” Lane, 474 U.S. at 446 n.8.

11

Petitioner primarily contends that the state court’s ruling ignored and did not

12

properly address his argument that the trial court’s denial of the severance motion infringed

13

his right to testify, and explains that “[t]he point of petitioner’s presentation to the trial

14

court was that Alvarado would refuse to testify if he could be impeached with the Jimenez

15

statement, and that refusal would require petitioner as well to refrain from testifying at a

16

joint trial.” (SAP at 41; see also Pet. Brief at 10.)

17

In Zafiro v. United States, 506 U.S. 534 (1993), the Supreme Court stated that when

18

co-defendants have been joined under the Federal Rules of Criminal Procedure, severance

19

should be granted “only if there is a serious risk that a joint trial would compromise a

20

specific trial right of one of the defendants, or prevent the jury from making a reliable

21

judgment about guilt or innocence.” Id., 506 U.S. at 539. In Rock v. Arkansas, 483 U.S.

22

44 (1987), the Supreme Court declared that “it cannot be doubted that a defendant in a

23

criminal case has the right to take the witness stand and to testify in his or her own defense.”

24

Id., 483 U.S. at 49.

25

Petitioner places significant reliance on Zafiro in support of his claim. (See Reply

26

at 39-42.) This reliance is misplaced, as the Ninth Circuit has explicitly held that “[b]y its

27

own wording, Zafiro only applies to federal and not state court trials. It analyzes only the

28

Federal Rules of Criminal Procedure applicable to federal district courts.” Collins v.
74
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1

Runnels, 603 F.3d 1127, 1131-32 (9th Cir. 2010) (italics in original); see also Runningeagle

2

v. Ryan, 686 F.3d 758, 776-77 (9th Cir. 2012) (“In reaching that holding [in Collins v.

3

Runnels], we found that the statement in Lane regarding when misjoinder rises to the level

4

of constitutional violation was dicta and that Zafiro is not binding on the state courts

5

because it addresses the Federal Rules of Criminal Procedure. Id. at 1131-33. Neither

6

decision is ‘clearly established Federal law’ sufficient to support a habeas challenge under

7

§ 2254.”)

8

Additionally, Petitioner’s assertion that the California Supreme Court ignored his

9

argument about the infringement of his right to testify is refuted by the record, as the state

10

court clearly and explicitly acknowledged this contention in adjudicating the claim on

11

direct appeal. See Hoyos, 41 Cal. 4th at 894 (“Defendant asserts that the trial court’s denial

12

of his severance motion violated his rights to due process of law, a fair trial, a reliable

13

sentence, and the right to testify on his own behalf, in violation of the Fifth, Sixth, Eighth,

14

and Fourteenth Amendments to the United States Constitution.”) The state court found

15

that the trial court’s ruling was not in error, and did not in any event result in “gross

16

unfairness” nor have a prejudicial impact on Petitioner’s guilt or penalty phase

17

proceedings. Id. at 896.

18

Indeed, in rejecting Petitioner’s Brady claim, which is discussed in greater detail in

19

Claim 13 below, the California Supreme Court also specifically rejected Petitioner’s

20

arguments about the effects of the joint defense agreement:

21

Defendant implies the above trial considerations necessitated his
adoption of the agreement with Alvarado and corresponding trial strategy. But
this strategy was not compelled by necessity, legal or otherwise. Even
assuming both codefendants wished to keep Jimenez’s statements from the
jury, defendant’s testifying would not necessarily have caused Alvarado to
testify. Alvarado’s testifying in response to Jimenez’s statements would have
been contingent on the nature of defendant’s testimony. If defendant’s
testimony painted Alvarado in a particularly bad light, Alvarado might have
testified, in order to shift the blame to defendant.

22
23
24
25
26
27
28

///
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1
2
3
4
5
6

It was also possible, however, that Alvarado would not have testified.
Before testifying, Alvarado would have considered the consequences of his
testimony: leaving defendant’s testimony unrebutted, or taking the stand and
risk having the jury hear Jimenez’s statements. Alvarado could not make that
calculation prior to hearing defendant’s actual testimony. Neither could
defendant know with any certainty in advance what Alvarado would do. There
was no necessary connection between defendant’s testifying and Alvarado’s
testifying.

7
8

Hoyos, 41 Cal. 4th at 921.

9

As discussed below with respect to Claim 13, Petitioner’s related claims of Brady

10

error and ineffective assistance of counsel, the trial court reasonably concluded that the

11

prospect of Jimenez impeaching Alvarado did not directly impact Petitioner’s own decision

12

whether or not to testify, as Jimenez’s testimony was not admissible against Petitioner

13

irrespective of whether Petitioner testified at trial, and any agreement between the

14

defendants was “not cognizable according to the constitution,” as follows:

15
16
17
18
19
20
21
22
23
24

There isn’t any Sixth Amendment violation that I see as to Mr. Hoyos in this
case. He could have testified in this case without any fear of impeachment by
Jiminez [sic]. He chose not to do so. In fact, he chose not to do so in advance
for reasons, as it seems, to be more akin to familial considerations. We sink
or swim together. That’s not cognizable as a constitutional violation. He
made a decision and the potential impeaching information of the informant as
to his co-defendant is not really of constitutional significance as to Mr. Hoyos.
So in all respects, Mr. Hoyos’ motion is going to be denied.
There is no showing whatsoever that the failure of testimony of Alvarado in
this case could have in some fashion exonerated Mr. Hoyos. Quite to the
contrary, as I’m understanding the positions of the lawyers, but anyway, these
two individuals decided themselves to act as a unit. That’s their right. They
can decide not to testify as a unit or to testify as a unit, but that’s their decision,
not cognizable according to the constitution, so that’s my decision.

25
26

(RT 4729-30.)

27

The state supreme court acknowledged that Petitioner and Alvarado had a voluntary

28

strategic agreement that their prospects were best if either both defendants testified at trial,
76
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1

or if neither testified, but Petitioner fails to offer record support for an argument that if

2

Alvarado declined to testify that Petitioner was required to decline as well. As that court

3

reasonably concluded: “There was no necessary connection between defendant’s testifying

4

and Alvarado’s testifying.” Hoyos, 41 Cal. 4th at 921. At most, Petitioner was faced with

5

the prospect that if he chose to testify, Alvarado would make an independent decision to

6

also testify, and the Jimenez statement would have then come in as impeachment against

7

Alvarado. The trial court, and later the state supreme court, each correctly observed that

8

Jimenez’s testimony was not admissible against Petitioner, only Alvarado, and reasonably

9

concluded that the prospect of Jimenez’s testimony did not directly impact Petitioner’s own

10

decision to testify.

11

As such, this Court is not persuaded that the trial court’s denial of the severance

12

motion violated Petitioner’s federal constitutional rights or rendered his trial fundamentally

13

unfair. See McGuire, 502 U.S. at 68-73; Jammal, 926 F.2d at 919; Ortiz-Sandoval, 81 F.3d

14

at 897. Petitioner fails to demonstrate that the California Supreme Court’s rejection of this

15

claim was contrary to, or an unreasonable application of, clearly established federal law,

16

or that it was based on an unreasonable determination of the facts. Petitioner is not entitled

17

to habeas relief on Claim 5.

18

2.

19

Petitioner contends that “the trial court erred in precluding the defense from

20

presenting evidence of Mary Magoon’s drug use and violence,” including “evidence of her

21

sky-high cocaine blood content at the time of the murders; her current and prior possession

22

of firearms; and her prior incidents of violent conduct.” (SAP at 42-43.) Petitioner asserts

23

that had the jury been apprised of this information, they might have voted for a life

24

sentence. (Id. at 43.)

25

Claim 6

The California Supreme Court considered and rejected this claim on direct appeal,

26

reasoning as follows:

27

///

28

///
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09cv0388 L (NLS)

1
2
3
4
5
6
7
8
9
10
11
12

Defendant contends that the court abused its discretion in excluding
evidence of Mary Magoon’s alleged propensity for violence and use of
firearms. Defendant claims the exclusion violated his rights to due process, to
present a defense, and to a reliable penalty determination under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
As discussed below, defense counsel did not seek to admit this evidence, and,
even if he had, it would not have been an abuse of discretion for the trial court
to have excluded the evidence.
Before trial commenced, the court denied the prosecution’s motion in
limine to exclude, as irrelevant, evidence of Daniel Magoon’s propensity for
violence and prior firearm use. The court agreed with defense counsel that the
presence of the Ingram “Mac 10” semiautomatic pistol at the entryway of the
Magoon house supported the defense theory that Daniel Magoon may have
brandished that weapon in a confrontation with defendants, and that his
propensity for violence and prior use of firearms was therefore relevant. But
the parties did not discuss the relevance of evidence pointing to Mary
Magoon’s propensity for violence or prior firearm use.

13
14
15
16
17
18
19
20
21
22

During the cross-examination of prosecution witness Jimmy Johnson,
defense counsel asked Johnson about statements Johnson made to the police
concerning Mary Magoon’s propensity for violence and prior firearm use. The
prosecution objected to the question on relevance grounds, but the court
overruled the objection. Later, outside the presence of the jury, defense
counsel told the court that Johnson had made a prior statement to police that
Johnson believed Mary Magoon was heading to the bathroom to get a gun
before she was murdered. The court did not rule that the statement was
inadmissible. Instead, it observed that the evidence presented at trial thus far
provided no foundation for questions concerning Mary Magoon’s propensity
for violence and firearm use. Continuing his cross-examination of Johnson,
defense counsel asked about a statement that Johnson had made to the police
that Mary Magoon “was on a runaway ... train with Dan.” The court sustained
the prosecution’s objection on relevance grounds.

23
24
25
26
27
28

The issue of Mary Magoon’s propensity for violence resurfaced later in
the trial, when defense counsel asked the court to rule on defendant’s pending
motion in limine to admit the testimony of Detective Coleman. That testimony
would discuss Daniel Magoon’s 1982 arrest in order to show his propensity
for being armed during drug transactions. The court was concerned that
because Mary Magoon had also been present at the arrest, the testimony could
confuse the issues under Evidence Code section 352, particularly because
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1
2
3
4

there was no evidence establishing Mary Magoon’s propensity for violence.
Defense counsel made a narrower offer of proof limited to Daniel Magoon’s
past gun use, and stated he was willing to sacrifice any testimony about Mary
Magoon in order to present the jury with the evidence concerning Daniel
Magoon. In light of the narrowed offer of proof, the court admitted Detective
Cole’s testimony, and defendant’s counsel did not object to the ruling.

5
6
7
8
9
10
11
12
13
14
15
16
17
18

Although the record shows that defense counsel failed to seek a ruling
on the admissibility of evidence concerning Mary Magoon’s propensity for
violence and prior use of firearms, defendant contends that any further
attempts by trial counsel to admit such evidence would have been futile after
the court appeared to indicate that it believed such evidence to be
inadmissible. Even assuming defendant’s argument to be true, the trial court
would not have abused its discretion in excluding such evidence under
Evidence Code section 352 on the ground that it would have created a
substantial danger of confusing the issues at trial. (See People v. Wright
(1985) 39 Cal.3d 576, 587–88, 217 Cal.Rptr. 212, 703 P.2d 1106 [court may
exclude under Evidence Code section 352 evidence of the aggressive and
violent character of the victim.]) During the pretrial discussions of the
relevance of admitting evidence of Daniel Magoon’s propensity for violence
and gun use, the trial court pointed out that, in order for a murder victim’s
propensity for violence to be relevant, there must be some evidentiary support
for a self-defense-type theory that the defendant perceived the murder victim
as presenting an immediate threat. As the trial court noted, even if the murder
victim were the most violent person in the world, that fact would not be
relevant if the evidence made it clear that the victim was taken by surprise and
shot in the back of the head.

19
20
21
22
23
24
25
26
27
28

There was no evidence indicating that Mary Magoon could have
presented a threat to defendant. Mary Magoon was killed in the hallway
bathroom, which was a significant distance away from the living room, where
investigators found the two rifles, or the entryway, where investigators found
the Ingram “Mac-10” style semiautomatic pistol. The evidence indicated that
she had been shot while holding three-year-old J. in her arms, beaten, and then
finished off with a bullet to the back of her head. Defendant’s sole basis for
arguing that Mary Magoon might have been perceived as a threat to defendant
is Johnson’s statement to the police that Mary Magoon might have been going
for a gun in the hallway bathroom, which was sheer speculation.FN24 Given
this record, it would have been within the trial court’s discretion to have
excluded the admission of evidence pertaining to Mary Magoon’s alleged
propensity for violence and prior use of firearms.
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1

5

FN24. Defendant asserts that Mary Magoon “was found
on the floor near the empty box of a weapon just like the one she
was known to have carried in the past.” But defendant is
mistaken. The empty gun box of the Helwan pistol was found in
a hidden compartment in the master bedroom bathroom, not in
the hallway bathroom where investigators found Mary Magoon’s
body.

6

Hoyos, 41 Cal. 4th at 911-13 (bracket in original). The state supreme court also rejected

7

Petitioner’s contention that the trial court’s ruling resulted in prejudice with respect to his

8

penalty phase proceedings. See id. at 927 fn. 38 (“Because we discern no error in any area

9

of the guilt phase, we reject defendant’s claims of any prejudicial effect in the penalty phase

2
3
4

10

arising from these or any other guilt phase rulings.”)

11

“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to

12

present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting

13

California v. Trombetta, 467 U.S. 479, 485 (1984). Even so, “[t]he accused does not have

14

an unfettered right to offer testimony that is incompetent, privileged, or otherwise

15

inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410

16

(1988). “While the Constitution thus prohibits the exclusion of defense evidence under

17

rules that serve no legitimate purpose or that are disproportionate to the ends that they are

18

asserted to promote, well-established rules of evidence permit trial judges to exclude

19

evidence if its probative value is outweighed by certain other factors such as unfair

20

prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South

21

Carolina, 547 U.S. 319, 326 (2006); see also Menendez v. Terhune, 422 F.3d 1012, 1033

22

(9th Cir. 2005) (“[A] trial judge may exclude or limit evidence to prevent excessive

23

consumption of time, undue prejudice, confusion of the issues, or misleading the jury. The

24

trial judge enjoys broad latitude in this regard, so long as the rulings are not arbitrary or

25

disproportionate.”) (citations omitted).

26

The state record reflects that the trial court repeatedly expressed concerns about the

27

possibility that the defense would seek to introduce evidence concerning Mary Magoon’s

28

propensity for violence, and opined that such evidence did not appear relevant based on the
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1

circumstances of the crime, as reflected in the crime scene photos. During a break in the

2

trial proceedings, the trial court generally noted that “[t]here was a portion of the testimony

3

this morning that I think ran afoul of some of our previous discussions concerning the scope

4

of permissible examination concerning the aggressiveness of the victims in this case, the

5

propensity towards violence, if any, of any victims in this case.” (RT 3323.) The trial

6

court stated that: “The focus has always been on Daniel Magoon, Daniel Magoon being,

7

from the defense perspective, a violent individual, the crime scene supporting certain

8

inferences which may lend support to the absence of premeditation.” (RT 3324.) The trial

9

court specifically referenced Jimmy Johnson’s testimony, noted that the parties’ earlier

10

focus had been on propensity evidence as it related to Daniel Magoon, and stated that: “We

11

didn’t talk about Mary Magoon. Now, from the crime scene photographs that I have seen,

12

I have a great deal of difficulty determining or finding any relevance to testimony

13

concerning Ms. Magoon’s use of weapons, her propensity, if there is such, towards

14

violence. I haven’t seen anything that would cause me to think that’s relevant.” (RT 3324-

15

25.)

16

The trial court expressed concern about whether the defense’s questions would go

17

towards Mary Magoon, given that crime scene photos showed she was shot in the back of

18

the head. (RT 3325.) In response, defense counsel indicated that Johnson previously

19

indicated that Mary Magoon had prior weapon use, had previously possessed a gun, knew

20

how to use guns, and that Johnson speculated that she might have been going for a weapon.

21

(RT 3325-26.) The trial court responded that: “I am not saying there was any impropriety

22

in any question, but I think your position so far as she might have been going into the

23

bathroom for a gun is, from what I see, is an argument that you can make, of course, but I

24

don’t see evidentiary support of that from the crime scene or from the testimony as to

25

location of weapons, that sort of thing. And I think the inquiry into that area should be

26

carefully approached.” (RT 3326-27.) The trial court then stated: “I wanted to explain to

27

you my thinking from the evidence that I have seen of the crime scene, the discussions,

28

and my thinking on it so that you can proceed accordingly. I’m not telling you how to ask
81
09cv0388 L (NLS)

1

questions or what questions to ask. But I’m aware of the issue now.” (RT 3328.)

2

A short time later, during testimony in front of the jury, Johnson stated that he knew

3

Daniel Magoon had a hidden compartment in the home for narcotics or drugs. (RT 3333.)

4

Defense counsel broached the subject of Mary Magoon, and asked Johnson about a

5

statement Johnson made to police that “She was on a runaway, runaway train with Dan,”

6

to which the trial court sustained the prosecutor’s relevance objection. (RT 3333-34.)

7

Counsel refrained from asking additional questions about Mary Magoon and returned to

8

the subject of Daniel Magoon; Johnson acknowledged that he told police Daniel Magoon

9

would have a gun out when people came to his home at night. (RT 3334.)

10

Later in the trial proceedings, the defense attempted to introduce testimony about

11

Daniel Magoon’s prior arrest, at which Mary Magoon was present, to show that he carried

12

a gun during drug deals. The trial court repeated his reservations as far as they involved

13

Mary Magoon, stating: “The second aspect of my concerns under [Cal. Penal Code section]

14

352 are the potential for the confusion of issues. When we bring forth that incident in 1984

15

or ‘85, we have Miss Fisher11 part and parcel of that incident. And to the extent that she

16

is, in effect, the subject of the same broad brush as Mr. Magoon, there is no true question

17

that I see as to her propensity for violence. As I have said before, we can speculate that

18

she might have been in that bathroom looking for a gun, but I think it’s pure speculation.

19

Everything seems to point to something other than that. So there is the question of the

20

undue consumption of time.” (RT 3501.) The defense stated they were “more than willing

21

to narrow it, leave her out,” and only introduce the evidence as it pertained to Daniel

22

Magoon. (RT 3504, 3508.) The trial court allowed the testimony as limited by the defense.

23

(RT 3790.)

24

Even if this Court were to assume, without deciding, that the trial court’s articulated

25

reservations with the introduction of evidence concerning Mary Magoon’s propensity for

26

27
28

Fisher was Mary Magoon’s maiden name, as she was not yet married to Daniel
Magoon at the time of this incident. (RT 3502.)
11

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09cv0388 L (NLS)

1

violence amounted to an express ruling excluding that evidence, Petitioner fails to show

2

that the trial court’s decision constituted an abuse of discretion or was “arbitrary or

3

disproportionate.” Menendez, 422 F.3d at 1033. Again, “it is not the province of a federal

4

habeas court to reexamine state-court determinations on state-law questions.” McGuire,

5

502 U.S. at 68. Petitioner fails to show that the failure to admit this evidence rendered his

6

trial “fundamentally unfair.” Jammal, 926 F.2d at 919.

7

As the state court reasonably concluded, there was no actual evidence that Mary

8

Magoon presented a threat to the defendants, and thus, the trial court correctly concluded

9

that evidence of her propensity for violence or weapon use was not relevant. Petitioner

10

argues that the state supreme court’s decision failed to specifically mention the cocaine

11

found in Mary Magoon’s system, which “was admissible to show her likely aggressive and

12

volatile conduct,” and “would have provided the type of foundation for the rest of the

13

evidence regarding her use of firearms then and in the past, and of her immersion in the

14

violent drug-dealing business with her husband.” (SAP at 47.) However, there is no

15

evidence in the record that Mary Magoon was aggressive or violent under the influence of

16

cocaine.12 Dr. Stephen Stahl, who testified at trial about the cocaine levels in Daniel

17
18
19
20
21
22
23
24
25
26
27
28

In support of the first state habeas petition, Petitioner submitted the declaration of
Cherlyne Short Majors, the director of a health services management company with over
30 years experience in the fields of “child/maternal health and substance dependence,” who
opines that the “cocaine and residue found in Mrs. Magoon’s blood is a very substantial
dose.” (Lodgment No. 111, Ex. 62.) Majors opines that the condition of the Magoon home
and the Magoons’ youngest son “suggests that Mrs. Magoon had used cocaine [or related
stimulants] for a lengthy period, and had likely developed a high tolerance.” (Id.) (bracket
in original.) Majors states that Mary Magoon was “neurologically impaired” at the time of
her death and “[i]t is highly probable that her movements in that moment of crisis did not
comport to her own norms, much less the norms of the larger society.” (Id.) However, as
the instant claim was only raised on direct appeal, Majors’ declaration cannot be considered
in support of this claim, as it was not presented to the California Supreme Court until the
state habeas petition. See Pinholster, 563 U.S. at 181 (“[R]eview under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the
merits.”) Even were the Court able to consider this declaration, it does not support
12

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09cv0388 L (NLS)

1

Magoon’s system, stated that cocaine use results in feelings of euphoria and pleasure, and

2

that higher doses could cause a person to act suspicious, paranoid, hostile, or even

3

delusional. (RT 3756.) However, Dr. Stahl also stated that the effects of cocaine use was

4

impacted by several factors, including a person’s age, weight, prior use, and that the drug

5

affected people differently; he could not state what impact it would have on a particular

6

person, such as Daniel Magoon. (RT 3757-58.) As such, the record evidence fails to

7

support a conclusion that Mary Magoon’s cocaine use, on its own, would have provided a

8

foundation for the introduction of the desired propensity evidence.

9

More importantly, in ruling that evidence of Daniel Magoon’s weapon possession

10

and propensity for violence was admissible, the trial court heard evidence not only of the

11

cocaine found in the victims’ system, but that Daniel Magoon had a long-standing

12

involvement in drug dealing involving large amounts of marijuana and money, sold and

13

possessed numerous weapons, and that a large automatic weapon was found at the doorway

14

of the house, and that he dealt drugs out of his garage and kept weapons there. (RT 2805-

15

06, 2814, 2822-23.) With that showing, the trial court articulated that the defense was

16

entitled to argue that the evidence would show Daniel Magoon was a “very violent

17

individual, armed himself with weapons, was very familiar with weapons, had an automatic

18

weapon in the garage at one point.” (RT 2834-35.)

19

Petitioner fails to offer any similar evidence with respect to Mary Magoon. That she

20

was in the company of Daniel Magoon when he was arrested more than ten years earlier,

21

and had at one prior point possessed and used a gun fails to demonstrate a propensity for

22

violence. Jimmy Johnson’s statement that Mary Magoon might have been going for a gun

23

that evening is pure speculation, and markedly abstract in comparison to Mr. Johnson’s

24

statements to the police that Daniel Magoon collected and sold drugs and weapons and that

25

he knew Daniel Magoon to answer the door at night with a gun at his side. (See RT 3334.)

26

27
28

Petitioner’s contention, as Majors does not indicate that Mary Magoon was likely either
aggressive or violent.
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1

In the merits brief, Petitioner also faults the state supreme court for “mak[ing] no

2

mention of the fact that an M1 rifle was found in the bathroom where she was eventually

3

shot, strongly indicating it was a highly reasonable inference, not ‘sheer speculation’ she

4

was going for a weapon at the time she was shot.” (Pet. Brief at 13.) A review of the state

5

record refutes this contention, as it clearly reflects that the M-1 rifle was located in the

6

master bedroom bathroom, not the hallway bathroom where Mary Magoon was found.

7

(See RT 3040-43) (testimony that M-1 rifle, pills, ammunition, and box to pistol were

8

found in storage area hidden behind a cabinet in master bedroom bathroom). Indeed, the

9

California Supreme Court earlier refuted the similar mistaken argument concerning Mary

10

Magoon’s location, observing that: “Defendant asserts that Mary Magoon ‘was found on

11

the floor near the empty box of a weapon just like the one she was known to have carried

12

in the past.’ But defendant is mistaken. The empty gun box of the Helwan pistol was found

13

in a hidden compartment in the master bedroom bathroom, not in the hallway bathroom

14

where investigators found Mary Magoon’s body.” Hoyos, 41 Cal. 4th at 913 n. 24. In the

15

reply brief, Petitioner retracts the earlier assertion about the M-1 rifle and acknowledges

16

that no weapons were found in the hallway bathroom where Mary Magoon was shot, but

17

nonetheless argues that “the record does indicate that the Magoons had weapons stashed

18

all over the house, and she may have been going to get them when she was shot from

19

behind.” (Reply at 49 n. 3.) This contention, like Johnson’s statement, is pure conjecture.

20

Meanwhile, as the trial court reasonably determined, the crime scene evidence fails

21

to support a conclusion that Mary Magoon presented any threat to the defendants. Again,

22

Mary Magoon was found in the hallway bathroom in her pajamas, and had suffered

23

multiple blunt force trauma to the face, body and head as well as a gunshot to the back of

24

the head. There were no weapons within reach, as the weapons found in a bathroom were

25

in a hidden compartment in the master bathroom, several rooms away, not the bathroom

26

where Mary was found. The other guns noted were a rifle and an air rifle in the living

27

room and a pistol in the entryway to the home, each also a significant distance from Mary

28

Magoon’s location. Contrary to showing that Mary ever used the air rifle, the evidence
85
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1

instead reflected that the weapon was used against her, as blood on the barrel was consistent

2

with her blood type and injuries to her head and back could have been caused by the rifle.

3

Finally, any possibility that Mary sought to use the weapons found near the front of the

4

home would have been further complicated by their location, given the defense theory that

5

Daniel Magoon likely answered the door with a weapon brandished.

6

More significantly, there was ample evidence that the violence inflicted on Mary

7

Magoon was likely done in close proximity to her youngest son. Hair found in Mary

8

Magoon’s left hand was consistent with that of her three-year-old son J. (RT 3354-59.)

9

Her son’s pacifier was found clutched in Mary’s hand and a baby blanket was lying

10

between her legs. (RT 2890-93, 3033.) Dr. Arthur Koehler, a pathologist who reviewed

11

the records concerning the wounds suffered by both Mary Magoon and her son, testified

12

that the wound to J. was tangential rather than direct, “[a]nd in reviewing the wound of the

13

decedent, Mary Magoon, it’s very likely that this missile passed through the arm without

14

slowing down and was very capable of causing a tangential wound” in her son J. (RT 3765,

15

3768.)

16

photographs, stated that assuming a bullet struck Mary and then hit her son J., it was likely

17

the “graze wound on the base of thumb” rather than the wound to the forearm. (RT 3807.)

18

In sum, the evidence in the record simply fails to support a defense theory that Mary

19

Magoon presented a threat to the defendants, much less the imminent threat necessary to

20

justify the introduction of propensity type evidence. As a result, the Court cannot conclude

21

that the trial court’s decision was in error, much less that it rendered Petitioner’s trial

22

“fundamentally unfair.” Jammal, 926 F.2d at 919.

Dr. Irving Root, another pathologist who reviewed the autopsy reports and

23

Finally, even were Petitioner able to demonstrate that the trial court’s ruling

24

amounted to error of a constitutional dimension, he fails to demonstrate prejudice at either

25

phase of trial. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (trial error warrants

26

habeas relief only if it “had substantial and injurious effect or influence in determining the

27

jury’s verdict.”) Petitioner fails to demonstrate any possible guilt phase prejudice, as the

28

jury was presented with concrete evidence about Daniel Magoon’s propensity for violence,
86
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1

including his lengthy involvement in drug and gun trafficking, prior arrest, the cocaine in

2

his system and the potential effects, and that he was often armed when answering the door

3

at night. Nonetheless, the jury rejected the defense’s self-defense and manslaughter

4

arguments and found Petitioner guilty of first-degree murder in the death of Daniel

5

Magoon.

6

Magoon’s propensity for violence, there is no reasonable likelihood that the jury would

7

have been persuaded that a lesser degree of murder was appropriate in her case.

Given that verdict and the comparatively thin evidence concerning Mary

8

With respect to the penalty phase, even had the trial court allowed counsel to present

9

similar evidence about Mary Magoon, such as her prior weapon possession and the

10

speculation that she might have been going for a gun, the Court remains similarly

11

unpersuaded that this evidence would have resulted in a verdict of life in prison rather than

12

the death penalty for her murder. Again, Mary Magoon was found rooms away from a

13

weapon, and while there is evidence indicating she was beaten with the air rifle, there is no

14

indication that she wielded a weapon at any point during the murders. Instead, she was

15

murdered in her pajamas, with a pacifier in her hand and a baby blanket at her feet, near

16

enough to her three year old son that the bullet that struck his head was possibly aimed at,

17

and first hit, her hand or arm. Based on a review of the record, Court finds no possibility

18

that the omission of the evidence at issue “had substantial and injurious effect or influence

19

in determining the jury’s verdict” at the penalty phase. Brecht, 507 U.S. at 637.

20

After reviewing the record, it is clear that the California Supreme Court’s rejection

21

of Claim 6 was not contrary to, or an unreasonable application of, clearly established

22

federal law, nor has Petitioner shown that it was based on an unreasonable determination

23

of the facts. In addition, any error is clearly harmless. Petitioner does not merit relief on

24

Claim 6.

25

3.

26

Petitioner contends that the trial court erred in refusing to instruct the jury on

27

voluntary manslaughter with respect to the death of Mary Magoon, or allow the

28

presentation of evidence supporting that theory, and asserts that these actions “prevented

Claim 7

87
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1

petitioner from having his theory of the case considered by the jury with respect to

2

reasonable doubt as to the first-degree murder charge.” (SAP at 48.)

3
4
5
6
7
8
9
10
11
12

The California Supreme Court considered and rejected this claim on direct appeal,
reasoning as follows:
Defendant contends the trial court erred in refusing to instruct the jury
on the voluntary manslaughter of Mary Magoon as a lesser included offense
of murder, on the theory that her killing was committed either in sudden
quarrel/heat of passion or in unreasonable self-defense. Defendant claims the
court’s failure to so instruct deprived him of his due process right to have the
jury determine every material issue the evidence presented. Defendant again
points to Mary Magoon’s alleged propensity for violence and claims that her
alleged role in the family business may have led defendant to believe she was
“going for a weapon in the bathroom when killed.” Defendant asserts that this
evidence “supports a voluntary manslaughter instruction because it was
sufficient to deserve consideration by the jury, and a reasonable jury could
find it sufficiently persuasive to warrant a verdict of voluntary manslaughter.”

13
14
15
16
17
18
19
20
21
22

We disagree. “‘Manslaughter is “the unlawful killing of a human being
without malice.”’ [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 102,
24 Cal.Rptr.3d 507, 105 P.3d 1099, quoting § 192.) Even though a court must
instruct on general principles of law relevant to the issues the evidence raises,
“[a] court is not obligated to instruct sua sponte on voluntary manslaughter as
a lesser included offense in the absence of substantial evidence that the
defendant acted in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a)), or
that the defendant killed in ‘“‘unreasonable self-defense.’”’ [Citation.]”
(Benavides, at p. 102, 24 Cal.Rptr.3d 507, 105 P.3d 1099.) There was no
evidence that the killing of Mary Magoon involved sudden quarrel/heat of
passion or unreasonable self-defense, and therefore no support for a voluntary
manslaughter instruction.
Hoyos, 41 Cal. 4th at 913-14.

23

“It is well-settled that a criminal defendant is entitled to a jury instruction ‘on any

24

defense which provides a legal defense to the charge against him and which has some

25

foundation in the evidence, even though the evidence may be weak, insufficient,

26

inconsistent, or of doubtful credibility.’” United States v. Sotelo-Murilo, 887 F.2d 176,

27

178 (9th Cir. 1989), quoting United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir.

28

1988); see also Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999), citing United States v.
88
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1

Mason, 902 F.3d 1434, 1438 (9th Cir. 1990). In Beck v. Alabama, 447 U.S. 625 (1980),

2

the Supreme Court held that failing to instruct a capital jury on a lesser-included charge

3

supported by the evidence violates the Constitution, stating that “when the evidence

4

unquestionably establishes that the defendant is guilty of a serious, violent offense- but

5

leaves some doubt with respect to an element that would justify conviction of a capital

6

offense- the failure to give the jury the ‘third option’ of convicting on a lesser included

7

offense would seem inevitably to enhance the risk of an unwarranted conviction.” Id. at

8

637.

9

At trial, defense counsel requested instructions on both second-degree murder and

10

manslaughter with respect to Mary Magoon, arguing that “the entire sequence of events

11

took place within a relatively short period of time, so that the violence suffered by Mary

12

Magoon was in close proximity to the violence suffered by Daniel Magoon by most

13

arguable theories of the case. And that were he to be killed in the heat of passion, it’s not

14

completely impossible or implausible that that heat of passion continued over to her as a

15

co-partner and ultimately co-victim.” (RT 3922.) Counsel specifically cited James

16

Johnson’s statement that Mary Magoon had previously used a Beretta-type gun, which was

17

similar to the Helwan connected to the crimes. (RT 3923.) The trial court rejected the

18

request, stating that “whether she had a gun in the past or didn’t have a gun in the past is

19

absolutely irrelevant to her credit,” and concluding that “there is just no evidence that

20

would support a voluntary manslaughter instruction or conviction.” (RT 3924.)

21

Petitioner argues that there was actually “ample” evidence to support a manslaughter

22

instruction, considering her involvement in her husband’s drug-dealing activities, the

23

weapons in their home, and the cocaine in her system. (See Pet. Brief at 1513, Reply at 50-

24
25

26

In the merits brief, Petitioner also supports his contention that there was “ample”
evidence of a potential threat from Mary Magoon by erroneously arguing, as was done in
support of Claim 6, that Mary “was shot in the immediate proximity of a M1 rifle concealed
in the bathroom where she was found.” (Pet. Brief at 15.) Again, the record reflects that

27
28

13

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1

52.) As discussed above in Claim 6, however, the presence of cocaine in her system does

2

not support the defense theory, given that there is no indication she acted violent or

3

aggressive when under the influence. Nor does Petitioner offer any actual evidence of her

4

direct involvement in her husband’s drug dealing activities - the fact that she lived in the

5

home and was likely aware of the drugs and weapons does not establish that she was a

6

participant, as the trial testimony on the matter only went to Daniel Magoon’s involvement.

7

Finally, the crime scene evidence offers no support for, and actually undermines, a

8

manslaughter theory. Under California law, “[a] court is not obligated to instruct sua

9

sponte on voluntary manslaughter as a lesser included offense in the absence of substantial

10

evidence that the defendant acted in a ‘sudden quarrel or heat of passion’, or that the

11

defendant killed in ‘unreasonable self-defense,’” People v. Benavides, 35 Cal. 4th 69, 102

12

(2005) (internal and external citations omitted). As discussed in greater detail above, Mary

13

Magoon died in her pajamas in the hallway bathroom of her home, several rooms away

14

from any weapons, having been beaten numerous times on the skull and body and shot in

15

the back of the head. There is also no indication that Mary Magoon used or wielded any

16

weapon that evening, even as Petitioner points to her prior possession of a gun years before

17

the murder and Johnson’s speculation that she could have been going for a gun. Yet,

18

instead of any such evidence, Mary was found holding her three-year-old son’s pacifier in

19

her hand, with strands of hair similar to her son’s also found clutched in her hand, and a

20

baby blanket between her legs. The evidence also reflected that her son may have been

21

near her when he was shot, as the bullet which hit him was consistent with having passed

22

through her hand or arm before striking his head. Petitioner fails to demonstrate that this

23

theory of the crime had any support, much less “some foundation in the evidence” so as to

24

warrant instruction. See Sotelo-Murilo, 887 F.2d at 178. Considering this record, it is

25

clear that the California Supreme Court was not unreasonable in concluding that: “There

26

27
28

the M-1 rifle was located in the master bedroom bathroom, not the hallway bathroom where
Mary Magoon was found, and does not support Petitioner’s argument. (See RT 3040-43.)
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09cv0388 L (NLS)

1

was no evidence that the killing of Mary Magoon involved sudden quarrel/heat of passion

2

or unreasonable self-defense, and therefore no support for a voluntary manslaughter

3

instruction.” Hoyos, 41 Cal. 4th at 914.

4

Nor has Petitioner demonstrated that the trial court’s ruling violated Beck, as

5

Petitioner’s jury was instructed to consider the lesser-included offense of second-degree

6

murder in the death of Mary Magoon. (RT 4258, 4283-88.) In this case, unlike in Beck,

7

the jury was provided with the options of first-degree murder and acquittal, as well as a

8

“third option” of convicting Petitioner of the non-capital charge of second-degree murder.

9

Id., 447 U.S. at 637. Petitioner fails to demonstrate that this procedure runs afoul of Beck

10

or constitutes a due process violation. Indeed, the Ninth Circuit has plainly stated that “jury

11

instructions are not required as to all possible lesser-included offenses.” Beardslee v.

12

Woodford, 358 F.3d 560, 576 (9th Cir. 2003) (trial court did not err in declining to instruct

13

on manslaughter where jury could consider both second-degree murder or first degree-

14

murder without special circumstances as lesser included offenses to capital murder, as “the

15

jury had more than the simple all-or-nothing choice at issue in Beck.”), citing Murtishaw

16

v. Woodford, 255 F.3d 926, 955 (9th Cir. 2001) (trial court’s failure to instruct on imperfect

17

self-defense, where jury was instructed on both second-degree murder and manslaughter,

18

did not force the jury into an “all or nothing” choice in violation of Beck).

19

Not only does Petitioner fail to show that the evidence warranted a manslaughter

20

instruction, he also fails to demonstrate that such an instruction was dictated by Beck, given

21

that the jury was given the lesser-included option of second-degree murder. The claim is

22

without merit. Accordingly, the Court cannot conclude that the California Supreme

23

Court’s rejection of this claim was contrary to, or an unreasonable application of, clearly

24

established federal law, or that it was based on an unreasonable determination of the facts.

25

Habeas relief is not warranted on Claim 7.

26

///

27

///

28

///
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09cv0388 L (NLS)

1

4.

2

Petitioner contends that the prosecutor repeatedly referenced torture with respect to

3

the death of Mary Magoon, despite the fact that the jury was not instructed on torture nor

4

was required to find that it had occurred, and that Petitioner “was substantially prejudiced

5

by the prosecutor’s emphasis with the trial court’s consent that the case involved torture,”

6

violating his rights under the Fifth, Sixth, and Fourteenth Amendments. (SAP at 50-51.)

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Claim 8

On direct appeal, the California Supreme Court rejected this claim with the
following reasoned opinion:
Defendant contends the court violated his rights to due process, a fair
trial, and a reliable sentence under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution because the prosecution
misused the law related to conspiracy, and effectively charged defendant with
murder by torture, when it listed the torture of Mary Magoon as one of 10
overt acts in the conspiracy to commit robbery count (a noncapital offense for
which defendant and Alvarado were charged and found guilty). Defendant
further contends that the prosecutor’s references to torture during the trial had
the effect of trying defendant for murder by torture, even though neither
codefendant was so charged, and the trial court did not instruct the jury in any
definition of torture. Defendant does not specify whether the asserted error is
based on prosecutorial misconduct in using the word “torture” or the trial
court’s failure to instruct the jury in the legal elements of torture, but we
discern no error under either theory. Defense counsel never objected to the
prosecution’s use of the word “torture” in the information or at trial. For this
reason, we consider any claim based on the prosecution’s use of the word
“torture” forfeited. (Jenkins, supra, 22 Cal.4th at p. 1000, 95 Cal.Rptr.2d 377,
997 P.2d 1044.) In addition, as we explain, even if defendant did not forfeit
the issue, he fails to show prejudice.
1. Torture as an Overt Act

23
24
25
26
27
28

Count 1 of the information charged both codefendants with conspiracy
to commit robbery. It listed 10 overt acts: (1) arming themselves with ninemillimeter pistols; (2, 3) driving to Daniel Magoon’s residence and entering
it; (4) shooting and murdering Daniel Magoon; (5) torturing Mary Magoon;
(6) shooting and murdering Mary Magoon; (7) shooting and wounding J.; (8–
10) stealing Daniel Magoon’s marijuana, nine-millimeter Helwan pistol, and
money. The information charged murder generally, and did not specify first
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1
2
3
4

degree murder by torture under section 189. Defendants were not charged with
the crime of torture under section 206, nor was torture alleged as a special
circumstance under section 190.2, subdivision (a)(18). The prosecution
submitted but, on defense counsel’s objection, withdrew a first degree murder
by torture instruction. The court did not instruct the jury on any torture
definition.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

For the conspiracy count, defendant cites no authority holding the trial
court was required to instruct the jury on the meaning of the word “torture,”
as an overt act. “A court has no sua sponte duty to define terms that are
commonly understood by those familiar with the English language, but it does
have a duty to define terms that have a technical meaning peculiar to the law.”
(People v. Bland (2002) 28 Cal.4th 313, 334, 121 Cal.Rptr.2d 546, 48 P.3d
1107.) In the information, the word “torture” was used in its commonly
understood sense to describe an overt act, not as part of a legal definition of
conspiracy. Overt acts are not required to be crimes. (People v. Marquez
(1994) 28 Cal.App.4th 1315, 1325–26, 33 Cal.Rptr.2d 821.) Because there is
no indication the word “torture” was being used in a technical legal sense, the
trial court had no sua sponte duty to define the term in the conspiracy count.
Even assuming the trial court erred in not instructing on the meaning of
the word “torture” as an overt act, any error was harmless under any standard.
(Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705
[federal constitutional error assessed under harmless beyond a reasonable
doubt standard]; People v. Watson (1956) 46 Cal.2d 818, 836–837, 299 P.2d
243 [state law error assessed under reasonable probability standard]; People
v. Flood (1998) 18 Cal.4th 470, 490, 502–504, 76 Cal.Rptr.2d 180, 957 P.2d
869 [instructional error subject to harmless error review].) Substantial
evidence supported the other nine overt acts, any one of which also supported
the jury’s guilty verdict on the conspiracy count. (People v. Russo (2001) 25
Cal.4th 1124, 1128, 108 Cal.Rptr.2d 436, 25 P.3d 641 [jury need not
unanimously agree on the same overt act to convict for conspiracy].)
2. First Degree Murder by Torture
Defendant contends the court should have instructed the jury on the
legal elements of torture. But because defendant was not charged with the
separate crime of torture under section 206, or torture as a special
circumstance under section 190.2, subdivision (a)(18), the trial court had no
duty to instruct on either. Murder by torture is a specified statutory basis for
first degree murder. (§ 189.) The information charging defendant with murder
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09cv0388 L (NLS)

1
2
3
4
5
6
7
8
9
10
11
12

did not specify first degree murder by torture, but the accusatory pleading
need not specify the theory of first degree murder on which the prosecution
intends to rely. (See People v. Diaz (1992) 3 Cal.4th 495, 556–57, 11
Cal.Rptr.2d 353, 834 P.2d 1171 [information need not specify first degree
murder by poison].) Of course, even though the prosecutor did not charge first
degree murder by torture, he still might have presented the elements of murder
by torture to the jury in the course of presenting his case. But even assuming
the prosecutor, in effect, developed a murder by torture theory at trial and even
assuming the trial court had a duty to instruct on first degree murder by torture,
defendant can show no possible prejudice from the absence of the instruction.
The jury was instructed on two theories supporting a guilty verdict for first
degree murder: premeditation and felony murder. The jury found defendant
guilty of first degree murder as to Mary Magoon based on either or both of
those theories. There was no possible prejudice to defendant by the trial
court’s failure to provide the jury with a third theory for returning a verdict of
first degree murder. Whether the jury accepted or rejected this third theory
would not have changed the verdict of first degree murder it returned based
on the other two theories.

13
14

Hoyos, 41 Cal. 4th at 914-16. The state supreme court also rejected Petitioner’s contention

15

that the trial court’s ruling resulted in prejudice with respect to his penalty phase

16

proceedings. See id. at 927 fn. 38 (“Because we discern no error in any area of the guilt

17

phase, we reject defendant’s claims of any prejudicial effect in the penalty phase arising

18

from these or any other guilt phase rulings.”)

19

Habeas relief may be warranted on a claim of state instructional error if the error in

20

question “so infected the entire trial that the resulting conviction violates due process.”

21

McGuire, 502 U.S. at 72, quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973). “[I]t is

22

well established that the instruction ‘may not be judged in artificial isolation,’ but must be

23

considered in the context of the instructions as a whole and the trial record.” McGuire, 502

24

U.S. at 72, quoting Cupp, 414 U.S. at 147. Even if constitutional error is found to have

25

occurred, relief remains unavailable unless that error had a “substantial and injurious effect

26

or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637.

27

Petitioner asserts that trial court’s failure to define torture violated his constitutional

28

rights because the jury could have used an “ad hoc” definition to find the overt act true at
94
09cv0388 L (NLS)

1

the guilt phase, and could have relied on that same definition as a basis for their penalty

2

phase verdict. In the merits brief, Petitioner clarifies that he is not advocating that torture

3

should have been offered as a third theory of first degree murder, but that the absence of

4

an instruction defining torture precluded the jury from concluding torture was not

5

applicable to his case. (Pet. Brief at 16-17.) In the Reply, Petitioner outlines differences

6

between the dictionary definition of torture and the definition of torture under section 206

7

of the California Penal Code, and asserts that because torture was alleged as an overt act,

8

and one overt act must be found true in order to convict Petitioner of the conspiracy charge,

9

torture should have been defined for the jury. (Reply at 54.)

10

Petitioner fails to cite to any clearly established authority supporting his claim of

11

constitutional error. He generally cites to and quotes from Lanzetta v. New Jersey, 306

12

U.S. 451, 453 (1939), to argue that “[n]o one may be required at peril of life, liberty or

13

property to speculate as to the meaning of penal statutes.” (Reply at 53.) Yet, again, that

14

is not the situation presented here. Petitioner was not charged with torture as either a

15

special circumstance or as a theory of murder, as torture was instead alleged as one of ten

16

overt acts comprising the conspiracy charge, along with other overt acts comprised of

17

similarly common terms, including that the defendants “armed themselves with 9mm

18

semiautomatic pistols,” that they “drove over to” and “entered” the victims’ residence, that

19

they “shot and murdered” each of the two adult victims, that they “shot and wounded” the

20

child victim, and that they “stole” Daniel Magoon’s Helwan, marijuana, and money. (CT

21

28.)

22

The California Supreme Court concluded that the trial court did not err in failing to

23

define torture, given that torture was not charged as a theory of murder, but instead “was

24

used in its commonly understood sense to describe an overt act, not as part of a legal

25

definition of conspiracy.” Hoyos, 41 Cal. 4th at 915. Ninth Circuit authority is in accord

26

with the state court’s conclusion. “Whether a term in a jury instruction requires definition

27

normally turns on whether it expresses a concept within the jury’s ordinary experience.”

28

United States v. Tirouda, 394 F.3d 683, 688 (9th Cir. 2005). In Tirouda, the Ninth Circuit
95
09cv0388 L (NLS)

1

rejected an allegation of error arising from the trial court’s failure to define term

2

“accomplice.” Id. at 689; see also United States v. Lloyd, 807 F.3d 1128, 1165 (9th Cir.

3

2015) (rejecting claim of trial court error in failing to define “reckless disregard,” reasoning

4

that “[r]ecklessness in this context is ‘within the comprehension of the average juror’ and

5

needs no special definition.”), quoting Tirouda, 394 F.3d at 688-89. Here, torture was

6

alleged as one of ten overt acts, and the use of the term in the overt act “torturing Mary,”

7

did not require a definition, because, similar to the terms used in the other overt acts such

8

as “stole” or “drove over to,” it was capable of being understood without additional

9

definition and “express[ed] a concept within the jury’s ordinary experience.” Id. at 689.

10

Moreover, reviewing Petitioner’s contention in light of the instructions as a whole, as

11

required, there is no support for a conclusion that the trial court’s failure to specifically

12

define torture for the jury “so infected the entire trial that the resulting conviction violates

13

due process.” McGuire, 502 U.S. at 72, quoting Cupp, 414 U.S. at 147.

14

In any event, even were Petitioner able to demonstrate error, he fails to show

15

prejudice. First, there is no support for Petitioner’s speculative argument that the jury

16

formulated their own erroneous definition of torture and relied on that definition in arriving

17

at the guilt and penalty phase verdicts. Petitioner argues that “[t]he question is not whether

18

Count One conspiracy was adequately proved, but rather whether the jury likely found the

19

perpetrator had tortured Mary under a broad definition that exceeded the scope of the

20

criminal law definition, and relied on that ‘circumstance of the offense,’ Penal Code section

21

190.3(a), as the basis to return a death verdict as to the Mary Magoon murder.” (Reply at

22

56.) There is nothing in the record to support a conclusion that the jury was confused or

23

that, if confusion arose, the jurors created their own definition of torture rather than inquire

24

with the trial court as to the definition. Indeed, just prior to guilt phase deliberations, the

25

trial court instructed the jurors that “if in going through these instructions in deliberations

26

you have any questions about how one instruction perhaps relates to another instruction or

27

anything at all, don’t be at all reluctant to write out your question. Give it to the bailiff.

28

He’ll give it to the court. I’ll make the lawyers see it as well. Then we’ll do what we can
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to answer the question. Any deliberating juror has the right to ask any questions.” (RT

2

4259.) A jury is presumed to understand and follow the trial court’s instructions. Weeks

3

v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 211 (1989).

4

Petitioner nonetheless asserts that the failure to define torture “likely explains the

5

jury’s death verdict as to Mary Magoon but not as to Dan Magoon.” (Reply at 53; see also

6

Pet. Brief at 17.) This contention is purely speculative and is belied by the record. As

7

discussed above in Claim 6, the evidence also showed that while Mary was killed in close

8

proximity to her child, in her nightclothes, several rooms away from any weapon, there

9

was evidence that Daniel Magoon had a long-standing and direct involvement in drug

10

dealing and selling weapons, past interactions with Petitioner at his home, a propensity for

11

violence, and that he was known to answer the door armed. Petitioner is correct that the

12

prosecutor repeatedly asserted that Mary had been tortured in his penalty phase arguments

13

to the jury, but the jury was entitled to consider the circumstances of the crime itself in

14

making their penalty phase decision. The plain facts were that the crimes were extremely

15

brutal and amounted to significant evidence in aggravation even in the absence of a specific

16

definition of torture, as Mary suffered numerous blunt force injuries to her head and back

17

prior to her death, as well as several gunshot wounds, including one to the back of the head.

18

Her 3 year old son was shot and was likely nearby at the time of his wounding and her

19

death. Her husband had also been shot and killed. In light of the substantial evidence in

20

aggravation from the crimes alone, Petitioner fails to carry the “heavy burden” of

21

demonstrating that the absence of specific instruction on torture resulted in prejudice. See

22

Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (“‘An omission, or an incomplete

23

instruction, is less likely to be prejudicial than a misstatement of the law’ and, thus, a

24

habeas petitioner whose claim involves a failure to give a particular instruction bears an

25

‘especially heavy burden.’”), quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In

26

the absence of any record indication that the instructions were confusing, or any showing

27

aside from Petitioner’s own speculation that the jurors relied on an inaccurate

28

understanding of the term torture in rendering their verdict, the Court cannot conclude that
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the asserted error resulted in prejudice. Petitioner fails to demonstrate that the trial court’s

2

failure to define torture “had substantial and injurious effect or influence in determining

3

the jury’s verdict” at either the guilt or penalty phases. Brecht, 507 U.S. at 637.

4

Because Petitioner fails to show that the state court adjudication of this claim was

5

contrary to, or an unreasonable application of, clearly established federal law, or that it was

6

based on an unreasonable determination of the facts, and because any error is harmless,

7

habeas relief is unavailable as to Claim 8.

8

5.

9

Petitioner asserts that the trial court violated his due process rights by erroneously

10

instructing the jury regarding the special circumstance allegations, which reduced the

11

mental state required for aiding and abetting liability, in violation of ex post facto laws.

12

(SAP at 52-53.)

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Claim 9

The California Supreme Court considered and rejected this claim on direct appeal,
as follows:
Defendant filed a pretrial motion seeking dismissal of the special
circumstance allegations on the ground they were an ex post facto application
of the laws and therefore a violation of his state and federal rights to due
process. The trial court denied the motion. On appeal, defendant contends the
trial court erred in denying the motion and as a consequence violated his right
to due process of law under the Fifth and Fourteenth Amendments to the
United States Constitution. For the reasons discussed below, we discern no
error and no violation of defendant’s due process rights.FN8
FN8. Regarding this claim and most other claims raised on
appeal, defendant contends that the asserted error or misconduct
violated several constitutional rights. In many instances in which
defendant raised issues at trial, however, he failed explicitly to
make some or all of the constitutional arguments he now asserts
on appeal. Unless otherwise indicated, his appellate claims either
required no action by defendant to preserve them, or involved
application of the same facts or legal standards defendant asked
the trial court to apply, accompanied by a new argument that the
trial error or misconduct had the additional legal consequence of
violating the federal Constitution. To that extent, defendant has
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

not forfeited his new constitutional claims on appeal. (People v.
Guerra (2006) 37 Cal.4th 1067, 1084, fn. 4, 40 Cal.Rptr.3d 118,
129 P.3d 321.) On the merits, no separate constitutional
discussion is required, or provided, where rejection of a claim
that the trial court erred on the issue presented to that court
necessarily leads to rejection of any constitutional theory or
“gloss” raised for the first time here. (People v. Boyer (2006) 38
Cal.4th 412, 441, fn. 17, 42 Cal.Rptr.3d 677, 133 P.3d 581.)
Defendant was charged with robbery and burglary special
circumstances under section 190.2, as amended in 1990 by Proposition 115.
Defendant contends that because this court decided the constitutionality of
Proposition 115’s amendments to section 190.2 after the commission of his
crimes, charging the special circumstances violated the ex post facto clauses
of the state and federal Constitutions. He also contends the special
circumstances charges denied him due process because he lacked notice that
he could be charged with the special circumstances.
Addressing defendant’s claim requires a brief review of the history of
Proposition 115. In June 1990, the electorate passed both Propositions 114
and 115, which contained different versions of section 190.2. (People v.
Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1545, 28 Cal.Rptr.2d 46
(Clark).) Under the Proposition 114 version of section 190.2, the Legislature
required a finding of intent to kill before the trier of fact could impose the
death penalty on one who was not the actual killer. (Clark, supra, 22
Cal.App.4th at pp. 1544–1545, 28 Cal.Rptr.2d 46.) Under the Proposition 115
version of section 190.2, however, the felony-murder rule applied, with no
required finding that a defendant had an intent to kill. (Ibid.) The passage of
Propositions 114 and 115 spawned litigation that challenged whether
Proposition 115’s amendments to section 190.2 were effective. (Clark, at p.
1546, 28 Cal.Rptr.2d 46.) On June 25, 1992, we settled this issue in Yoshisato
v. Superior Court (1992) 2 Cal.4th 978, 992, 9 Cal.Rptr.2d 102, 831 P.2d 327.
Yoshisato held that Proposition 115’s amendments to section 190.2 were
operative, and went into effect the day of Proposition 115’s passage in June
1990. The crimes in the present case were committed on May 26–27, 1992.
Defendant contends that the law was “unsettled” for the two-year
period between the passage of Proposition 115 in June 1990, and our decision
in Yoshisato on June 25, 1992, and that he lacked notice that a death judgment
was proper in light of the actions constituting the two special circumstances
charged. Defendant concedes that his argument fails under Clark, supra, 22
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1

Cal.App.4th at page 1541, 28 Cal.Rptr.2d 46. He apparently asks us to
disapprove that case.

2
3

We decline to do so. As Clark observed, both the United States and
California Constitutions forbid only “‘the retroactive application of an
“unexpected” or “unforeseeable” judicial enlargement of a criminal statute.’”
(Clark, supra, 22 Cal.App.4th at p. 1550, 28 Cal.Rptr.2d 46.) Our decision in
Yoshisato was neither “unexpected” nor “unforeseeable”; all that can be said
of the state of the law during the two-year period was that it was “unsettled.”
(Clark, supra, 22 Cal.App.4th at p. 1550, 28 Cal.Rptr.2d 46.) Defendant
therefore was on notice that this court might find (as indeed we did) that the
provisions of Proposition 115 were controlling. Consequently, the trial court
did not err in denying defendant’s motion to dismiss the special
circumstances.

4
5
6
7
8
9
10
11

Hoyos, 41 Cal. 4th at 889-90

12

“‘[A]ny statute which punishes as a crime an act previously committed, which was

13

innocent when done; which makes more burdensome the punishment for a crime, after its

14

commission, or which deprives one charged with crime of any defense available according

15

to law at the time when the act was committed, is prohibited as ex post facto.’” Collins v.

16

Youngblood, 497 U.S. 37, 42 (1990), quoting Beazell v. Ohio, 269 U.S. 167, 169-70

17

(1925); see also Bouie v. City of Columbia, 378 U.S. 347, 353 (1964) (“An ex post facto

18

law has been defined by this Court as one that makes an action done before the passing of

19

the law, and which was innocent when done, criminal; and punishes such action, or that

20

aggravates a crime, or makes it greater than it was, when committed.”) (internal quotations

21

omitted).

22

Of particular relevance to the instant claim, the Supreme Court has also stated that

23

“[i]f a judicial construction of a criminal statute is unexpected and indefensible by

24

reference to the law which had been expressed prior to the conduct in issue, [the

25

construction] must not be given retroactive effect.” Rogers v. Tennessee, 532 U.S. 451,

26

457 (2001), quoting Bouie, 378 U.S. at 354 (internal quotations omitted) (brackets in

27

original).

28

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As the state supreme court noted above, Propositions 114 and 115 each proposed

2

revisions to California Penal Code section 190.2, and both passed in the June 1990 election,

3

with Proposition 114 receiving a larger percentage of favorable votes. Petitioner asserts

4

that: “At the time of the homicides on May 26-27, 1992, it was reasonable to believe that

5

the special circumstance elements contained in Proposition 114 were the law of the state,

6

because that proposition received more votes. However, on June 25, 1992, after the

7

homicides in this case, the California Supreme Court held in Yoshisato v. Superior Court,

8

2 Cal.4th 978 (1992) that Proposition 115, ‘reckless disregard’ mens rea was the law of the

9

state, notwithstanding that Proposition 115 had received fewer votes.” (SAP at 52.)

10

Petitioner argues that he was prejudiced “because his convictions for first-degree murder

11

could have been predicated on conspiracy liability without any determination of his actual

12

mental state. Subsequently, the jury could have found the special circumstances allegations

13

true based solely on the mental state that he acted in reckless disregard of human life,” and

14

argues that the jurors “would not likely have found the special circumstances allegations

15

true if they had been instruct [sic] that the prosecution had to prove that he harbored express

16

malice.” (Id. at 53.)

17

After reviewing the law in existence at the time of the crimes in this case, it is evident

18

that the California Supreme Court’s decision in Yoshisato was neither “unexpected” nor

19

“indefensible.” Proposition 115 had been subject to multiple challenges before Yoshisato,

20

and had been twice upheld by the state supreme court. In Raven v. Deukmejian, 52 Cal.

21

3d 336 (1990), the California Supreme Court rejected a contention that Proposition 115

22

violated the single subject rule and upheld the majority of the proposition, including the

23

provisions relevant to this claim. See id. at 349, 356. Meanwhile, in Tapia v. Superior

24

Court (People), 53 Cal. 3d 282 (1991), the California Supreme Court held that only “certain

25

provisions addressing the conduct of trials, and certain other provisions changing the law

26

to the benefit of defendants” were applicable retrospectively to crimes committed prior to

27

the effective date of the proposition, while “[t]he remainder of the measure’s provisions

28

may not.” Id. at 286.
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“The critical question is whether the law changes the legal consequences of acts

2

completed before its effective date.” Weaver v. Graham, 450 U.S. 24, 31 (1981). At the

3

outset of the Tapia decision, the state supreme court indicated that “Proposition 115 took

4

effect on June 6, 1990, the day after the voters approved the measure.” Id. at 286. In

5

holding that the provisions which increased the punishment of certain criminal behavior

6

could only apply prospectively, explicitly citing the relevant portion of section 190.2 which

7

“provides that an accomplice, for a felony-murder special circumstance to be found true,

8

must have been a major participant and have acted with reckless indifference to human

9

life,” the state court reasoned that “[a]pplication of these provisions to crimes committed

10

before the measure’s effective date would be ‘retrospective’ because each would change

11

the legal consequences of the defendant’s past conduct.” Tapia, 53 Cal.3d at 298, quoting

12

Weaver, 450 U.S. at 31. The California Supreme Court specifically noted that “these

13

provisions may only be applied to prosecutions of crimes committed on or after June 6,

14

1990.” Tapia, 53 Cal. 3d at 299. Again, the crimes at issue in this case took place on May

15

26-27, 1992, nearly two years after the passage of Proposition 115 and over a year after

16

Tapia.

17

To the extent Petitioner relies on the state appellate court’s August 5, 1991 Yoshisato

18

decision, which concluded that Proposition 115 never became effective, that argument is

19

unavailing. In 1991, the California Court of Appeal heard a challenge to Proposition 115

20

similar to the argument advanced here - that Proposition 114, having received more votes,

21

was the effective law. As the appellate court acknowledged, the superior court rejected

22

that contention, concluding that: “‘Neither Proposition 114 nor the relevant provisions of

23

Proposition 115 purported to create a comprehensive regulatory scheme,’” and reasoning

24

that: “‘The will of the voters who approved both measures can be given effect.’” Yoshisato

25

v. Superior Court (People), 284 Cal.Rptr. 182, 184 (Cal. Ct. App. 1991). The state

26

appellate court disagreed with the superior court and held that: “Since Proposition 114

27

received more votes, Proposition 115’s rendition of section 190.2 never became operative.”

28

Id. at 183. But on October 24, 1991, over six months prior to the crimes at issue here, the
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1

California Supreme Court granted review of the appellate court’s decision. See Yoshisato

2

v. Superior Court (People), 818 P.2d 63 (1991). Thus, given the clear existence of

3

conflicting opinions on this very matter, coupled with two prior California Supreme Court

4

decisions upholding Proposition 115 and the pending review of the appellate court’s ruling,

5

it was not only foreseeable, but likely, that the state supreme court would again uphold

6

Proposition 115. See e.g. United States v. Rodgers, 466 U.S. 475, 484 (1984) (“And any

7

argument by respondent against retroactive application to him of our present decision, even

8

if he could establish reliance upon the earlier . . . decision, would be unavailing since the

9

existence of conflicting cases from other Courts of Appeals made review of that issue by

10

this Court and decision against the position of the respondent reasonably foreseeable.”)

11

Indeed, the California Supreme Court upheld Proposition 115, rejecting the argument that

12

114 and 115 were in conflict, and reasoning that the two propositions “sought to amend

13

section 190.2 in complementary or supplementary fashion.” Yoshisato, 2 Cal. 4th at 990.

14

Ultimately, Petitioner fails to demonstrate that the California Supreme Court’s

15

Yoshisato ruling was either “unexpected” or “indefensible” in light of Tapia and the other

16

cases discussed above. See Rogers, 532 U.S. at 457, quoting Bouie, 378 U.S. at 354.

17

Accordingly, the California Supreme Court reasonably found that the Yoshisato decision

18

was “neither ‘unexpected’ nor ‘unforeseeable’” and that the application of Proposition 115

19

to Petitioner’s case did not run afoul of the ex post facto prohibition. Because Petitioner

20

fails to show that the state court adjudication of this claim was contrary to, or an

21

unreasonable application of, clearly established federal law, or that it was based on an

22

unreasonable determination of the facts, habeas relief is not warranted on Claim 9.

23

6.

Claim 10

24

Petitioner contends the trial court erred in allowing the testimony of Brian Kennedy

25

about blood spatter in the victims’ home and trace blood evidence, arguing that the

26

“unreliability of Kennedy’s testimony and his bias in favor of the prosecution were of such

27

magnitude that its admission rendered the trial fundamentally unfair.” (SAP at 54-55.)

28

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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The state supreme court considered and rejected this claim on direct appeal, as
follows:
Defendant contends that prosecution blood spatter expert witness,
Deputy Sheriff Brian Kennedy, was biased and lacked proper qualification as
an expert. He claims Kennedy’s testimony (on crime reconstruction using
blood spatter analysis) violated defendant’s constitutional rights to a fair trial,
due process of law, and a reliable penalty determination. The testimony
described the blood spatter patterns the killings caused, other transfers of
blood (including “castoffs,” “wipes,” and drip trails), and blood pooling in
Daniel Magoon’s body. Defendant further contends the court violated
Evidence Code section 402 and his federal due process rights when it deferred,
until midtrial, any rulings on the admissibility of Kennedy’s testimony. For
the reasons discussed below, we conclude no error occurred.
The parties discussed the admissibility of Kennedy’s testimony during
in limine motions. Defense counsel made an oral objection to the testimony
under People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240
and Frye v. United States (D.C.Cir.1923) 293 F. 1013, raising the issue of
whether Kennedy had used correct procedures.FN20 The court ruled that Kelly
was inapplicable to Kennedy’s testimony. After reviewing Kennedy’s resume,
the trial court stated that there was no need to have an Evidence Code section
402 hearing on Kennedy’s qualifications, because Kennedy appeared
qualified. The trial court noted that the defense would have the opportunity to
voir dire Kennedy at trial to confirm his qualifications. At trial, defense
counsel did not object to Kennedy’s testimony.
FN20. Because the United States Supreme Court
abrogated the Frye formulation in federal trials in 1993, this rule
should more accurately be referred to now as the Kelly rule. (See
People v. Leahy (1994) 8 Cal.4th 587, 591, 34 Cal.Rptr.2d 663,
882 P.2d 321.)
As a preliminary matter, the People assert that defendant forfeited his
claims because he failed to object to Kennedy’s testimony either on the ground
that he was biased or that he lacked proper qualifications as an expert.
Defendant replies that trial counsel’s objection on Kelly and Frye grounds to
the scientific validity of the procedures followed by Kennedy is sufficient to
preserve the issue on appeal.FN21 But because the objection below neither
explicitly nor implicitly raised the issues of Kennedy’s bias or lack of
qualification, we conclude that defendant did forfeit the claims. (People v.
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09cv0388 L (NLS)

1
2
3
4
5
6

Jenkins (2000) 22 Cal.4th 900, 1000, 95 Cal.Rptr.2d 377, 997 P.2d 1044.)
FN21. Defendant appears to refer to the Kelly/Frye
objection below to support his contention that Kennedy lacked
proper expert qualification and was biased in the prosecution’s
favor. He does not raise a Kelly rule issue on appeal. A Kelly rule
claim would be unavailing in any case, as we have held that Kelly
is inapplicable to blood spatter testing. (People v. Clark (1993) 5
Cal.4th 950, 1018, 22 Cal.Rptr.2d 689, 857 P.2d 1099.)

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Even assuming that defendant’s claims were not forfeited, we find them
without merit. A claim that expert opinion evidence has been improperly
admitted is reviewed under the deferential abuse of discretion standard.
(People v. Panah (2005) 35 Cal.4th 395, 478, 25 Cal.Rptr.3d 672, 107 P.3d
790.) “Error regarding a witness’s qualifications as an expert will be found
only if the evidence shows the witness ‘“‘clearly lacks qualification as an
expert.’”’ [Citation.]” (People v. Farnam, supra, 28 Cal.4th at p. 162, 121
Cal.Rptr.2d 106, 47 P.3d 988.) The record does not show that Kennedy lacked
expert qualifications. Kennedy received a bachelor’s degree in Police Science
and Management and after becoming a police officer took supplemental
courses in crime scene reconstruction and bloodstain patterns. He lectured on
blood spatter evidence at an in-service school for criminal investigators and
prosecutors at San Jose State University. He had testified regarding blood
spatter evidence in superior courts throughout the state on numerous
occasions. He conducted blood spatter analysis for the Sacramento Sheriff’s
Department and went to homicide scenes. Kennedy’s educational background
and work experience fully qualified him to testify as an expert on blood spatter
evidence. (See People v. Combs (2004) 34 Cal.4th 821, 849, 22 Cal.Rptr.3d
61, 101 P.3d 1007.)
Defendant contends that Kennedy was biased because his report
included a section called “The Bludgeoning,” in which he opined that the eight
cast-off bloodstains in the hallway were likely caused by repeated blows to
Mary Magoon’s head by an instrument consistent with a nine-millimeter
handgun. The serology reports, however, showed that the blood at issue was
not Mary Magoon’s; it was D.’s.FN22 Defendant implies this discrepancy
shows Kennedy’s bias against the defendant in the face of scientific evidence
to the contrary. But the explanation for the apparent conflict, as Kennedy
testified at trial, was that his deadline for submitting the findings to the district
attorney’s office required him to write his report before the serology tests had
been completed, and he was asked to outline as many possibilities as he could,
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1
2
3
4

including the possibility that the blood in the hallway was Mary Magoon’s.
After the serology tests were returned, and prior to trial, Kennedy sought to
redact the pages of the report that dealt with the bludgeoning in the hallway,
but the trial court ruled that Kennedy’s entire report was the fair subject of
defense examination. Nothing in this record suggests Kennedy was biased in
any regard.

5
6

FN22. D. was not injured during the murders. His cast-off
bloodstains in the hallway apparently predated the murders.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

In addition, we find no merit in defendant’s contention that the trial
court violated Evidence Code section 402 and defendant’s due process rights
when it deferred until midtrial any rulings on the admissibility of Kennedy’s
testimony. The trial court did not defer its Evidence Code section 402 rulings
until midtrial; it made pretrial rulings on the two preliminary facts raised,
which were the scientific reliability of blood spatter testing (the Kelly rule
objection), and Kennedy’s qualifications to testify as an expert witness.FN23
FN23. Evidence Code section 400, et seq. set forth rules
for determining the existence or nonexistence of a preliminary
fact “when the existence of a preliminary fact is disputed.”
(Evid.Code, § 402, subd. (a).) A “‘preliminary fact’ means a fact
upon the existence or nonexistence of which depends the
admissibility or inadmissibility of evidence.” (Evid.Code, §
400.)
Defendant contends the court should have held an evidentiary hearing
before Kennedy was allowed to testify. The claim has no merit. Kennedy’s
resume sufficiently established his qualifications. In addition, the court
correctly concluded that blood spatter testing does not require Kelly scrutiny.
(People v. Clark, supra, 5 Cal.4th at p. 1018, 22 Cal.Rptr.2d 689, 857 P.2d
1099.) We therefore conclude no error occurred when the court admitted
Kennedy’s expert testimony.

23
24

Hoyos, 41 Cal. 4th at 909-11 (brackets in original). The state supreme court also rejected

25

Petitioner’s contention that the trial court’s ruling resulted in prejudice with respect to his

26

penalty phase proceedings. See id. at 927 fn. 38 (“Because we discern no error in any area

27

of the guilt phase, we reject defendant’s claims of any prejudicial effect in the penalty phase

28

arising from these or any other guilt phase rulings.”)
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1

As noted above, a claim of state law error arising from the erroneous admission of

2

evidence may warrant habeas relief only if “the admission of the evidence so fatally

3

infected the proceedings as to render them fundamentally unfair.” Jammal, 926 F.2d at

4

919; see also McGuire, 502 U.S. at 68-73.

5

The California Supreme Court was not unreasonable in rejecting this claim on the

6

basis that, even assuming Petitioner did not forfeit the claim by failing to object to

7

Kennedy’s alleged bias or lack of qualifications to testify as an expert, the trial court did

8

not err in allowing Kennedy to testify.

9

With respect to the area of anticipated expert testimony, the trial court noted that

10

Kelly/Frye did not appear to apply to blood spatter evidence, as the proposed testimony

11

“seem[s] to be based on expertise of an experienced detective, a number of seminars and

12

training sessions concerning blood spatter and physics, and the law of physics have been

13

around for an awful long time.” (RT 1201.) With respect to Kennedy in particular, the

14

trial court reasoned that: “From the standpoint of qualifications, taken at face value, Mr.

15

Kennedy seems to be a person of some substantial experience in law enforcement. He has

16

taken a number of courses concerning this topic and seems to be qualified to express

17

opinions in this area.” (RT 1201-02.) Thus, the trial court thoroughly reviewed Kennedy’s

18

qualifications, as well as his report and notes, prior to allowing his testimony.

19

The second component of Petitioner’s claim is that Kennedy was biased in favor of

20

the prosecution, further undermining the reliability of his testimony when coupled with his

21

lack of qualifications, and that the trial court erred in admitting the expert testimony. As

22

an initial matter, Petitioner fails to cite to any clearly established law supporting his

23

contention that an expert’s purported bias constitutes grounds for excluding such

24

testimony. See e.g. United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 2001)

25

(“Generally, evidence of bias goes toward the credibility of a witness, not his competency

26

to testify, and credibility is an issue for the jury.”); United States v. Preciado-Gomez, 529

27

F.2d 935, 942 (9th Cir. 1976) (“The existence of bias or prejudice of one who has expressed

28

an expert opinion can always be examined into on the cross-examination of such expert; as
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1

well as the facts upon which his expert opinion was based.”) In any event, Petitioner also

2

fails to demonstrate that Kennedy was biased in favor of the prosecution. Petitioner points

3

to a portion of Kennedy’s report entitled “The Bludgeoning,” in which Kennedy offers

4

analysis indicating that cast-off bloodstains found on a wall and door to the master bedroom

5

were created when Mary Magoon sustained blunt force injuries from an instrument

6

consistent with a handgun. Because testing later revealed the bloodstains in question were

7

not from victim Mary Magoon, Petitioner asserts that the report confirms Kennedy’s bias

8

against the defense and the falsity of his testimony.

9

However, as the trial court and the California Supreme Court each thoroughly

10

discussed, Kennedy clearly stated that he submitted his report prior to the completion of

11

serology tests and in fact sought to redact that portion of his report once the results showed

12

the blood did not belong to Mary Magoon. (See RT 3543-44); Hoyos, 41 Cal. 4th at 910-

13

11. The trial court indicated that “this type of opinion is one that an expert is a [sic] entitled

14

to express in [sic] the basis of a hypothetical. And that’s essentially what he has done.

15

He’s said assuming all the blood on the premises belong to one person, why, these would

16

be my opinions. And that is what he said. He conditioned his opinions on the hypothetical.

17

He underlines it in his report.” (RT 3544.) Indeed, Kennedy’s report includes an

18

underlined section, prior to the discussion of the blood in the hallway area, stating that:

19

“Due to the time constraints of the Court, the following assessment of bloodstain patterns

20

is being made prior to the return of all the presumptive and serological tests requested of

21

stains suspected to be blood. The following is based on the assumption that all stains

22

addressed are blood, and the person to whom a pattern is attributed is based upon the

23

consistency of the type of pattern and the injuries suffered. Upon receipt of completed

24

serological tests the opinions expressed may be subject to modification.” (Lodgment No.

25

112, Ex. 76 at 8.) In admitting the testimony and report, the trial court ruled that Kennedy

26

could be subject to questions concerning the entire report, including “The Bludgeoning”

27

section, noting that “everything contained within this report is fair game.” (RT 3546.) In

28

fact, both Petitioner’s defense counsel and co-defendant’s counsel cross-examined
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Kennedy extensively on the matter. (See RT 3639-48, 3648-55, 3659-62.)

2

For instance, counsel elicited that the blood Kennedy ascribed in his report as being

3

cast-off stains from head injuries sustained by Mary Magoon, instead actually “doesn’t

4

belong to anybody who died in this house.” (RT 3645.) Kennedy stated that he had no

5

way of knowing the age of the bloodstains and had to assume it was part of the crime scene,

6

and explained that while the crime occurred in 1992, “I was on the scene in ‘93, a year

7

later; and this was a very dark hallway, and the people that were living in the house didn’t

8

even know the stains were there because it was so dark. For me to assume the age of that

9

stain in a crime scene that’s over a year old would have been very irresponsible on my part

10

not to assess it as part of the crime scene until proved otherwise.” (RT 3647.)

11

As for the portion of his report titled “The Bludgeoning,” Kennedy testified that “all

12

I had was stain on a wall and head injuries to a person who was mobile in the crime scene

13

at one time. So I had to put two and two together. I preface the entire report with the fact

14

that I did not have serology results back that I had requested, and that I was required by the

15

Court to author this report prior to the results of the serology.” (RT 3647-48.) On cross-

16

examination, Kennedy admitted the title of that section “was probably a poor choice of

17

words. I just used that as a break in the report to assess that as possibly part of the

18

bludgeoning.” (RT 3648.) During redirect, Kennedy explained that “I was told that due

19

to time constraints set by the Court that I was to give as much of an assessment as I possibly

20

could and outline as many possibilities as were indicated.” (RT 3655.) On recross,

21

Kennedy was again questioned about the title of the section and stated simply that: “I

22

labeled it as a bludgeoning because I had a victim who has been bludgeoned.” (RT 3661.)

23

When counsel inquired further, asking if Kennedy made a “great big mistake in that

24

conclusion,” Kennedy again indicated that: “In maybe terming - - putting that term as a

25

topic for that group of paragraphs, maybe I made a mistake in choice of words.” (RT

26

3661.)

27

The trial court clearly considered Kennedy’s qualifications and the substance of his

28

testimony, and did not abuse its discretion in admitting the evidence. Petitioner fails to
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1

offer any authority supporting his contention that an expert’s alleged bias constitutes

2

grounds for excluding such testimony. The record also reflects that the defense had, and

3

utilized, the opportunity to cross-examine Kennedy on the basis of his opinions and

4

specifically on the contested section of his report concerning the blunt force injuries

5

suffered by Mary Magoon.

6

Based on a review of this record, the California Supreme Court reasonably

7

concluded that Kennedy was qualified to testify and that “no error occurred” in admitting

8

his testimony. Hoyos, 41 Cal. 4th at 911. Petitioner fails to demonstrate that the admission

9

of Kennedy’s testimony deprived Petitioner of his due process rights to a fair trial or

10

rendered his trial “fundamentally unfair.” Jammal, 926 F.2d at 919. The California

11

Supreme Court’s rejection of this claim was neither contrary to, nor an unreasonable

12

application of, clearly established law, nor was it based on an unreasonable determination

13

of the facts. Habeas relief is not warranted on Claim 10.

14

7.

Claim 11

15

Petitioner asserts that the admission of numerous graphic photos, which “depicted

16

close-ups of bloody wounds from the crime scene, and also included autopsy photos,”

17

rendered his trial unfair and violated his right to due process. (SAP at 56.)

18
19
20
21
22
23

On direct appeal, the California Supreme Court considered and rejected this claim
as follows:
Defendant contends that the trial court erred when it admitted crime
scene and autopsy photographs, and in so doing violated his constitutional
rights to a fair trial, due process of law, and a reliable sentence. Having viewed
the photographs, and for the reasons discussed below, we conclude the court
neither abused its discretion nor violated defendant’s constitutional rights in
admitting the photographs.

24
25
26
27
28

Alvarado filed in limine motions, in which defendant joined, to exclude
crime scene and victim autopsy photographs as irrelevant, cumulative, and
more prejudicial than probative. At a pretrial hearing, the trial court examined
the photographs, and admitted some while excluding others. Defendant
apparently challenges all of the photographs admitted over defense objection,
and claims they were not relevant or, in the alternative, that they were
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1
2
3
4
5
6
7
8
9
10

cumulative and inflammatory. (Evid.Code, § 352.)
In determining whether there was an abuse of discretion, we address
two factors: (1) whether the photographs were relevant under Evidence Code
section 210, and (2) if they were relevant, whether the trial court abused its
discretion under Evidence Code section 352 in finding that the probative value
of the evidence was not substantially outweighed by the probability that its
admission would create a substantial danger of undue prejudice. (People v.
Carter (2005) 36 Cal.4th 1114, 1166, 32 Cal.Rptr.3d 759, 117 P.3d 476.)
Defendant presents no credible argument that the photographs were irrelevant.
The photos were clearly relevant to the determination of many disputed facts
in this case including how the victims were killed and what happened prior to
the killings. (Evid.Code, § 210.)

19

Nor did the trial court abuse its discretion in determining that the
probative value of each photograph was not substantially outweighed by its
prejudicial effect. “‘The admission of photographs of a victim lies within the
broad discretion of the trial court when a claim is made that they are unduly
gruesome or inflammatory. [Citations.] The court’s exercise of that discretion
will not be disturbed on appeal unless the probative value of the photographs
clearly is outweighed by their prejudicial effect. [Citations.]’” (People v.
Ramirez (2006) 39 Cal.4th 398, 453–454, 46 Cal.Rptr.3d 677, 139 P.3d 64,
quoting Crittenden, supra, 9 Cal.4th 83 at pp. 133–134, 36 Cal.Rptr.2d 474,
885 P.2d 887.) We have examined the photographs and conclude they are not
of such a nature as to overcome the jury’s rationality. (People v. Gurule (2002)
28 Cal.4th 557, 625, 123 Cal.Rptr.2d 345, 51 P.3d 224.) The trial court did
not err in admitting the challenged photographs of the victims, nor did their
admission violate defendant’s constitutional rights.

20

Hoyos, 41 Cal. 4th at 908-09 (brackets in original). The state supreme court also rejected

21

Petitioner’s contention that the trial court’s ruling resulted in prejudice with respect to his

22

penalty phase proceedings. See id. at 927 fn. 38 (“Because we discern no error in any area

23

of the guilt phase, we reject defendant’s claims of any prejudicial effect in the penalty phase

24

arising from these or any other guilt phase rulings.”)

11
12
13
14
15
16
17
18

25

Again, a claim of state law error arising from the erroneous admission of evidence

26

may warrant federal habeas relief only if “the admission of the evidence so fatally infected

27

the proceedings as to render them fundamentally unfair.” Jammal, 926 F.2d at 919; see

28

also McGuire, 502 U.S. at 68-73.
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1

In the SAP, Petitioner advanced a general challenge to the admission of crime scene

2

and autopsy photos at trial, which he asserts was prejudicial in conjunction with the

3

testimony of Brian Kennedy. (SAP at 56.) In the merits and evidentiary hearing briefing,

4

Petitioner states specifically that “[t]rial counsel emphasized photographs 8A and 11C as

5

particularly irrelevant, offensive, and inflammatory, but the trial court found that each was

6

necessary to illustrate the testimony of Kennedy, as noted above.” (Pet. Brief at 19.)

7

Petitioner argues that because “most of the inflammatory crime scene photos were admitted

8

in conjunction and as support for Brian Kennedy’s tainted testimony,” the photos

9

themselves “were similarly tainted.” (Id.)

10

Yet, as discussed above, Petitioner fails to demonstrate that the trial court erred in

11

admitting the expert testimony of Detective Kennedy or that the admission of his testimony

12

deprived Petitioner of a fair trial. Accordingly, this claim must be viewed on its own

13

merits, given the lack of demonstrated error in admitting Kennedy’s testimony.

14

Counsel for Petitioner’s co-defendant filed a pre-trial motion to exclude photos of

15

the victims, joined by Petitioner. (CT 516-31, 814-15.) In the motion, the defense argued

16

that “the introduction of any and all such photographs is irrelevant,” and “is more

17

prejudicial than probative,” specifying that the motion was directed at “[p]hotographs of

18

the alleged victims taken while they were alive,” “photographs showing the victims’

19

injuries, which were taken at the scene of the investigation, or during any additional

20

investigation,” and “certain photographs taken at and during the autopsy of the alleged

21

victims, Dan and Mary Magoon.” (CT 517-18, 523-24.)

22

The trial court and counsel engaged in extended discussions on the admissibility of

23

a number of photos, with the trial court excluding or redacting portions of several photos.

24

For instance, the trial court redacted a portion of one photo that displayed a family photo

25

in the living room and excluded several photos as cumulative to those already admitted

26

into evidence. (RT 1117-19, 1143, 1148-49, 1163.) With respect to the specific photos

27

mentioned by Petitioner, the defense objected to photo 8A which depicted the “victim’s

28

wallet, which has been opened up and contents removed” but also showed a large pool of
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blood. (RT 1120-21.) In response, the prosecutor cited to Kennedy’s expected testimony

2

about “the relevance of the pool of blood” as well as “the way the blood dried and the

3

smear pattern” which showed how long the victim was laying on his side prior to being

4

rolled, which allowed the perpetrators access to the entryway to the garage containing the

5

marijuana taken from the premises. (RT 1121-22.) With respect to photo 11C, the defense

6

contended the photo was “so graphic that it is going to be inherently offensive and

7

overwhelming to jurors” while the prosecutor countered that in that photo “you can see

8

how the blood dried and how there was various swipe marks caused by the opening of the

9

door and the rolling back of the body.” (RT 1122-23.) The prosecutor indicated that “Brian

10

Kennedy, this is one of the photos he needs to accurately show that to the jury.” (RT 1123.)

11

The trial court admitted the photos, reasoning that: “It seems to me that these two

12

photographs taken together with the offer of proof of the prosecution are highly probative,

13

and the probative value of these photographs would far outweigh any undo [sic] prejudice

14

as that term is defined in law. The photographs seem to me to be part and parcel and

15

essential to the testimony of the witness Kennedy, and for those reasons, the prosecution

16

will be permitted to show these to the jury.” (RT 1124.) Kennedy referred to the photos

17

in his testimony about the blood pooling and transfer patterns. (RT 3558-59.) Medical

18

examiner Dr. Mark Super, who viewed the victims at the scene and conducted the autopsies

19

of both victims, also relied on several photos, including 11C, in his testimony. (RT 3573-

20

74.) The record reflects that the photos in question, which depicted not only blood pooling

21

and spatter but also a victim’s wallet and indicated that one of the victims was moved after

22

death, arguably in order to gain access to the garage and the marijuana kept there, were

23

relevant to not only the murders, robbery, burglary, drug charges and other charged crimes,

24

but were also relevant to the jury’s consideration of the special circumstances of multiple

25

murder and murder in the course of a robbery and burglary. See Jammal, 926 F.2d at 920

26

(“Only if there are no permissible inferences the jury may draw from the evidence can its

27

admission violate due process.”)

28

///
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1

Ultimately, Petitioner fails to show that the admission of the crime scene photos,

2

whether considered independently or in conjunction with the admission of Kennedy’s

3

testimony, “so fatally infected the proceedings as to render them fundamentally unfair.”

4

Jammal, 926 F.2d at 919; Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005) (“A habeas

5

petitioner bears a heavy burden in showing a due process violation based on an evidentiary

6

decision.”) The trial court reasonably determined that the photos were probative and that

7

their value was not outweighed by any potential prejudicial impact and this decision did

8

not violate Petitioner’s constitutional right to due process. See Gerlaugh v. Stewart, 129

9

F.3d 1027, 1032 (9th Cir. 1997) (admission of “admittedly gruesome photos of the

10

decedent” was not cognizable on federal habeas review and did not “raise[] the spectre of

11

fundamental fairness such as to violate federal due process of law.”), citing McGuire, 502

12

U.S. at 67-68; see also Villafuerte, 111 F.3d at 627 (photos depicting the victim’s body

13

and blood at the crime scene were relevant and their admission did not violate due process).

14

The California Supreme Court’s rejection of this claim was not contrary to, or an

15

unreasonable application of, clearly established federal law, nor was it based on an

16

unreasonable determination of the facts. Habeas relief is unavailable on Claim 11.

17

8.

18

Petitioner contends that he was never informed of his right to consular assistance

19

under the Vienna Convention, alleging that “[t]he prejudice is readily apparent in this case

20

because he would have immediately contacted the Mexican Consulate if apprised of his

21

right to do so, and with their assistance would have been much more proactive with respect

22

to developing guilt phase defense and penalty phase mitigation with the Mexican Consulate

23

acting in their salutary role as a cultural bridge between Mexican defendants and the United

24

States criminal justice system.” (SAP at 57-58.) He maintains that while law enforcement

25

knew at the time of his May 27, 1992 arrest that he was a Mexican national, he was not

26

informed of, or provided, the right to consular assistance, and his first contact with the

27

Mexican Consulate was in September 1993 and was self-initiated. (Id. at 56-57.)

28

///

Claim 12

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1

Petitioner presented this claim to the California Supreme Court as Claim X of his

2

first state habeas petition, where it was denied on the merits without a statement of

3

reasoning. (Lodgment Nos. 106, 118.)

4

As discussed in the Teague section above (see section III.B.2, supra), the Supreme

5

Court has never held that the provisions of the Vienna Convention created individually

6

enforceable rights, much less that such rights could provide a basis for relief on federal

7

habeas review. See e.g., Breard, 523 U.S. at 378 (suggesting generally that “[a]ny rights

8

that the Consul General might have by virtue of the Vienna Convention exist for the benefit

9

of [the foreign country], not for him as an individual.”); Medellin, 544 U.S. at 664 (“[E]ven

10

accepting, arguendo, the ICJ’s construction of the Vienna Convention’s consular access

11

provisions [determining, among other issues, that it guaranteed individually enforceable

12

rights], a violation of those provisions may not be cognizable in a federal habeas

13

proceeding.”)

14

As also discussed above, both parties acknowledge the Supreme Court’s decision in

15

Garcia, in which the Court reasserted Medellin’s holding that “[n]either the Avena decision

16

nor the President’s Memorandum purporting to implement that decision constituted

17

directly enforceable federal law.” Garcia, 564 U.S. at 941 (See Pet. Brief at 20; Resp. Opp.

18

at 33.) While Petitioner explicitly acknowledges the absence of any enabling legislation

19

allowing for the enforcement of the provisions contained in the Vienna Convention, he

20

nonetheless argues that “given the continuing political activity in this area, counsel for

21

petitioner maintains his right to relief under this claim in the event that Congress does pass

22

[sic] implementing such legislation,” asserting “the very real possibility that

23

implementation may occur during the course of this litigation.” (Pet. Brief at 20.)

24

Regardless of this possibility, the fact remains that this provision is not individually

25

enforceable at the present time, nor is it even clear that such a claim is cognizable on federal

26

habeas review. See Breard, 523 U.S. at 378; Medellin, 544 U.S. at 664. Given the lack of

27

any compelling authority supporting Petitioner’s claim of error, the Court cannot conclude

28

that the state supreme court’s rejection of this claim was either contrary to, or an
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1

unreasonable application of, clearly established federal law or that it was based on an

2

unreasonable determination of the facts. Petitioner is not entitled to habeas relief on Claim

3

12.

4

C.

Claims of Due Process/Brady Violations, IAC Claims, and Related Claims

5

1.

6

In this claim, Petitioner argues that he was deprived of due process, his right to

7

testify, and his right to the effective assistance of counsel as a result of the prosecution’s

8

failure to disclose the recantation of jailhouse informant George Jimenez in a timely

9

manner. (SAP at 58.) Petitioner requests an evidentiary hearing on this claim. (Id. at 55.)

10

On direct appeal, the state supreme court discussed this claim at length and rejected

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Claim 13

it, as discussed below:
The jury returned its verdicts in the guilt phase on March 7, 1994. The
next day, the prosecutor sent defense counsel a copy of a one-page report
dated March 7, 1994 prepared by the prosecutor’s investigator, David Weil,
which described statements Jimenez had made to Weil on September 22,
1993, when Weil served a subpoena on Jimenez. Weil’s report appeared to
undermine the credibility of Jimenez as a potential witness because it noted
that Jimenez said his statements to the police about Alvarado’s admissions in
jail could have been untrue because of drugs Jimenez was taking at the
time.FN25 As discussed above in part II.C., the trial court had excluded
Jimenez’s statements from the prosecution’s case-in-chief on Aranda and
Bruton grounds, but Jimenez’s statements were held admissible for
impeachment if Alvarado testified. Neither Alvarado nor Jimenez testified at
trial.
FN25. Weil’s report stated in relevant part: “Jimenez said
that he did not want to testify in this matter because he was afraid.
He went on to say that he does not remember most of what he
told the officers and that he (Jimenez) was taking strong
medication at the time he talked to the authorities. Jimenez made
it known to me that his statement that was recorded earlier could
be misleading or contain falsehoods because of the drugs he was
taking at the time.” Jimenez also said “he was concerned for his
safety and the safety of his family if he was compelled to testify.”
Both defendant and Alvarado filed written motions seeking a new trial
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2
3
4
5
6
7
8
9
10

and other relief. They complained that the prosecutor’s failure to disclose
information affecting Jimenez’s credibility violated Brady v. Maryland,
supra, 373 U.S. at page 87, 83 S.Ct. 1194. Defendant’s motion included the
declaration of his cocounsel, Arturo Herrera, stating that defendant had
consistently expressed a desire to testify in his own defense, and that Attorney
Herrera had advised defendant against testifying because Alvarado was not
going to testify.
The trial court granted Alvarado’s motion for a new trial, reasoning that
Jimenez’s statements to Weil constituted Brady material that the prosecution
was obligated to disclose to Alvarado, and that the prosecutor’s failure to
provide this information at a critical stage in the proceedings prevented
Alvarado’s counsel from providing effective representation on the question of
whether to testify.FN26 (Brady, supra, 373 U.S. at p. 87, 83 S.Ct. 1194.) The
trial court denied defendant’s motion in all respects.

11
12
13
14

FN26. In granting Alvarado’s motion, the trial judge also
mentioned that Alvarado’s counsel had subpoenaed the sheriff’s
office for Jimenez’s psychiatric and medical record, but had not
received them even though Alvarado’s counsel had a right to
receive that information.

15
16
17
18
19
20

Defendant contends the trial court erred in denying his motion for a new
trial because the late disclosure of the Weil report violated his right to due
process under Brady and his right to the effective assistance of counsel.
Defendant claims these constitutional violations rendered his trial
fundamentally unfair and require the court to set aside his verdicts. For the
reasons discussed below, we conclude defendant’s constitutional rights were
not violated, and the trial court did not err in denying defendant’s motion for
a new trial.FN27

21
22
23
24
25
26
27
28

FN27. Defendant’s motion for a new trial was based on
the constitutional grounds of an asserted Brady violation or
violation of the right to the effective assistance of counsel. On
appeal, a trial court’s ruling on a motion for new trial is reviewed
under a deferential abuse of discretion standard. (People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 127, 17 Cal.Rptr.3d
710, 96 P.3d 30.) Its ruling will not be disturbed unless defendant
establishes “‘a manifest and unmistakable abuse of discretion.’”
(Ibid., quoting People v. Delgado (1993) 5 Cal.4th 312, 328, 19
Cal.Rptr.2d 529, 851 P.2d 811.) Here, the asserted abuse of
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1
2
3
4

discretion is the asserted failure of the trial court to recognize
violations of defendant’s constitutional rights. Our constitutional
analysis below therefore also addresses the abuse of discretion
issue.
(1) Brady v. Maryland

5
6

a. The Brady Standard

7

In Brady, the United States Supreme Court held “that the suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” (Brady, supra,
373 U.S. at p. 87, 83 S.Ct. 1194.) The high court has extended the prosecutor’s
duty to encompass the disclosure of material evidence, even if the defense
made no request concerning the evidence. (United States v. Agurs (1976) 427
U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342.) The duty encompasses
impeachment evidence as well as exculpatory evidence. (United States v.
Bagley (1985) 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481.) Such
evidence is material “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different.” “A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” (Id. at p. 682, 105 S.Ct. 3375.) “‘[T]he
reviewing court may consider directly any adverse effect that the prosecutor’s
failure to respond may have had on the preparation or presentation of the
defendant’s case.’” (In re Brown (1998) 17 Cal.4th 873, 887, 72 Cal.Rptr.2d
698, 952 P.2d 715, quoting Bagley, supra, 473 U.S. at 683, 105 S.Ct. 3375.)
Defendant has the burden of showing materiality. (In re Sassounian (1995) 9
Cal.4th 535, 545, 37 Cal.Rptr.2d 446, 887 P.2d 527.)

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

b. Defendant’s Brady Claim
Defendant essentially asserts the Brady violation that led the court to
grant Alvarado’s new trial motion had a spillover effect as to him because he
and Alvarado had a strategic understanding that if one defendant testified, the
other defendant would also have to testify. Defendant contends the timely
disclosure of the Weil report would have led him to testify due to a change in
this joint defense strategy.
As the trial court acknowledged during the hearing on the new trial motions,
Brady claims typically require showing the different result of the proceeding
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1
2
3
4
5
6

in terms of the verdict, rather than in terms of an intermediate event such as a
defendant’s testifying. Defendant essentially ignores the issue of how his
testimony would have changed the verdict. If, however, defendant cannot
establish the materiality of the Weil report even as to the intermediate event
of his decision whether to testify, then he has failed to establish the verdict
would have been different. As discussed below, we conclude defendant has
failed to establish materiality even as to his decision whether to testify.
c. Inadmissibility of the Jimenez Statements

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Assuming defendant’s claim is cognizable under Brady, the People
pose a further threshold issue in observing that evidence inadmissible at trial
is immaterial under Brady and, therefore, the failure to disclose such
inadmissible evidence is not a Brady violation. Defendant concedes that, at
the joint trial, Alvarado’s purported admissions would have been admissible
against Alvarado but inadmissible as hearsay against defendant, and that if
defendant’s motion for severance had been granted, the Jimenez testimony
could not have been admitted at his single trial for any purpose. Defendant
claims, however, that even though the Jimenez testimony was not admissible
against defendant individually, his due process claim must survive.
The United States Supreme Court has never announced a bright line
rule that only admissible evidence is “material” for purposes of a Brady
violation.FN28 Some federal and state courts, however, have held that unless
the undisclosed evidence would have been admissible at trial, it need not have
been disclosed under Brady.FN29 Other courts have rejected admissibility as a
prerequisite for determining Brady’s applicability, as long as the information
would have led to admissible evidence or been useful to the defense in
structuring its case.FN30 This court has not directly addressed the issue,
although we have implied in dicta that admissibility might be a prerequisite to
materiality.FN31 In addition, this case presents the additional question of what
aspect of admissibility is a prerequisite to Brady materiality in a joint trial:
admissibility at trial generally, or admissibility as to the individual defendant
making the Brady claim?
FN28. In Wood v. Bartholomew (1995) 516 U.S. 1, 6–7,
116 S.Ct. 7, 133 L.Ed.2d 1, the United State[s] Supreme Court
ultimately found inadmissible polygraph evidence not material
under Brady. However, Wood was not based on a per se rejection
of inadmissible evidence as a basis for a Brady claim. Wood
found the evidence not material because, even based on the
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2
3
4
5
6

assumption that this inadmissible evidence might have led
respondent’s counsel to conduct additional discovery leading to
admissible evidence, the evidence’s influence on the outcome of
the case was speculative. (Wood v. Bartholomew, supra, 516
U.S. at p. 6, 116 S.Ct. 7.); see also Paradis v. Arave (9th
Cir.2001) 240 F.3d 1169, 1178 ([“In Bartholomew, the Court did
not categorically reject the suggestion that inadmissible evidence
can be material under Brady, if it could have led to the discovery
of admissible evidence.”] )

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FN29. See, e.g., Madsen v. Dormire (8th Cir.1998) 137
F.3d 602, 604 ([inadmissible evidence of forensic chemist’s
incompetence not material under Brady]); see also Gershman,
Prosecutorial Misconduct (2d ed.2005) § 5:8, and cases collected
therein.

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FN30. See, e.g., Paradis v. Arave, supra, 240 F.3d at page
1179 ([prosecutor’s notes, although not admissible, could have
been used to contradict a key medical witness and nondisclosure
was Brady violation]); see also Gershman, Prosecutorial
Misconduct, supra, § 5:8, and cases collected therein.

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FN31. “Materiality, in turn, requires more than a showing
that the suppressed evidence would have been admissible.”
(People v. Salazar (2005) 35 Cal.4th 1031, 1043, 29 Cal.Rptr.3d
16, 112 P.3d 14, cf. Wood v. Bartholomew, supra, 516 U.S. at p.
2, 116 S.Ct. 7.)

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Because the evidence on which defendant bases his Brady claim was
admissible at the joint trial, for the reasons that follow, we conclude defendant
may assert a Brady claim, even though the evidence was not admissible
against him.FN32 The Brady standard for materiality states the undisclosed
evidence is to be evaluated in terms of how “the result of the proceeding would
have been different.” (United States v. Bagley, supra, 473 U.S. at p. 682, 105
S.Ct. 3375.) In addition, the evidence’s materiality “‘must be evaluated in the
context of the entire record.’” (In re Brown, supra, 17 Cal.4th at p. 887, 72
Cal.Rptr.2d 698, 952 P.2d 715, quoting United States v. Agurs, supra, 427
U.S. at p. 112, 96 S.Ct. 2392.) In deciding whether asserted Brady evidence
is material to defendant’s case, it is therefore appropriate to examine the effect
of the evidence on the actual joint proceeding in which defendant was tried.

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FN32. Thus, we need not and do not reach the issue of
whether a Brady claim is precluded when the basis of the Brady
claim is evidence not admissible at trial.

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d. The Joint Defense Strategy

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Even though defendant’s Brady claim is not per se precluded because
the undisclosed evidence was inadmissible against him individually, its
inadmissibility highlights the weaknesses in his Brady contention. As
defendant concedes, Jimenez’s statements were admissible only as
impeachment evidence against Alvarado, if Alvarado testified. For defendant,
unlike Alvarado, there was no direct causal connection between Jimenez’s
statements and the decision whether or not to testify. If Alvarado testified,
Jimenez’s statements could have impeached him. But the prosecution could
not have impeached defendant with Jimenez’s statements, even if Jimenez
testified.

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Defendant contends Jimenez’s statements did affect his decision
whether to testify because the potential prejudicial impact of the statements
on the jury caused him to adopt a joint defense strategy with Alvarado, to the
effect that either both or neither of them would testify. During the hearings on
the motions for a new trial, defense counsel extensively discussed the
reasoning behind this joint defense strategy, which defendant summarizes and
adopts on appeal. If the jury heard Jimenez’s statements, their impact would
be prejudicial not merely on Alvarado but on defendant as well. Defendant
was free to testify without causing Jimenez’s statements to be admitted, but if
he testified, he presumably would say something exculpatory about his
participation in the crime. Then more blame might be placed on Alvarado, so
Alvarado would feel compelled to testify. Defendant’s and Alvarado’s
defense counsel believed there was no fair way to have only one story
presented. Thus, the codefendants had agreed on a both-or-neither approach
to testifying.
e. Impact of the Joint Defense Strategy
Defendant alternatively refers to his understanding with Alvarado on
testifying at trial as an agreement and as a trial strategy. To the extent that the
defendant implies the existence of a binding agreement, the argument fails.
He fails to establish that he formed a binding agreement with Alvarado either
by contract or detrimental reliance.FN33 The trial court made no findings
establishing the existence of a joint defense agreement. To the extent
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defendant’s argument for materiality depends on the existence of a binding
agreement, defendant has therefore failed to establish one.
FN33. The only factual evidence presented during the new
trial motions was the declaration of defendant’s trial attorney,
Arturo Herrera. His declaration describes defendant’s desire to
testify and counsel’s advice to defendant that, because Alvarado
was not going to testify, then neither should he. But this
declaration does not assert (let alone establish) the existence of a
binding agreement.
In the alternative, defendant describes his agreement with Alvarado as
a trial strategy that each codefendant adopted, based on their shared interest
in keeping Jimenez’s statements away from the jury.FN34 Defendant claims
that if the prosecution had timely disclosed the Weil report, it would have
changed the joint defense strategy because the information revealed in the
report would have undercut Jimenez’s credibility. He reasons, therefore, that
neither he nor Alvarado would have been deterred from testifying because
they feared the effect of Jimenez’s statements on the jury.
FN34. Defendant also briefly mentions his trial counsel’s
argument that because defendant and Alvarado are brothers-inlaw, the codefendants adopted the “both or neither” testifying
strategy, at least in part, out of their sense of familial loyalty.
Assuming defendant also raises this argument on appeal, he
presents no authority that familial loyalty can establish
materiality under Brady.

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Defendant implies the above trial considerations necessitated his
adoption of the agreement with Alvarado and corresponding trial strategy. But
this strategy was not compelled by necessity, legal or otherwise. Even
assuming both codefendants wished to keep Jimenez’s statements from the
jury, defendant’s testifying would not necessarily have caused Alvarado to
testify. Alvarado’s testifying in response to Jimenez’s statements would have
been contingent on the nature of defendant’s testimony. If defendant’s
testimony painted Alvarado in a particularly bad light, Alvarado might have
testified, in order to shift the blame to defendant.
It was also possible, however, that Alvarado would not have testified.
Before testifying, Alvarado would have considered the consequences of his
testimony: leaving defendant’s testimony unrebutted, or taking the stand and
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risk having the jury hear Jimenez’s statements. Alvarado could not make that
calculation prior to hearing defendant’s actual testimony. Neither could
defendant know with any certainty in advance what Alvarado would do. There
was no necessary connection between defendant’s testifying and Alvarado’s
testifying.
In observing that defendant has not shown the legal necessity of the
purported joint defense strategy, we do not hold defendant is required to show
legal necessity in order to establish his Brady claim.FN35 Nor do we deny
defendant presents reasonable strategic considerations that may possibly have
been factors in his decision whether or not to testify. But codefendants in
many joint trials face difficult tactical choices in deciding how to proceed
where multiple considerations are involved. Defendant has shown only the
possibility that his decision not to testify was a result of strategic
considerations made in connection with Jimenez’s statements. In other words,
defendant has shown only the possibility that he would have testified had the
Weil report been timely produced. To establish materiality under Brady,
defendant must do more than establish a possible relationship between the
Weil report and a different result; he must establish a reasonable probability
of a different result. “The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the
outcome of the trial, does not establish ‘materiality’ in the constitutional
sense.” (United States v. Agurs, supra, 427 U.S. at pp. 109–110, 96 S.Ct.
2392.) Ultimately, defendant’s contention that the timely disclosure of the
Weil report would have resulted in his testifying is based on speculation and
fails to establish materiality under Brady. (Brady, supra, 373 U.S. at p. 87, 83
S.Ct. 1194; Wood v. Bartholomew, supra, 516 U.S. at p. 6, 116 S.Ct. 7.)

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FN35. Alternatively, we need not and do not reach the
issue of whether a showing of legal necessity would be sufficient
to establish a Brady claim under these circumstances.
The People raise the related point that considerations entirely
independent of Jimenez’s statements caused defendant not to testify,
regardless of whether the prosecution had disclosed the Weil report. The
People point out that if defendant testified, he could have been subject to
impeachment by his own prior statements to the police, and his admissions to
jailhouse informant Jorge Flores.
In response, defendant attempts to discredit the possible influence of
these other impeachment sources. Defendant claims his statements to the
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police were not preceded by any Miranda warning, were far from a
confession, and might have been excluded in any case as being involuntary. It
is true that the People have not shown conclusively that these other
impeachment factors independently determined defendant’s decision not to
testify. But neither has defendant conclusively shown these factors could not
have done so. The highly speculative nature of any analysis here further
supports our conclusion that defendant has failed to establish materiality
under Brady.
2. Asserted Violation of Right to Effective Assistance of Counsel
In the alternative, defendant asserts that regardless of whether the
timely disclosure of the Weil report would have caused him to testify, its late
disclosure was prejudicial because it violated his right to receive meaningful
guidance from his counsel on whether or not to testify on his own behalf.
Defendant relies on cases based on the deficient performance of counsel, such
as Wiggins v. Smith (2003) 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471,
which appear inapplicable to the facts of this case. Wiggins addressed whether
counsel fulfilled his duty to “‘make reasonable investigations’” into
defendant’s background so that counsel could make a reasonable decision as
to what to offer in mitigation at the penalty phase. (Id. at p. 522, 123 S.Ct.
2527.) Defendant does not argue that his trial counsel was deficient because
he failed to uncover the Jimenez impeachment evidence. Thus, in contrast to
Wiggins, there is no issue of trial counsel’s not becoming aware of relevant
evidence through counsel’s failure to conduct a reasonable investigation.
Defendant also contends he was in the same situation as Alvarado in
regard to the untimely disclosure of the Weil report and consequently he
suffered the same interference with his right to receive meaningful guidance
from counsel on the issue of whether to testify. But defendant was not in the
same situation as Alvarado in relation to the Weil report. As discussed above,
Alvarado and defendant stood in different relationships to the Jimenez
statements. If Alvarado testified, he faced impeachment with Jimenez’s
statements. Defendant, in contrast, could testify without being subject to
impeachment. Defendant attempts to negate this fundamental difference by
claiming that a joint defense strategy committed both codefendants to the
same course of action in testifying—that is, either both would testify, or
neither would. But, as discussed above, defendant has failed to establish a
material connection between Jimenez’s statements and defendant’s decision
to testify. Because there was no material connection, we find no interference
with defendant’s right to counsel based on the late disclosure of the Weil
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report.
3. Alleged Prosecutorial Misconduct

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Defendant contends his convictions and sentence should be set aside
because the prosecutor engaged in misconduct when he deliberately withheld
Weil’s report, which rendered the trial fundamentally unfair under the
Fourteenth Amendment to the United States Constitution. In addition,
defendant contends the trial court erred in finding the prosecutor did not
intentionally keep the Weil report secret until after the jury returned the guilty
verdict.
“A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make
the conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible methods to
attempt to persuade either the trial court or the jury.” (People v. Morales
(2001) 25 Cal.4th 34, 44, 104 Cal.Rptr.2d 582, 18 P.3d 11.) As discussed
above, because there was no material connection between the Weil report and
defendant’s decision whether or not to testify, we rejected his claims that the
late disclosure of the Weil report violated his constitutional right to due
process under Brady or his right to the effective assistance of counsel. This
same lack of material connection likewise causes us to reject his claim that
the late disclosure of the Weil report made his trial fundamentally unfair. As
to whether the prosecutor violated state law by using deceptive or
reprehensible methods, we reject that claim based on the trial court’s finding,
not contradicted in the record, that the prosecutor’s failure to disclose was
unintentional.FN36
FN36. Prosecutorial misconduct does not require a
showing of bad faith. (People v. Hill (1998) 17 Cal.4th 800, 822,
829, 72 Cal.Rptr.2d 656, 952 P.2d 673.) Thus, in a typical claim
of prosecutorial misconduct involving a prosecutor’s
presentation to the court or jury, there is no need to address the
prosecutor’s intent. But in the context of the prosecutorial
misconduct claimed here, the only way the actions of the
prosecutor can be shown to be deceptive or reprehensible is if the
prosecutor had intentionally withheld the Weil report for
strategic advantage. In the absence of claims for intentional
misconduct, defendant would merely be repeating his Brady
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claim, since nondisclosure under Brady does not require a
showing of the moral culpability or the willfulness of the
prosecutor. (United States v. Agurs, supra, 427 U.S. at p. 110, 96
S.Ct. 2392.)
In describing the circumstances surrounding the late disclosed Weil
report, the prosecutor stated that, in September of 1993, after serving the
subpoena on Jimenez, Weil told him the following: Jimenez did not want to
be a witness; he was scared of what might happen to him or his family; and
he might forget what he said or didn’t really remember what was said. The
prosecutor could not recall if he directed Weil to prepare a report in September
of 1993, but he believed a report would be prepared. When the prosecutor was
reviewing documents in preparation for the penalty phase, he became aware
that no such report had been prepared. The prosecutor then directed Weil to
prepare a report and had it delivered to defense counsel. The court made
findings in connection with the codefendants’ motions for a new trial. It
concluded the prosecutor clearly had been negligent in failing to produce the
information in the Weil report in a timely manner, but also found the
prosecutor had not intentionally kept the Weil report secret until after the jury
returned the verdicts.
Defendant contends the court was unreasonable in concluding that the
untimely disclosure was not intentional because there were several motions
filed and hearings held regarding Jimenez’s statements after the time in which
the prosecutor became aware of the statements. Defendant claims the
prosecutor could not have believed defense counsel was already aware of
Jimenez’s statements to Weil. Defendant contends it was inconceivable that
defense counsel would not have mentioned a “recantation” by Jimenez
because such a recantation would have rendered the Aranda/Bruton hearings
on Jimenez’s testimony unnecessary.FN37

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FN37. Defendant also claims that the prosecutor must
surely have also been aware of the Los Angeles Grand Jury
investigation concerning jail house informants, which had
surfaced with much publicity not long before this trial, and that,
consequently, the prosecutor should have been on notice that the
testimony of a jailhouse informant like Jimenez was likely false.
This argument is based on facts not contained in the record. But
even assuming the prosecutor was aware of the grand jury
investigation, this would add little to defendant’s main argument,
which is that the prosecutor had actual knowledge of the
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unreliability of Jimenez because the prosecutor knew that
Jimenez had admitted it to Weil in September of 1993.
The record does not support defendant’s claim. It appears the trial
court’s conclusion was consistent with the prosecutor’s statement that when
the prosecutor heard Weil’s account of Weil’s conversation with Jimenez in
September of 1993, he understood Jimenez’s comments to Weil to be an
attempt to get out of testifying because he was unwilling or scared to testify.
The prosecutor stated that it was not until after he read the version of the
conversation in Weil’s March 1994 report, that he was aware of Jimenez’s
comments that his prior statement to police might be misleading or contain
falsehoods due to the drugs he was taking at that time. The prosecutor’s
understanding of Jimenez’s comments to Weil as an attempt to get out of
testifying, rather than as a “recantation,” is consistent with the prosecutor’s
apparent lack of surprise that Jimenez’s comments to Weil were not
mentioned during the Aranda/Bruton hearings addressing Jimenez’s
statements.
Hoyos, 41 Cal. 4th at 916-25 (brackets in original).
A.

Brady contention

15

“[S]uppression by the prosecution of evidence favorable to an accused upon request

16

violates due process where the evidence is material either to guilt or to punishment,

17

irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S.

18

83, 87 (1963). “[E]vidence is material only if there is a reasonable probability that, had

19

the evidence been disclosed to the defense, the result of the proceeding would have been

20

different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in

21

the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).

22

Petitioner asserts that the California Supreme Court’s decision to reject this claim

23

was based on an unreasonable determination of the facts under section 2254(d)(2), arguing

24

that “[w]hile the Supreme Court contends that petitioner established only a ‘possible’

25

relationship between the Weil report and his decision not to testify, the record demonstrates

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that both defense counsel were unequivocal that they had decided at the time of the trial

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that neither defendant would testify at trial, because of Alvarado’s direct vulnerability to

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impeachment by the Jimenez statements; and were equally unequivocal that both
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defendants would have testified at the trial if the Weil report had been timely disclosed,

2

because the fear of impeachment would have been neutralized. The record could not be

3

clearer, and the Supreme Court was unreasonable in not recognizing that.” (SAP at 68)

4

(emphasis in original.)

5

First, it is evident that the California Supreme Court was careful to clarify that any

6

conclusions about the impact of the joint defense agreement did not compel its rejection of

7

his Brady claim, noting that: “In observing that defendant has not shown the legal necessity

8

of the purported joint defense strategy, we do not hold defendant is required to show legal

9

necessity in order to establish his Brady claim.” Hoyos, 41 Cal. 4th at 921. Instead, it is

10

clear from the California Supreme Court’s own words that the state court decision was

11

based on Petitioner’s failure to demonstrate materiality. At the outset of the discussion,

12

the California Supreme Court remarked that Petitioner failed to even allege or argue

13

materiality with respect to the outcome of the proceedings, as Brady requires, and noted

14

that Petitioner in fact “essentially ignores the issue of how his testimony would have

15

changed the verdict.” Hoyos, 41 Cal. 4th at 918. The state supreme court concluded that

16

Petitioner failed to even show the statement was material to his decision to testify, much

17

less demonstrate a connection between the statement and the outcome of the trial

18

proceedings,14 as required to sustain a Brady claim:

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While Petitioner submitted two declarations to the state supreme court in support
of his first state habeas petition (see Lodgment No. 115, Ex. 84A; Lodgment No. 117, Ex.
115), in neither does he address his desire to testify at trial or the substance of his
prospective testimony. During the sentencing proceedings, Petitioner stated that he wanted
to testify but that his attorney convinced him not to, and that “[m]y attorney argued
something different than what I had told him,” but again, did not address the substance of
his prospective testimony. (RT 4953, 4954-58.) In the Reply brief, with respect to Claim
22, Petitioner now specifies that at the outset of the case, he told trial counsel that “he and
Alvarado arrived at the Magoon residence to find the bloody scene and the victims, after
which they left with marijuana from the garage.” (Reply at 97.) However, there is an
absence of record or other documentary support for this contention.
14

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Defendant has shown only the possibility that his decision not to testify was a
result of strategic considerations made in connection with Jimenez’s
statements. In other words, defendant has shown only the possibility that he
would have testified had the Weil report been timely produced. To establish
materiality under Brady, defendant must do more than establish a possible
relationship between the Weil report and a different result; he must establish
a reasonable probability of a different result. “The mere possibility that an
item of undisclosed information might have helped the defense, or might have
affected the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.” (United States v. Agurs, supra, 427 U.S. at pp. 109–110,
96 S.Ct. 2392.) Ultimately, defendant’s contention that the timely disclosure
of the Weil report would have resulted in his testifying is based on speculation
and fails to establish materiality under Brady. (Brady, supra, 373 U.S. at p.
87, 83 S.Ct. 1194; Wood v. Bartholomew, supra, 516 U.S. at p. 6, 116 S.Ct.
7.)

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In response to the Court’s post-oral argument request for any citations to the record
concerning Petitioner’s prospective trial testimony (see ECF No. 120), Petitioner filed a
response stating that “[t]he state habeas investigation and interviews with Petitioner Hoyos
revealed that Petitioner had no involvement in the killings of Mary and Daniel Magoon.
Counsel, while aware of Petitioner’s statement that when he arrived at the Magoon
residence, Mary and Daniel Magoon were dead, did not file an offer of proof as to
petitioner’s anticipated testimony in the course of the state habeas proceedings in the
California Supreme Court. Petitioner consistently maintained that he did not kill the
Magoons and that he wanted to testify at trial.” (ECF No. 135.) Petitioner also attached
the declaration of state habeas counsel, dated April 21, 2017. (ECF No. 135-1.)
Respondent asserts that this submission “is non-responsive to the request for citations to
the record” and the Court cannot consider declaration of state habeas counsel in reviewing
this claim, noting that “[t]he United States Supreme Court has clarified ‘that review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.’” (ECF No. 141 at 5, quoting Pinholster, 563 U.S. at 181.)
Given the dictates of Pinholster, as well as the fact that this declaration was executed
in 2017 and this claim was raised on direct appeal rather than state habeas and denied in a
reasoned decision in 2007, the Court agrees that it cannot consider the declaration of state
habeas counsel in reviewing this claim under section 2254(d)(1). See Pinholster, 563 U.S.
at 185 (“If a claim has been adjudicated on the merits by a state court, a federal habeas
petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that
state court.”)
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Hoyos, 41 Cal. 4th at 922.

2

A review of the record does not compel a conclusion that the state supreme court’s

3

decision was based on an unreasonable determination of the facts. At a post-trial hearing

4

concerning the late disclosure of the Weil report, defense counsel stated that Petitioner had

5

been “adamant about testifying in court,” that at the last minute, counsel “talked him out

6

of it,” and that Petitioner “made up his mind in court here that morning of the defense case,

7

changed his mind and said he wouldn’t testify.” (RT 4544.) At the same time, trial counsel

8

acknowledged that the prospect of Jimenez impeaching Alvarado was not the sole

9

consideration given that there were multiple informants, stating that: “The reason why I’m

10

bringing this up is because the reasons that I was talking him out of testifying was because

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obviously the impeachment of, of him through statements by the jail house informants.”

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(RT 4544-45.) Counsel also conceded that the Weil report only “possibly” would have

13

changed the calculus, and stated that had they known of Jimenez’s recantation, “possibly

14

Mr. Alvarado would have testified, and Mr. Hoyos would have testified.” (RT 4545.)

15

While counsel noted that Flores’ informant statement may not have impacted their strategy

16

“because in a lot of that statement there is a lot of exculpatory stuff,” counsel continued to

17

equivocate on the impact of the Jimenez recantation, again stating that with an earlier

18

disclosure of the Jimenez statement “we would have probably counseled them differently

19

because the worst part of the impeachment comes from Jiminez [sic].” (RT 4546-47)

20

(emphasis added.) Counsel reiterated that Petitioner had been “adamant about testifying”

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and that “[i]t was based on advice of counsel concerning impeachment is the reason why

22

he changed his mind.” (RT 4547.) Counsel acknowledged the difficulty of re-evaluating

23

the strategic decisions they would have made in hindsight, as follows: “It’s by every logical

24

evidentiary perspective reasonable to think that both wouldn’t testify, as in fact has

25

happened, or that both might have testified. Who knows exactly if they would have. It’s

26

hard to go back in time, re-live that, make those retroactive strategic decisions, but they

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very well might have.” (RT 4549.)

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Even as the record reflects that Petitioner himself expressed a strong desire to testify

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and that his ultimate decision not to testify was undoubtedly influenced, at least in part, by

3

the prospect of Jimenez’s testimony, trial counsel acknowledged there were other factors

4

at play, including the prospect of impeachment by Flores. Here, the record supports the

5

reasonableness of the state supreme court’s factual determination, as even trial counsel

6

themselves repeatedly conceded that, given knowledge of the recantation, “possibly” the

7

defendants would have testified and that counsel “probably would have counseled them

8

differently.” Thus, contrary to Petitioner’s assertion, the record reflects that defense

9

counsel was not “unequivocal” that both defendants would have testified had the Weil

10

report been disclosed earlier, and the California Supreme Court was not unreasonable in

11

concluding that Petitioner failed to show more than a “possible” relationship between the

12

Weil report and his decision not to testify. Given the record support for the California

13

Supreme Court’s determination, Petitioner fails to demonstrate that the state court decision

14

involved an unreasonable determination of the facts under section 2254(d)(2).

15

Petitioner similarly fails to satisfy section 2254(d)(1). It is apparent from a review

16

of the record that Petitioner’s argument about materiality is directed to the impact of the

17

Jimenez statement on his decision to testify, rather than on the outcome of the trial. Again,

18

the Supreme Court has held that “evidence is material only if there is a reasonable

19

probability that, had the evidence been disclosed to the defense, the result of the proceeding

20

would have been different.” Bagley, 473 U.S. at 682. In this case, the California Supreme

21

Court correctly and reasonably noted that while Petitioner argued that the Weil report was

22

material to his decision not to testify, Petitioner “essentially ignores the issue of how his

23

testimony would have changed the verdict.” Hoyos, 41 Cal. 4th at 918. Because Petitioner

24

failed to argue, much less demonstrate, that the Weil report was material to the outcome of

25

Petitioner’s trial proceedings, he did not establish that Brady error occurred in his case. As

26

such, the California Supreme Court’s rejection of this contention was neither contrary to,

27

nor an unreasonable application of, clearly established federal law.

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1

B.

Ineffective Assistance of Counsel and Right to Testify

2

Petitioner contends that in addition to the Brady violation, “defense counsel were

3

also deficient in their efforts to affirmatively investigate and impeach informant Jimenez

4

particularly and informant Lopez15 as well.” (SAP at 69.)

5

In the Answer, Respondent contends that this aspect of Claim 13 is not exhausted.

6

(Ans. Mem. at 61.) On direct appeal, the California Supreme Court addressed Petitioner’s

7

claim that the untimely disclosure of the Weil report “violated his right to receive

8

meaningful guidance from his counsel on whether or not to testify on his own behalf.”

9

Hoyos, 41 Cal. 4th at 922. In doing so, the California Supreme Court noted that:

10

“Defendant does not argue that his trial counsel was deficient because he failed to uncover

11

the Jimenez impeachment evidence.” Hoyos, 41 Cal. 4th at 922-23. Petitioner appears to

12

now offer that very argument. Thus, to the extent Petitioner asserts trial counsel was

13

ineffective for failing to investigate possible impeachment evidence concerning Jimenez,

14

the contention appears unexhausted.

15

Petitioner maintains that Respondent waived exhaustion by failing to raise it in an

16

earlier motion to dismiss for failure to exhaust. (Pet. Brief at 24-25.) Pursuant to AEDPA:

17

“A State shall not be deemed to have waived the exhaustion requirement or be estopped

18

from reliance upon the requirement unless the State, through counsel, expressly waives the

19

requirement.” 28 U.S.C. § 2254(b)(3). Moreover, the Ninth Circuit has indicated that

20

21
22
23
24
25
26
27
28

The Court’s review of the record reveals the existence of two informants, Jimenez
and Flores, neither of whom ended up testifying at trial. See e.g. Hoyos, 41 Cal. 4th at 894.
One witness at trial, an acquaintance of Petitioner’s, was named Marbell or Maria Lopez,
while James Johnson testified that he thought Petitioner and Lopez were married and that
Petitioner’s name was Jaime Lopez. See id. at 886-87, 887 fn. 6. The failure to identify
an informant named Lopez does not appear to impact the Court’s consideration of this
claim, as the substance of Petitioner’s argument centers on counsel’s alleged failure to
obtain the same Jimenez impeachment evidence at issue in the Brady claim. Petitioner
offers no details about the identity of an informant named Lopez nor does Petitioner
provide any specific allegations about counsel’s purported deficiencies in investigating
impeachment information concerning any informant named Lopez.
15

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under the Federal Rules of Civil Procedure 7(a), 8(c), and 12(b), a motion or stipulation

2

may not constitute a “responsive pleading” sufficient to waive an affirmative procedural

3

defense such as exhaustion. See Randle v. Crawford, 604 F.3d 1047, 1053 (9th Cir. 2010)

4

(rejecting contention that the State waived a procedural defense by failing to raise it in a

5

prior motion to dismiss, stipulation to stay proceedings, or opposition to motion to reopen

6

federal case.)

7

Ultimately, the Court need not resolve the exhaustion status of this contention

8

because the claim is without merit; the Court may exercise discretion to deny a claim on

9

the merits despite a petitioner’s failure to fully exhaust state judicial remedies. See 28

10

U.S.C. § 2254(b)(2); Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999).

11

In this instance, Petitioner cannot establish that trial counsel’s performance fell

12

below constitutional guarantees. As the trial court and the state supreme court each

13

appropriately recognized, even had Petitioner chosen to testify, the prosecutor could not

14

have called Jimenez to testify against him. (See RT 4729-30) (“There isn’t any Sixth

15

Amendment violation that I see as to Mr. Hoyos in this case. He could have testified in

16

this case without any fear of impeachment by Jiminez [sic]. He chose not to do so. In fact,

17

he chose not to do so in advance for reasons, as it seems, to be more akin to familial

18

considerations. We sink or swim together, this sort of approach. That’s not cognizable as

19

a constitutional violation. He made a decision and the potential impeaching information

20

of the informant as to his co-defendant is not really of constitutional significance as to Mr.

21

Hoyos.”); see also Hoyos, 41 Cal. 4th at 920 (“As defendant concedes, Jimenez’s

22

statements were admissible only as impeachment evidence against Alvarado, if Alvarado

23

testified. For defendant, unlike Alvarado, there was no direct causal connection between

24

Jimenez’s statements and the decision whether or not to testify. If Alvarado testified,

25

Jimenez’s statements could have impeached him. But the prosecution could not have

26

impeached defendant with Jimenez’s statements, even if Jimenez testified.”) Only if

27

Alvarado chose to testify could Jimenez have been called as an impeachment witness. As

28

such, Petitioner fails to persuasively explain why counsel had a duty to independently
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investigate potential impeachment evidence concerning an individual that could not have

2

been called to testify as a witness against him, much less demonstrate that the failure to do

3

so “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88.

4

Even if Petitioner were able to show that trial counsel was somehow deficient for

5

failing to independently investigate and possibly obtain evidence impeaching a potential

6

witness against his co-defendant, his claim of ineffective assistance nonetheless fails

7

because he cannot demonstrate prejudice. Petitioner has not shown how his testimony

8

would have made a difference to the outcome of the trial, much less demonstrate “there is

9

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

10

proceeding would have been different.” Id. at 694. At the time of the defense motion for

11

a new trial, Petitioner told the trial court that he “wanted to take the stand and testify” but

12

that he did not do so because counsel told him not to testify. (RT 4954-55.) Again,

13

Petitioner submitted two separate declarations in support of his state habeas petition, but

14

in neither does Petitioner even state that he wanted to testify at trial, much less provide any

15

indication about what he would have testified to at trial. (See Lodgment No. 115, Ex. 84A;

16

Lodgment No. 117, Ex. 115.) In any event, this claim was raised and adjudicated by the

17

California Supreme Court on direct appeal, and Petitioner fails to point to evidence in the

18

record before the state court at the time of that decision which supports his contention.

19

(See fn. 14, supra; see also Pinholster, 563 U.S. at 181, 185.) In the absence of any attempt

20

to show, much less actual evidence demonstrating, that Petitioner’s testimony would have

21

made a difference in the jury’s verdict, the Court cannot conclude that Petitioner was

22

prejudiced by trial counsel’s alleged deficiencies. See Richter, 562 U.S. at 112 (“The

23

likelihood of a different result must be substantial, not just conceivable.”) Therefore, even

24

were Petitioner able to establish that counsel’s performance was constitutionally

25

inadequate, the claim fails for lack of prejudice. See Strickland, 466 U.S. at 697 (“If it is

26

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

27

which we expect will often be so, that course should be followed.”) The California

28

Supreme Court’s rejection of this contention was neither contrary to, nor an unreasonable
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1

application of, Strickland.

2

C.

Prosecutorial Misconduct and Right to Testify

3

Finally, Petitioner asserts that his “right to testify on his own behalf, which is a

4

personal and fundamental constitutional right, was violated in this case as a result of

5

prosecutorial misconduct on the Brady front and ineffective assistance of counsel regarding

6

both impeachment evidence of prosecution witnesses and the affirmative development of

7

defense evidence.” (SAP at 70.)

8

To sustain a claim of prosecutorial misconduct on federal habeas review, a petitioner

9

must demonstrate that the misconduct at issue “‘so infected the trial with unfairness as to

10

make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S.

11

168, 181 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Alleged

12

instances of misconduct must be reviewed “in the context of the entire trial.” Donnelly,

13

416 U.S. at 639; see also Greer v. Miller, 483 U.S. 756, 765-66 (1987), citing Darden, 477

14

U.S. at 179 and Donnelly, 416 U.S. at 639. This is because “the touchstone of due process

15

analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the

16

culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). Habeas relief

17

is warranted only if the error “had substantial and injurious effect or influence in

18

determining the jury’s verdict.” Brecht, 507 U.S. at 637.

19

On the showing offered by Petitioner, the Court is unable to conclude that the

20

prosecution’s failure to turn over the Jimenez material in a timely manner, even assuming

21

it constituted misconduct, “so infected” his trial as to deprive him of due process. As

22

discussed above, despite Petitioner’s lengthy and detailed arguments to the contrary, he

23

was not directly impacted by the Jimenez impeachment materials, which could not have

24

been used against him had he chosen to testify at trial. Moreover, for the reasons discussed

25

above in the discussion of the Brady and ineffective assistance of counsel contentions, even

26

if Petitioner could establish the existence of constitutional error, he fails to show that the

27

error had any impact on the outcome of his trial proceedings, much less a “substantial and

28

injurious effect or influence” on the verdict. Brecht, 507 U.S. at 637.
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1

Because Petitioner fails to demonstrate that the California Supreme Court’s rejection

2

of Claim 13 was contrary to, or an unreasonable application of, clearly established federal

3

law, or that it was based on an unreasonable determination of the facts, he is not entitled to

4

habeas relief. An evidentiary hearing is not warranted on Claim 13. See Sully, 725 F.3d

5

at 1075 (“[A]n evidentiary hearing is pointless once the district court has determined that

6

§ 2254(d) precludes habeas relief.”)

7

2.

8

Petitioner asserts that: (1) the prosecution’s failure to provide information about a

9

third party that was potentially responsible for the murders violated Brady and Petitioner’s

10

right to due process, (2) defense counsels’ failure to independently investigate and develop

11

a third party culpability defense deprived him of the effective assistance of counsel, and

12

(3) the combination of these violations infringed on his right to testify. (SAP at 70-81.)

13

Petitioner requests an evidentiary hearing on this claim. (Id. at 55.)

Claim 14

14

This claim, aside from the allegations of ineffective assistance of counsel at trial and

15

on appeal, were raised in the first state habeas petition and summarily denied on the merits

16

by the California Supreme Court. (See Lodgment Nos. 106, 118.) The aspect of this claim

17

alleging ineffective assistance of counsel was raised in the second state habeas petition,

18

which the California Supreme Court rejected on the merits in addition to holding it was

19

procedurally barred. (See Lodgment Nos. 120, 124.) For the reasons discussed above in

20

section III.A., the Court will reach the merits of this claim.

21

A.

Brady

22

As stated above in the discussion of Claim 13, in Brady, the Supreme Court held that

23

“suppression by the prosecution of evidence favorable to an accused upon request violates

24

due process where the evidence is material either to guilt or to punishment, irrespective of

25

the good faith or bad faith of the prosecution.” Id., 373 U.S. at 87. “There are three

26

components of a true Brady violation: The evidence at issue must be favorable to the

27

accused, either because it is exculpatory, or because it is impeaching; that evidence must

28

have been suppressed by the State, either willfully or inadvertently; and prejudice must
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1

have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

2

Under Brady, “the individual prosecutor has a duty to learn of any favorable

3

evidence known to the others acting on the government’s behalf in the case, including the

4

police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). Yet, “the prosecutor is not required

5

to deliver his entire file to defense counsel, but only to disclose evidence favorable to the

6

accused that, if suppressed, would deprive the defendant of a fair trial.” Bagley, 473 U.S.

7

at 675 (footnote omitted). “Under Brady’s suppression prong, if ‘the defendant is aware

8

of the essential facts enabling him to take advantage of any exculpatory evidence,’ the

9

government’s failure to bring the evidence to the direct attention of the defense does not

10

constitute ‘suppression.’” Cunningham v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013),

11

quoting Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006).

12

During the investigation of the murders, several reports were turned over to the

13

defense concerning an individual named David Luna. Investigator Oliver’s May 18, 1993,

14

report stated that in a January 25, 1993, conversation, James Johnson told investigators

15

Weil and Oliver that: “David Luna’s brother, Chris, told him the Magoon’s [sic] were killed

16

at the direction of David.” (Lodgment No. 109, Ex. 32.) Oliver’s report also stated that

17

“[a]ttempts to identify David and Chris Luna based on the information provided by Mr.

18

Johnson were subsequently made by Detective Weil and I with negative results.” (Id.)

19

Investigator Weil completed a report of this same interview of James Johnson, dated

20

June 24, 1993, which was also turned over to the defense. In the report, Weil stated that:

21

“During the course of the interview with Mr. Johnson, he related that it came to his attention

22

from an unnamed source that the murders of Daniel and May [sic] Magoon were planned

23

by members of the Luna family. Johnson would not name his source but said that the

24

source identified the brothers David and Chris Luna as being involved in the murders.

25

Johnson went on to say that his source informed him that Chris Luna was currently in the

26

Metropolitan Correction Center in downtown San Diego on some unrelated drug charges.

27

Johnson went on to say that his source stated that during the time that the Magoons were

28

murdered, the Luna brothers were living in the Jamul area of San Diego county. Johnson
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1

said his source did not know any other information other than whet [sic] he had just told

2

us about the Lunas and their possible whereabouts.” (Id., Ex. 33 at 1.) Weil’s report further

3

stated that he and Oliver unsuccessfully attempted to identify David and Chris Luna

4

“through federal, state and local computer inquiries,” similarly failed to locate Chris Luna

5

at the MCC in San Diego, and that “[n]o Christopher or David Luna being brothers could

6

be identified, and no dates of birth were discovered.” (Id.) Both parties agree that these

7

documents were turned over to defense counsel, and that the defense was aware that James

8

Johnson had named David Luna as an individual that may have been involved in the

9

commission of the Magoon murders. (SAP at 70-71, Ans. Mem. at 72.) A discovery

10

receipt reflects that the Weil and Oliver reports were turned over to the defense in July

11

1993. (Lodgment No. 109, Ex. 33 at 2.)

12

However, in February 1993 the prosecution also obtained David Luna’s identifying

13

details, which were not disclosed, including Luna’s fingerprints, date of birth, social

14

security number, and information about prior arrests. (Id., Exs. 34, 35.) Petitioner argues

15

that the information was material and that the failure to disclose these details about Luna

16

violated Brady, as follows: “These documents were never turned over to the defense,

17

notwithstanding the fact that they contained identifying information that would have made

18

it significantly easier for defense counsel to locate David Luna, as well as additional

19

information regarding his history of violence to use in building a third party culpability

20

defense.” (Reply at 72) (emphasis in original). Petitioner asserts that “[t]he undisclosed

21

information confirmed that David Luna was a real person with a specific physical

22

description and a history of arrests for violent assaultive conduct that made him a very

23

strong contender as the actual third party perpetrator of the Magoon murders.” (Pet. Brief

24

at 29.)

25

The California Supreme Court’s rejection of Petitioner’s Brady claim was

26

reasonable because Petitioner fails to demonstrate that David Luna’s identifying

27

information was itself either exculpatory or material. In United States v. Agurs, 427 U.S.

28

97 (1976), the Supreme Court clearly stated that “there is ‘no constitutional requirement
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1

that the prosecution make a complete and detailed accounting to the defense of all police

2

investigatory work on a case,’” and held that “[t]he mere possibility that an item of

3

undisclosed information might have helped the defense, or might have affected the

4

outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Id., 427

5

U.S. at 109-11 (footnote omitted), quoting Moore v. Illinois, 408 U.S. 786, 795 (1972).

6

Here, Petitioner was apprised of the favorable evidence in this case, that a man named

7

David Luna, who lived in the Jamul area and had a brother in jail named Chris, may have

8

ordered the Magoon murders. Defense investigator Paul Pickering acknowledged that the

9

defense was aware of the reports about Johnson and Luna, and Pickering stated that he

10

asked several witnesses about David Luna. (Lodgment No. 107, Ex. 8 at 3-4.) The

11

prosecution provided the defense with the “essential facts,” including Luna’s name, general

12

location, and possible involvement, that would allow the defense to pursue a third party

13

culpability defense. See Cunningham, 704 F.3d at 1154, quoting Raley, 470 F.3d at 804.

14

That Luna’s date of birth and other information may have made it easier to locate him does

15

not suffice to state a Brady violation. The California Supreme Court could have reasonably

16

rejected this claim for failure to establish a Brady violation on this basis.

17

Additionally, as discussed in detail below with respect to Petitioner’s related claim

18

of ineffective assistance of counsel, even were Petitioner able to show that the

19

prosecution’s failure to turn over this information amounted to a Brady violation, the

20

California Supreme Court could also have reasonably denied the claim for failure to

21

demonstrate prejudice.

22

///

23

///

24

///

25

///

26

///

27

///

28

///
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B.

Ineffective Assistance of Counsel

2

Petitioner separately contends trial counsel was ineffective for failing to conduct an

3

adequate investigation of the third party culpability defense and for failing to present the

4

defense at trial. (SAP at 72-80.) He also asserts that state appellate counsel was ineffective

5

for failing to raise this claim in the first state habeas petition.16 (Id.)

6

As noted above, “a defendant must show both deficient performance and prejudice

7

in order to prove that he has received ineffective assistance of counsel.” Mirzayance, 556

8

U.S. at 122, citing Strickland, 466 U.S. at 687.

9

Pursuant to Strickland, “counsel has a duty to make reasonable investigations or to

10

make a reasonable decision that makes particular investigations unnecessary.” Id. at 691.

11

With respect to performance, Petitioner asserts that “trial counsel was put on notice of a

12

third party culpability defense, but made initial and ineffectual efforts to pursue it, as

13

documented in the declarations of investigator Paul Pickering and case manager Bunny

14

Amendola.” (Pet. Brief at 33-34.) Yet the record reflects that defense counsel made

15

numerous efforts, unsuccessful as they were, to investigate alternate suspects and theories

16

17
18
19
20
21
22
23
24
25
26
27
28

Petitioner appears to raise this contention as both an independent claim of
ineffective assistance of counsel and as cause to excuse the procedural default of his
ineffective assistance of trial counsel claim, as he asserts that he “is entitled to a ruling on
the merits of this IAC claim as well as a ruling on the merits of the IAC claim as to trial
counsel.” (SAP at 80.) For reasons discussed previously in this Order, the Court will reach
the merits of the ineffective assistance of trial counsel claim regardless of the California
Supreme Court’s imposition of state procedural bars.
With respect to Petitioner’s independent claim of ineffective assistance of state
habeas counsel, such an argument fails to find support in clearly established law. See
Coleman, 501 U.S. at 752 (“There is no constitutional right to an attorney in state postconviction proceedings.”), citing Pennsylvania v. Finley, 481 U.S. 551 (1987) and Murray
v. Giarratano, 492 U.S. 1 (1989). “Consequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S. at 752, citing
Wainwright v. Torna, 455 U.S. 586 (1982) (per curiam); see also 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under section
2254.”)
16

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of the crime. Pickering states that after reading the reports about Johnson and Luna, he

2

“thought there was a good chance Johnson was telling the truth,” but while Pickering asked

3

several witnesses about David Luna, “they claimed they didn’t know the name; we didn’t

4

have anything but a name to go on.” (Lodgment No. 107, Ex. 8 at 3.) Amendola states

5

that the defense “believed Dan Magoon was running drugs with Conrado Mejia” and that

6

they “were hoping to find another organization that wanted Magoon dead.” (Lodgment

7

No. 110, Ex. 48 at 2.) Amendola mentions that the defense obtained the names of several

8

individuals with the Arellano Felix cartel through the federal case against Mejia, but “we

9

had nothing else that was really substantial.” (Id.) In a 2011 declaration submitted in

10

support of the second state habeas petition, Pickering states that “[w]e followed every lead

11

which turned up during our investigation, including, trying to identify third parties who

12

had motive to harm the Magoons. There was never a tactical decision made by the defense

13

team to abandon the investigation into third party culpability in the killings of the

14

Magoons.” (Lodgment No. 123, Ex. 9 at 2.) In a 2011 declaration in support of the second

15

state petition, Amendola similarly states that “[w]e followed every lead, including trying

16

to identify the many third parties who had motive to harm the Magoons. The trial team

17

entertained every possible defense theory, particularly the notion that some third party was

18

guilty of killing the Magoons. In my mind, the case was always a ‘who done it’ type of

19

case. I remain convinced to this day that other, third parties were involved in the Magoon

20

killings. To my knowledge, there was never a tactical decision made by the defense team

21

to abandon the investigation into third party culpability in the killings of the Magoons.”

22

(Id., Ex. 10 at 2.)

23

Petitioner contends that much more information has since been unearthed and could

24

have been presented had the trial defense team properly investigated a third party theory of

25

the murders. Kevin Gordon, an investigator who worked with Petitioner’s state habeas

26

attorneys, outlines his conversations with James Johnson, who declined to provide a

27

declaration in support of those proceedings. (Lodgment No. 109, Ex. 36 at 1.) Gordon

28

relates that Johnson and Daniel Magoon smuggled drugs in the 1970’s and 1980’s with a
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1

man they called Conrad or the “Old Man,” left the work for a time and then returned in

2

early 1990’s when both needed money. (Id.) Gordon states that: “Conrad agreed to work

3

with them again and put them in touch with a relative in the Jamul/Spring Valley area who

4

was basically doing what they had been doing before - providing safe transport for

5

Conrad’s drugs after they crossed the border to places further north.” (Id.) Johnson also

6

told him that: “A few months before the crime, Dan also started dealing with several

7

Mexicans named Jaime, Oscar, Armando, and Gabrielle. They had nothing to do with

8

Conrad.” (Id.) Johnson stated that Daniel Magoon sold these individuals weapons in

9

exchange for money and marijuana, and that at some point, these individuals started to owe

10

Daniel money which Daniel went to lengths to collect, including going to Mexico. (Id. at

11

2.) Johnson told Gordon that: “The days before the murder, he and Dan were preparing to

12

move a load for Conrad,” that “[t]he marijuana was going to be brought across the border

13

in a car” and that Johnson was expected to monitor a police scanner and follow the car to

14

a safe house where “he and Dan would then move the drugs to another car with a special

15

compartment and then move that car north towards Los Angeles.” (Id.) On the evening

16

prior to the expected activity, Daniel Magoon seemed nervous about the run and did some

17

cocaine at Johnson’s home, and then “Dan had to go home to meet this relative of Conrad

18

who was dropping off the car that they would use to move the load north,” who always

19

came by around 10 or 11 p.m. (Id. at 3.)

20

Johnson also reiterated and elaborated on the information concerning David Luna as

21

a potential suspect. After the murders, Johnson stated that: “A friend of his called him up

22

and said there might be someone that he should talk to. He met with this other person who

23

told him that Dan and Mary’s murders were a hit ordered by David Luna.” (Id.) Johnson

24

told Gordon he obtained this information from a person who knew someone who had been

25

in the MCC jail with David’s brother Chris, and that “[t]he person in jail who heard this

26

information passed it along to relatives so they would know to stay away from David

27

Luna.” (Id.) According to Johnson, “David Luna was the relative of Conrad who he

28

(Johnson) and Dan had been working with for the last few months,” and Luna lived on a
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1

ranch just a few miles from Steele Canyon Road, the road the Magoon home was located

2

on. (Id.) Johnson told Gordon that “Dan had trusted Luna because Luna was somehow

3

related to Conrad.” (Id. at 3-4.) Johnson also stated that in the weeks or months before the

4

murders, Daniel asked Luna for help with the Mexicans that owed him money and “asked

5

Luna to go down to Ensenada and pressure these guys to pay up what they owed.” (Id. at

6

4.) Johnson added that: “He was also the person who was supposed to bring by the

7

transport car the night of the crime. The day after the murder, he (Johnson) drove to the

8

Luna residence to inform him what had happened but was told by Luna’s father that Luna

9

had left town for several days.” (Id.) Based on the name David Luna and fingerprint

10

records, Gordon located the 1992 home address of a man named David Luna, which was

11

located in the area described by Johnson. (Id.)

12

Federal habeas investigator Apolinar Echeverria, who previously worked in various

13

capacities in law enforcement and investigation for both the prosecution and defense for

14

the past thirty years, states that had he worked on this case, he would have actively

15

investigated David Luna, Conrad Mejia and other drug and weapons traffickers in the

16

Jamul and Tecate areas. (Lodgment No. 120, Ex. 6 at 1-4.) Echeverria also states that co-

17

defendant Alvarado’s investigator “previously worked for, or associated with” individuals

18

involved in trafficking and that that investigator’s brother “was actively working for the

19

cartel at the time of the killings.” (Id. at 4.) Echeverria states that “[i]t was well known in

20

1992 that the Alvarado family were very active smugglers in the Tecate area,” that the

21

family remains involved in trafficking and their “reputation for violence is well known in

22

that area.” (Id. at 4-5.) Echeverria states that Oscar Tirado, whose identification was found

23

in a vehicle on the Magoon property, and Gabriel Villavicencio, among others, “were

24

known drug traffickers,” were tied to Daniel Magoon and were seen on the Magoon

25

property during the month prior to the murders. (Id. at 5.) Echeverria also detailed the

26

smuggling activities and violence employed by individuals involved in the Tijuana Cartel

27

around this time and states that Efrain Perez, who was “responsible for organizing the

28

receipt and importation into the United States of the Tijuana Cartel’s shipments of illegal
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1

drugs, including marijuana,” was, along with other individuals involved in these activities

2

“seen at the Magoon residence on several occasions in the week prior to the killings on

3

May 26, 1992. The Tijuana Cartel and its associates should have been investigated in

4

connection with the Magoon killings.” (Id. at 5-6.) Echeverria also states that: “I have

5

learned that just prior to the Magoon killings, the Magoons lost a large load of marijuana

6

either while in transit or in the State of Washington. Due to the temporal proximity of the

7

loss of this load and the known propensity for violence of drug trafficking organizations

8

likely responsible for the marijuana, this lead should have been actively followed up.” (Id.

9

at 7.)

10

Again, it is apparent from the record that the defense possessed Johnson’s initial

11

statement pointing to David Luna as a possible suspect in the murders and conducted

12

inquiry into that information. Defense investigator Pickering recalled asking witnesses

13

about Luna, but failed to obtain information on him. Similarly, defense counsel Herrera

14

states that “Pickering wanted to develop the larger picture, & explore connections with

15

narcotraficantes who might have had problems with Daniel Magoon. We allowed him to

16

investigate this issue, while reminding him to be careful, and not let himself get killed.”

17

(Lodgment No. 110, Ex. 44 at 5) (emphasis in original.) Herrera states that his co-counsel

18

“became frustrated at what he thought was a ‘fishing expedition,’ and delegated that line

19

of investigation to me.” (Id. at 5.) Herrera states that Pickering “came up with suggestive

20

leads, but nothing sufficiently concrete to present as evidence.” (Id. at 6.) The record also

21

reflects that the defense was aware of Oscar Tirado’s connection to the case, as the defense

22

subpoenaed Tirado as a potential trial witness and later decided against calling him to

23

testify. (RT 3668.) Thus, at a minimum, it is evident that the defense conducted an

24

investigation into potential alternate suspects. Herrera’s statement that the investigation

25

resulted in “nothing sufficiently concrete to present as evidence,” reflects a considered

26

choice, and is entitled to at least some deference. See Strickland, 466 U.S. at 690-91

27

(“[S]trategic choices made after less than complete investigation are reasonable precisely

28

to the extent that reasonable professional judgments support the limitations on
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1

investigation.”); Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir. 1998) (“[T]he relevant

2

inquiry under Strickland is not what defense counsel could have pursued, but rather

3

whether the choices made by defense counsel were reasonable.”); Richter, 562 U.S. at 105

4

(“When § 2254(d) applies, the question is not whether counsel’s actions were reasonable.

5

The question is whether there is any reasonable argument that counsel satisfied Strickland’s

6

deferential standard.”)

7

Even were the Court to assume, without deciding, that counsel acted deficiently in

8

failing to adequately investigate the third party culpability defense and obtain the

9

information set forth above, the California Supreme Court’s rejection of this claim was not

10

contrary to, nor an unreasonable application of Strickland because the California Supreme

11

Court could have reasonably rejected the claim for lack of prejudice. See Strickland, 466

12

U.S. at 691 (“An error by counsel, even if professionally unreasonable, does not warrant

13

setting aside the judgment of a criminal proceeding if the error had no effect on the

14

judgment.”)

15
16
17
18
19
20
21

With respect to the admission of evidence of third party culpability, the Ninth Circuit
has noted that:
Under California law, [a defendant] has a right to present evidence of third
party culpability if it is capable of raising a reasonable doubt about his own
guilt. See People v. Hall, 41 Cal. 3d 826, 833, 226 Cal.Rptr. 112, 116, 718
P.2d 99 (1986). In order for evidence of another suspect to be admissible,
however, “there must be direct or circumstantial evidence linking the third
person to the actual perpetration of the crime.” Id. Motive or opportunity is
not enough.” Id.

22
23

Spivey v. Rocha, 194 F.3d 971, 978 (9th Cir. 1999). The Ninth Circuit has also stated that

24

“[e]vidence of third party culpability is not admissible ‘if it simply affords a possible

25

ground of suspicion against such person; rather, it must be coupled with substantial

26

evidence tending to directly connect that person with the actual commission of the

27

offense.’” People of Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993),

28

quoting Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983) (emphasis in original).
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Petitioner contends that “the declaration of private investigator Apolinar Echeverria

2

summarizes the strong showing as to the likely involvement of David Luna and his drug-

3

smuggling cohorts in the Magoon murders.” (Pet. Brief at 34.) But Petitioner merely

4

shows that David Luna, or other individuals, had a potential motive or opportunity to

5

commit the murders independent of Petitioner, and this showing fails to “directly connect”

6

any of these individuals to the murders. That David Luna owned property in the vicinity

7

of the victims and was likely involved in drug dealing activities with Daniel Magoon offers,

8

at most, that Luna may have had a motive to kill Daniel Magoon. Setting aside the fact

9

that investigator Gordon’s declaration relays second-hand information from his

10

conversations with James Johnson, Johnson’s statements that he and Daniel Magoon

11

worked with Luna and that Luna was expected at the Magoon home on the evening of the

12

murders in the course of their mutual drug smuggling activities demonstrates only that

13

David Luna may have also had the opportunity to commit the murders. Petitioner fails to

14

offer evidence that David Luna was actually at the Magoon home that evening, nor any

15

evidence to substantiate his assertion that Luna committed, ordered, or was at all involved

16

in, the murders. Even were the Court to assume as true that the Magoons were responsible

17

for a missing or stolen drug shipment shortly before the murders, despite Petitioner’s

18

failure to substantiate the basis for this assertion, this does not actually link David Luna to

19

the commission of the murders. Evidence of a missing drug shipment only provides

20

another possible motive, which is still inadmissible unless accompanied by actual evidence

21

connecting Luna to the crimes. See Spivey, 194 F.3d at 978.

22

Indeed, Petitioner’s argument, premised on the unsupported assertion that the

23

murders were motivated by an intercepted or lost drug shipment, is not even limited to

24

David Luna. Petitioner instead posits that missing drugs “would have put the Magoons in

25

deep trouble with the Mexican suppliers of the shipment, triggering a violent response

26

likely engineered by David Luna at the behest of Conrado Mejia, or at the behest of a

27

different cartel whose shipment of contraband was lost on the Magoons’ watch.” (Pet.

28

Brief at 34.)

As with the allegations concerning Luna, Petitioner’s assertions are
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1

speculative and are not supported by evidence.

2

“The pivotal question is whether the state court’s application of the Strickland

3

standard was unreasonable.” Richter, 562 U.S. at 101. Here, because the evidence

4

Petitioner presents “simply affords a possible ground of suspicion against” David Luna,

5

Conrad Mejia, and other individuals linked to cartel and drug smuggling activities, it is not

6

admissible under California law, given the lack of any evidence connecting those

7

individuals to the murders or the crime scene. Ignacio, 10 F.3d at 615. Counsel cannot be

8

faulted to failing to obtain and attempt to present a third party theory in this manner, as the

9

evidence he advances is not “capable of raising a reasonable doubt about his own guilt.”

10

Spivey, 194 F.3d at 978, quoting Hall, 41 Cal. 3d at 833. Meanwhile, the evidence at trial

11

clearly connected Petitioner and Alvarado to both the crime scene and the murders,

12

including but not limited to Alvarado’s fingerprint at the crime scene, blood evidence, nine

13

millimeter bullets found both at the crime scene and in Alvarado’s car, the Helwan box at

14

the Magoon home, the Helwan pistol found in the car, and the large amount of frozen

15

marijuana in the car’s trunk wrapped with tape containing Daniel Magoon’s fingerprint.

16

Based on a review of the record and the materials proffered by Petitioner in support

17

of a prospective third party culpability defense, the Court is not persuaded that there is “a

18

reasonable probability that, but for counsel’s unprofessional errors” in failing to adequately

19

pursue and present this defense at trial, “the result of the proceeding would have been

20

different.” See Strickland, 466 U.S. at 694, see also Richter, 526 U.S. at 112 (“The

21

likelihood of a different result must be substantial, not just conceivable.”) The California

22

Supreme Court could have reasonably denied this claim for failure to demonstrate

23

prejudice, and the rejection of this claim was neither contrary to, nor involved an

24

unreasonable application of, Strickland.

25

C.

Right to Testify

26

Petitioner argues that “[t]he combination of prosecutorial suppression of exculpatory

27

evidence regarding third party culpability and defense counsel’s failure to investigate based

28

on what information was available combined to infringe petitioner’s right to testify.” (SAP
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1

at 80.) Specifically, Petitioner asserts that “[h]ad defense counsel adequately investigated

2

the third party culpability defense to the effect that the Magoons were killed as part of a

3

falling out between drug traffickers unrelated to petitioner, counsel would likely have

4

agreed to petitioner’s adamant assertions that he wanted to testify that he was not involved

5

in the Magoon murders, which would have been consistent with and corroborated by the

6

third party culpability defense.” (Id. at 80-81.)

7

“At this point in the development of our adversary system, it cannot be doubted that

8

a defendant in a criminal case has the right to take the witness stand and to testify in his or

9

her own defense.” Rock, 483 U.S. at 49. Here, however, because both his Brady claim

10

and claim of ineffective assistance of counsel with respect to the third party culpability

11

defense are without merit, Petitioner cannot demonstrate that these alleged errors impacted

12

or infringed his right to testify. That is because the evidence presented in support of the

13

prospective third party culpability defense is not “capable of raising a reasonable doubt

14

about his own guilt.” Spivey, 194 F.3d at 978, quoting Hall, 41 Cal. 3d at 833. As this

15

evidence is not admissible under California law, Petitioner cannot demonstrate a violation

16

of his constitutional rights in this regard.

17

Petitioner fails to show that the California Supreme Court’s rejection of Claim 14

18

was contrary to, or an unreasonable application of, clearly established federal law, or that

19

it was based on an unreasonable determination of the facts. Petitioner is not entitled to an

20

evidentiary hearing on Claim 14. See Sully, 725 F.3d at 1075 (“[A]n evidentiary hearing

21

is pointless once the district court has determined that § 2254(d) precludes habeas relief.”)

22

3.

23

Petitioner asserts that the prosecutor made a number of misleading statements in

24

opening argument about the blood evidence, which were “substantial exaggerations if not

25

entirely fabrications of what the forensic evidence could actually support,” and defense

26

counsel failed to object to the statements, violating his rights to due process and the

27

effective assistance of counsel. (SAP at 81.) Petitioner requests an evidentiary hearing on

28

this claim. (Id. at 55.)

Claim 15

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1

Petitioner raised this claim as Claim 5 in the first state habeas petition. (Lodgment

2

No. 106.) The California Supreme Court summarily denied the claim on the merits and

3

alternately held that aside from the allegation of ineffective assistance of counsel, the claim

4

was barred because it could have been but was not raised on appeal, citing to Dixon.

5

(Lodgment No. 118.) For the reasons discussed above in section III.A., the Court will

6

address the merits of this claim.

7

As stated above, to warrant habeas relief, prosecutorial misconduct must have “‘so

8

infected the trial with unfairness as to make the resulting conviction a denial of due

9

process.’” Darden, 477 U.S. at 181, quoting Donnelly, 416 U.S. at 643. “[I]t ‘is not enough

10

that the prosecutors’ remarks were undesirable or even universally condemned.’” Darden,

11

477 U.S. at 181, quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983).

12

Again, this is because “the touchstone of due process analysis in cases of alleged

13

prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”

14

Smith, 455 U.S. at 219. Alleged instances of misconduct must be reviewed “in the context

15

of the entire trial.” Donnelly, 416 U.S. at 639; see also Greer, 483 U.S. at 765-66, citing

16

Darden, 477 U.S. at 179 and Donnelly, 416 U.S. at 639. Habeas relief is warranted only if

17

the error “had substantial and injurious effect or influence in determining the jury’s

18

verdict.” Brecht, 507 U.S. at 637.

19

During opening arguments at the guilt phase proceedings, the prosecutor previewed

20

anticipated expert witness testimony about the blood and DNA evidence, in part as follows:

21

There is going to be numerous people to come in to try and help put
things together for you. They are called expert witnesses. One of the expert
witnesses you are going to hear from is a man by the name of Gary Harmor.
Gary Harmor does serology; Gary Harmor tests blood. He does a technique
involving what’s called PCR/DNA to determine where blood - - what the
blood source is. And what they do is either include people or exclude people
as being the source of the blood.

22
23
24
25
26
27
28

In this case the pants that Mr. Hoyos was wearing when he was arrested
a little over an hour after the killings were examined and the pants had blood
on them. Not only did the pants contain the blood of Mr. Hoyos, but they had
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1
2
3
4

small what are called high velocity spatters belonging to Mary Magoon and
[J.] Magoon. The air rifle that I showed you had some blood removed or some
samples removed from the barrel and from the trigger guard. The blood
sample from the barrel came back to Mary Magoon, from the trigger guard
Mr. Hoyos. There is a Ruger in there. On the trigger guard that has the blood
of Mr. Hoyos on it.

5
6

(RT 2862-63.)

7

First, the record does not support a conclusion that the prosecutor’s opening

8

argument contained “substantial exaggerations if not entirely fabrications” about the blood

9

evidence.

The expert testimony offered was consistent with the prosecutor’s argument

10

that the blood evidence “came back” to the named individuals. The prosecutor succinctly

11

prefaced the contested comments about the blood evidence by accurately stating that the

12

job of a serologist such as Harmor was to “either include people or exclude people as being

13

the source of the blood.” (RT 2862.)

14

At trial, Gary Harmor testified that six individuals were tested against the blood

15

evidence - the four Magoon family members and the two co-defendants. With respect to

16

the blood found on the trigger guard of the Ruger, Harmor stated that all of the individuals

17

were excluded except for Petitioner, as follows: “If we look at the 6 different knowns that

18

were submitted, Jaime Hoyos is the only one that’s a 1.1, 1.2. So he could be the donor of

19

that.” (RT 3696.) Harmor testified that the results of testing the blood on the air rifle

20

trigger guard “are consistent with Jaime Hoyos but excludes the other people listed on this

21

chart.” (RT 3698.) With respect to the blood on the barrel of that air rifle, Harmor stated

22

that: “Mary Magoon would be included as a potential donor for this stain, but the other 5

23

individuals would be eliminated.” (RT 3699.)

24

Harmor also testified about blood stains found on several different areas of

25

Petitioner’s pants, stating that “only Jaime Hoyos could be the donors of the samples 1

26

through 8.” (RT 3701.) Concerning another stain found on the lower pant leg, Harmor

27

testified that: “Mary Magoon would be the potential donor of that type. She’s in the group

28

that could have donated it, and the other 5 people are excluded.” (RT 3702.) Harmor stated
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1

that yet another stain had two potential donors, including Daniel Magoon and the Magoons’

2

youngest son J., while the other four individuals were excluded. (RT 3703.) On cross-

3

examination, defense counsel elicited that with respect to the samples that came back to

4

Hoyos, Harmor could not definitively state that the blood belonged to Petitioner, explaining

5

that: “I can say it’s consistent with people like him, but I can’t say it’s from him only.”

6

(RT 3718.)

7

Petitioner argues that the prosecutor’s remarks about the blood on Petitioner’s pants

8

and on the Ruger originating from Petitioner constituted prejudicial misconduct because:

9

“Neither statement was supported by the actual evidence, but the jury had no reason to

10

know that, and therefore would have been biased against Petitioner even before the

11

beginning of evidence.” (Pet. Brief at 37.) First, consistent with the prosecutor’s argument,

12

Harmor testified that several blood stains on Petitioner’s pants and those on the Ruger

13

excluded those tested, but included Petitioner. More importantly to the claim presented

14

here, Petitioner fails to offer any evidence to support his assertion that the prosecutor’s

15

argument biased the jury against him. A review of the entire record supports the opposite

16

conclusion, as prior to opening arguments, the trial court specifically directed the jurors to

17

keep an open mind throughout the proceedings and to refrain from making any decision

18

until the conclusion of the evidence, instructing:

19
20
21
22
23
24
25
26

So don’t decide this case based upon the opening statements of the
lawyers. Don’t decide this case based upon the first witness that’s called on
direct examination or cross examination, or the second or the third or whatever
witnesses may be called. Wait until all evidence is presented by all parties,
both in the sense of prosecution evidence, defense evidence, rebuttal evidence,
whatever evidence is offered by anybody. Wait till all the evidence is in, and
reserve judgment until everything is in and then I give you the instructions on
the law.
So we all have a tendency to, potentially anyway, rush to judgment.
Don’t do that. Keep an open mind until this matter is entirely concluded.

27

(RT 2776.)

28

instructed the jurors that the arguments of counsel were not evidence, as follows:

Immediately prior to opening statements, the trial court also explicitly

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1

5

The opening statements of the lawyers in any case, of course, do not
constitute evidence. The evidence that you will be hearing comes from the
witness stand. The evidence is comprised of the sworn testimony of
witnesses, documents that may be introduced, diaphragms [sic], photographs
and so forth. The lawyers’ statements to you, while not evidence, could best
be characterized, I suppose, as a description of what the lawyers feel will, in
fact, be forthcoming during the evidentiary portion of the trial.

6

(RT 2851.) The trial court repeated this admonition at the end of the guilt phase, reminding

7

the jurors that: “Statements made by the attorneys during the trial are not evidence.” (RT

8

4261.)

2
3
4

9

A jury is presumed to understand and follow the trial court’s instructions. Weeks,

10

528 U.S. at 234; Marsh, 481 U.S. at 211; see also Miller, 483 U.S. at 766 n.8 (“We normally

11

presume a jury will follow an instruction to disregard inadmissible evidence inadvertently

12

presented to it, . . . .”) As the record is absent any indication that the jurors exhibited any

13

confusion about these instructions, this Court must therefore presume the jurors

14

comprehended and followed the trial court’s direction. Petitioner fails to show that the

15

prosecutor’s argument was improper, much less that it “‘so infected the trial with

16

unfairness as to make the resulting conviction a denial of due process.’” Darden, 477 U.S.

17

at 181, quoting Donnelly, 416 U.S. at 643.

18

Even if Petitioner could demonstrate misconduct, in light of the trial court’s clear

19

instructions to the jury that the statements of counsel were not evidence and cautioning

20

them to refrain from making any judgment until the close of evidence, the Court cannot

21

conclude that these comments had a “substantial and injurious effect or influence in

22

determining the jury’s verdict.” Brecht, 507 U.S. at 637; see also Wood v. Ryan, 693 F.3d

23

1104, 1113 (9th Cir. 2012) (“On habeas review, constitutional errors of the ‘trial type,’

24

including prosecutorial misconduct, warrant relief only if they ‘had substantial and

25

injurious effect or influence in determining the jury’s verdict.’”), quoting Brecht, 507 U.S.

26

at 637-38.

27

As the comments at issue here did not constitute misconduct, the Court cannot fault

28

trial counsel for failing to object. Indeed, the Ninth Circuit has recognized that “[b]ecause
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1

many lawyers refrain from objecting during opening statement and closing argument,

2

absent egregious misstatements, the failure to object during closing argument and opening

3

statement is within the ‘wide range’ of permissible professional legal conduct.”

4

Cunningham, 704 F.3d at 1159, quoting United States v. Necoechea, 986 F.2d 1273, 1281

5

(9th Cir. 1993) (bracket in original).

6

In any event, the claim is without merit because Petitioner fails to demonstrate

7

prejudice. See Mirzayance, 556 U.S. at 122 (“[A] defendant must show both deficient

8

performance and prejudice in order to prove that he has received ineffective assistance of

9

counsel.”), citing Strickland, 466 U.S. at 687. In view of the fact that the jury was

10

repeatedly instructed that the arguments of counsel were not evidence, and were further

11

cautioned to keep an open mind until the presentation of evidence was concluded, the Court

12

finds no “reasonable probability that, but for counsel’s unprofessional errors, the result of

13

the proceeding would have been different.” Strickland, 466 U.S. at 694.

14

Based on a review of the remarks in the context of the entire record, the Court cannot

15

conclude that the California Supreme Court’s rejection of this claim was contrary to, or

16

involved an unreasonable application of, clearly established federal law, or that it was

17

based on an unreasonable determination of the facts. Petitioner is not entitled to habeas

18

relief or an evidentiary hearing on Claim 15. See Totten v. Merkle, 137 F.3d 1172, 1176

19

(9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by

20

reference to the state court record.”)

21

4.

22

Petitioner contends that the prosecutor also committed misconduct during guilt

23

phase closing arguments when he “argued to the jury that the forensic methodology used

24

to analyze the spot of blood found on petitioner’s pants was invented by a Nobel Prize

25

winner, thus vouching for its reliability, and that this prize winning methodology

26

established there was a 93 to 94 percent chance that the blood was that of Mary Magoon,”

27

which violated Petitioner’s due process rights. (SAP at 82.) Petitioner also alleges that

28

trial counsel’s failure to object constituted ineffective assistance of counsel.

Claim 16

(Id.)

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1

Petitioner requests an evidentiary hearing on this claim. (Id. at 55.)

2

Petitioner raised this claim as Claim 8 in the first state habeas petition. (Lodgment

3

No. 106.) The California Supreme Court summarily denied the claim on the merits and

4

alternately held that aside from the allegation of ineffective assistance of counsel, the claim

5

was barred because it was not preserved in the trial court. (Lodgment No. 118.) For the

6

reasons discussed above in the section III.A., the Court will address the merits of this claim.

7

At trial, serologist Gary Harmor testified about DNA testing, and in particular, the

8

PCR method for copying and testing small samples of genetic material. Harmor testified

9

that the developer of the method, Kary Mullis, had recently received a Nobel prize. (RT

10

3682.) Discussing the potential usefulness of the method in comparing samples, Harmor

11

was asked if the test was used as an “excluder” or an “includer,” and testified that:

12
13
14
15

Its main purpose is as an excluder because the power of the test is about 93
percent to 94 percent. In other words, what that means is that if you were to
take my blood and the court reporter’s blood and test it, 94 percent of the time
we would be able to tell the difference between the two of us. 6 percent of
the time we would match by chance. [¶] So it’s basically most useful as an
excluder. That’s the most definitive statement we can say.

16
17
18
19
20

(RT 3682-83.)
During closing arguments, defense counsel referenced the blood testing and
Harmor’s testimony on the matter, and argued the following:

26

Now, Mr. Harmor gave his own example of the unreliability of the PCR
testing. If you recall he gave the example of if, for example, a test was made
of his blood and the court reporter’s blood, he said that if you did it a hundred
times, 6 percent of the time or 6 times it will come back a match. So out of a
hundred times - - and you can check the transcript - - he said that 6 percent of
the time there is a mistake. So you have a 6 percent error ratio in this, in the
PCR testing. [¶] Now to reverse that, if you took two samples of his own
blood, then, of course, tested it a hundred times, then 6 times it will come back
not his blood and 94 times his blood, if you took the same samples and tested
them.

27

(RT 4097-98.) Defense counsel then went on to challenge the numbers and percentages

28

Harmor discussed during his testimony. (RT 4098-4107.)

21
22
23
24
25

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1
2
3
4
5
6
7
8
9
10

During rebuttal argument, the prosecutor addressed defense counsel’s closing and
discussion of Harmor’s testimony, as follows:
Mr. Herrera talked to you about D.N.A., the D.N.A. evidence with respect to
Gary Harmor. He told you that there was a six percent error in D.N.A.
evidence, a six percent error. So out of every hundred times you test it and
use the court reporter and Mr. Harmor as an example, every hundred times
you test it, six percent of the time there could be an error.
Let’s hear what Mr. Harmor said because it wasn’t read to you.
Question, “Is this method used - - I think you mentioned it, but just to reiterate,
is it an excluder or includer?”
The Court: Please read slowly for the benefit of our court reporter.

11
12
13
14
15
16
17
18

Mr. Greenberg: I will. I’m sorry.
Answer, “Its main purpose is as an excluder because the power of the test is
about 93 percent to 94 percent. In other words, what that means is that if you
were to take my blood and the court reporter’s blood and test it, 94 percent of
the time we would be able to tell the difference between the two of us. Six
percent of the time we would match by chance.”
Not error, by chance. There is no error. A man won a Nobel prize for this
technique. There is no error.

19

(RT 4197-98.) After a brief discussion of the blood sample statistics and population

20

studies, the prosecutor again referenced the testing method, stating: “There was a Nobel

21

prize. It’s used to detect genetic disease, sickle cell anemia, anthropologists use it. This is

22

a reliable technique, no doubt about it.” (RT 4198.)

23

The Court finds no error in this argument. The prosecutor quoted directly from the

24

trial transcript in referencing Harmor’s testimony about the PCR method, and again

25

referenced Harmor’s testimony that the scientist who formulated that procedure won a

26

Nobel prize. Moreover, a review of the record clearly reflects that the remarks here were

27

made in direct response to the closing arguments of defense counsel, who argued that there

28

was a “6 percent error ratio” in the testing method. Thus, even were the Court to conclude
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1

that the remarks are improper, it is clear that the rebuttal comments were an “invited

2

response” to the defense’s closing argument, and in context, did not constitute misconduct.

3

See United States v. Young, 470 U.S. 1, 5, 12-14 (1985) (improper prosecutorial remarks

4

on rebuttal did not rise “to the level of ‘plain error’ when he responded to defense counsel”

5

by expressing his belief in the defendant’s guilt because defense counsel’s closing

6

argument asserted “that the Government did not believe in its own case.”) The Supreme

7

Court has emphasized that:

8
9
10
11

In order to make an appropriate assessment, the reviewing court must not only
weigh the impact of the prosecutor’s remarks, but must also take into account
defense counsel’s opening salvo. Thus the import of the evaluation has been
that if the prosecutor’s remarks were ‘invited,’ and did no more than respond
substantially in order to ‘right the scale,’ such comments would not warrant
reversing a conviction.

12
13

Id. at 12-13. Here, the remarks were obviously made as a direct response to defense

14

counsel’s assertion that the 6 percent figure represented an “error ratio” and that Harmor

15

had discussed the unreliability of the testing method. The prosecutor quoted from and

16

referenced Harmor’s trial testimony in clear rebuttal to the defense’s allegations. If there

17

was any error, it was invited by defense counsel’s own arguments, and in any event did not

18

“‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due

19

process.’” Darden, 477 U.S. at 181, quoting Donnelly, 416 U.S. at 643. Finally, as noted

20

above with respect to Claim 15, at the conclusion of counsels’ guilt phase arguments, the

21

trial court again reminded the jurors that: “Statements made by the attorneys during the

22

trial are not evidence.” (RT 4261.) Again, the jury is presumed to understand and follow

23

the trial court’s instructions. Weeks, 528 U.S. at 234; Richardson, 481 U.S. at 211; see

24

also Greer, 483 U.S. at 766 n.8.

25

Accordingly, considering the remarks in the context of the trial as a whole, because

26

the comments were a direct and equivalent response to defense counsel’s own argument,

27

consisted of direct citations and references to trial testimony, and the trial court repeatedly

28

reminded the jurors that the arguments of counsel were not evidence, Petitioner cannot
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demonstrate that the prosecutor’s rebuttal argument had a “substantial and injurious effect

2

or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637.

3

With respect to Petitioner’s claim of ineffective assistance of counsel for failing to

4

object to the rebuttal argument, as noted above, a counsel’s failure to object to argument is

5

generally considered to be within the “‘wide range’ of permissible professional legal

6

conduct.”

7

Considering that the comments at issue were a response to defense counsel’s own argument

8

and consisted, in large part, of direct quotations to trial testimony, the Court does not find

9

that the argument contained any such “egregious misstatements” that should have

10

reasonably engendered an objection from defense counsel. At any rate, the contention also

11

fails for lack of prejudice, because the remarks did not rise to the level of constitutional

12

error and the Court finds no “reasonable probability that, but for counsel’s unprofessional

13

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at

14

694.

Cunningham, 704 F.3d at 1159, quoting Necoechea, 986 F.2d at 1281.

15

Based on a review of the rebuttal argument in the context of the entire record,

16

Petitioner has not demonstrated that the California Supreme Court’s rejection of this claim

17

was contrary to, or involved an unreasonable application of, clearly established federal law,

18

or that it was based on an unreasonable determination of the facts. Neither habeas relief

19

nor an evidentiary hearing is warranted on Claim 16. See Totten, 137 F.3d at 1176 (“[A]n

20

evidentiary hearing is not required on issues that can be resolved by reference to the state

21

court record.”)

22

D.

Additional Claims of Ineffective Assistance of Counsel

23

1.

24

Petitioner alleges that trial counsel rendered ineffective assistance in failing to

25

pursue a ruling on the admissibility of Petitioner’s custodial statements to police, asserting

26

that the statements were involuntary because Petitioner had requested an attorney during

27

an interrogation that took place two days earlier. (SAP at 85-87.) Petitioner requests an

28

evidentiary hearing on this claim. (Id. at 55.)

Claim 17

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Petitioner raised this claim as Claim II in the first state habeas petition, and the

2

California Supreme Court rejected it on the merits without a statement of reasoning. (See

3

Lodgment Nos. 106, 118.)

4

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held in part that

5

after a person held for interrogation is provided with the required warnings, “[i]f the

6

individual states that he wants an attorney, the interrogation must cease until an attorney is

7

present.” Id. at 474. Later, in Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme

8

Court held that “when an accused has invoked his right to have counsel present during

9

custodial interrogation, a valid waiver of that right cannot be established by showing only

10

that he responded to further police-initiated custodial interrogation even if he has been

11

advised of his rights. We further hold that an accused, such as Edwards, having expressed

12

his desire to deal with the police only through counsel, is not subject to further interrogation

13

by the authorities until counsel has been made available to him, unless the accused himself

14

initiates further communication, exchanges, or conversations with the police.” Id. at 484-

15

85 (footnote omitted); see also Arizona v. Roberson, 486 U.S. 675, 683 (1988) (“As a

16

matter of law, the presumption raised by a suspect’s request for counsel - that he considers

17

himself unable to deal with the pressures of custodial interrogation without legal assistance

18

- does not disappear suddenly because the police have approached the suspect, still in

19

custody, still without counsel, about a separate investigation.”); see also Maryland v.

20

Shatzer, 559 U.S. 98, 109-11 (2010) (affirming that “the [Edwards] prohibition applies, of

21

course, when the subsequent interrogation pertains to a different crime, when it is

22

conducted by a different law enforcement authority, and even when the suspect has met

23

with an attorney after the first interrogation,” but holding that it does not apply when there

24

has been a break in custody longer than fourteen days) (internal citations omitted).

25

Petitioner and his co-defendant Alvarado were arrested in the early morning hours

26

of May 27, 1992, on drug and weapons charges. (Lodgment No. 107, Exs. 9, 12.) At the

27

El Cajon Police Department, Petitioner was separated from Alvarado and interviewed, with

28

a border patrol agent acting as a Spanish language interpreter. (Id., Ex. 12.) Petitioner was
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advised of his rights in Spanish, stated that he understood those rights and “requested to

2

speak with an attorney prior to any questioning. Subsequently so, no statements were

3

obtained of him.” (Id.) At 9 p.m. on May 29, 1992, two detectives with the Sheriff’s

4

Homicide Detail interviewed Petitioner at the San Diego central jail. (Id., Ex. 11.) The

5

detectives stated that they wanted to talk to Petitioner about the homicides in Jamul,

6

indicated that the interview would be conducted in Spanish and read Petitioner his Miranda

7

rights, to which Petitioner stated he understood his rights. (Id. at 1-2.) The officers asked

8

what Petitioner knew about the murders and Petitioner stated that “I didn’t have anything

9

to do with that.” (Id. at 3.) Petitioner stated that he was with his wife and children that

10

evening in El Cajon, and discussed his whereabouts and activities that day and evening.

11

(Id. at 3-12.) Petitioner denied knowing anything about the homicides, where the gun or

12

marijuana found in the car came from, and denied that he killed the victims. (Id. at 11-13.)

13

Petitioner denied ever being in the home, denied knowing the Magoons, but acknowledged

14

knowing the area where the house was located. (Id. at 13-17.) Petitioner also repeatedly

15

denied knowing where the marijuana found in the car came from, and denied knowing

16

about the gun or rifles in the home or car. (Id. at 18-20.) He denied knowing anything

17

about the shooting of the Magoons’ young son. (Id. at 22-23.) After Petitioner was asked,

18

“Or are you so cold hearted that you don’t care. How would you like it if someone did that

19

to your family?” Petitioner replied, “Until, I’m not going to speak until my attorney is

20

present.” (Id. at 24.) The interview transcript reflects that tape was then shut off and the

21

transcript ended. (Id.) Petitioner was arraigned on June 2, 1992 and requested appointed

22

counsel; the request for counsel was granted and the public defender was appointed. (CT

23

10-11.)

24

The record reflects that with respect to the motion to exclude any admissions by

25

Alvarado on the basis of voluntariness, the trial court stated that “[t]he prosecution in this

26

case has advised that no admissions/confessions to law enforcement will be offered in this

27

case. Accordingly, the court will grant the motion in limine and order no statements to be

28

provided absent some further hearing.” (RT 1215; see also CT 3475.) The prosecutor also
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advised that: “I’m not giving up my right to introduce evidence either to impeach the

2

defendant if he were to testify or rebuttal depending on what evidence might come out.”

3

(RT 1216.) Both the prosecutor and counsel for Alvarado agreed that they could postpone

4

any discussion on the matter. (Id.) With respect to Petitioner’s own motion to exclude

5

admissions, the prosecutor similarly stated that: “In our case in chief there will be no

6

statements to law enforcement made by Mr. Hoyos,” and that: “I think the only time it

7

would be in issue is if Mr. Hoyos were to testify.” (RT 1226.) In response, the trial court

8

stated: “I suppose the best way to do it is to grant the motion in that the prosecution will

9

not be offering statements, and to the extent they are going to be offered, that it will be

10

necessary to have a hearing out of the presence of the jury.” (Id.) Defense counsel made

11

no objection to the trial court’s ruling on the matter.

12

Petitioner argues that “[c]ounsel was ineffective for failing to point out to the court

13

that the statements were not merely extracted in violation of Miranda, but were involuntary

14

under Edwards, and thus not admissible for impeachment. Petitioner was substantially

15

prejudiced because the trial court relied on those statements to cure the prejudice from the

16

prosecutor’s failure to disclose the Jiminez [sic] recantation.” (Pet. Brief at 41.)

17

However, even if the Court were to assume, without deciding, that counsel acted

18

deficiently in failing to pursue a motion to exclude Petitioner’s statement on the basis of

19

voluntariness, the claim fails for lack of prejudice, as Petitioner fails to demonstrate “a

20

reasonable probability that, but for counsel’s unprofessional errors, the result of the

21

proceeding would have been different.”

22

statements to police were not introduced at trial. Instead, Petitioner’s assertion of prejudice

23

hinges on a rather tenuous chain of logic. During the post-guilt phase hearing on the

24

defense motion for a new trial based on the belatedly disclosed Jimenez statements,

25

Petitioner and Alvarado each contended that had they known of Jimenez’s credibility

26

problems, they would have testified at trial. The prosecutor, in turn, argued that Jimenez’s

27

prospective testimony would not have impeached Petitioner, only his co-defendant

28

Alvarado, and thus would have had no direct impact on Petitioner’s decision to testify. The

Strickland, 466 U.S. at 694.

Petitioner’s

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prosecutor added that Petitioner had his own reasons to decline to testify and alluded to

2

Petitioner’s statements to authorities. Petitioner presently asserts that trial counsel was

3

ineffective in failing to contest the voluntariness of those statements to police, as

4

successfully excluding those statements would have negated them as a factor in Petitioner’s

5

decision to testify and removed them from the trial court’s consideration of the Brady issue.

6

Petitioner asserts that “[t]he prejudice thus accrues in counsel’s failure to obtain a ruling as

7

to the involuntariness of the statements, and demonstrates that fear of impeachment was

8

not a reason that petitioner declined to testify, but rather because a [sic] of the joint defense

9

agreement with Alvarado.” (Reply at 82-83.) Petitioner specifically contends that “[t]he

10

prosecutor argued, and the trial court accepted, that even if petitioner was

11

unconstitutionally deterred from testifying at the guilt trial because of fear of the admission

12

of Jimenez’s statement attributed to Alvarado, petitioner’s testimony would have been

13

impeached by his own custodial statements and, therefore, it was unlikely that he would

14

have attained a more favorable result.” (SAP at 86) (emphasis added.)

15

While the prosecutor argued the custodial statements were another potential reason

16

that Petitioner declined to testify, the record does not reflect that the trial court considered

17

those statements, much less relied on them, in rejecting Petitioner’s motion for a new trial.

18

In fact, when the prosecutor referenced Petitioner’s statements to the authorities in arguing

19

that Petitioner’s decision not to testify was impacted by factors other than the prospect of

20

Jimenez’s testimony, the trial court professed ignorance as to the substance of those

21

statements. (See RT 4639-40, 4695.) The trial court acknowledged the existence of the

22

statements, but clearly articulated that the basis for the denial of the motion for a new trial

23

was that Petitioner, unlike Alvarado, was not directly impacted by Jimenez’s prospective

24

testimony, reasoning that: “I’m really having difficulty in seeing how your representation,

25

you gentlemen’s representation of Hoyos, was affected adversely when he could testify if

26

he wanted to. Of course, if he would testify, he’s got to face any statements he may have

27

made to the law enforcement - - he being Hoyos - - and I’m not privy to all those statements,

28

but he could testify.” (RT 4695.)
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Indeed, a review of the record shows that the trial court’s ultimate conclusion was

2

clearly based on the lack of a constitutional violation given that Jimenez’s statements only

3

impeached Petitioner’s co-defendant, and does not reflect that the decision was impacted

4

by, or based in any measure on, the contested custodial statements, as follows: “I find there

5

is no cognizable constitutional violation of Mr. Hoyos’ rights by virtue of the prosecutor

6

in this case failing to disclose information about a co-defendant that could be used to

7

impeach a witness called against a co-defendant, if in fact that co-defendant chose to

8

testify.” (RT 4727-28.) The trial court discussed Alvarado’s statement to Jimenez, and

9

noted that it had been excluded under Aranda and Bruton because Alvarado used the word

10

“we,” which implicated both himself and Petitioner. (RT 4728.) The trial court reasoned

11

that “[t]hat statement, however, was made by Alvarado, not in the presence of Hoyos who

12

was in a completely different area. It had application to Alvarado, not to Hoyos, who

13

wasn’t even there. It cannot be imputed to Hoyos.” (RT 4729.) The trial court reasoned

14

that: “Each of these individuals had different degrees and levels of culpability. Hoyos was

15

not subject to impeachment in any respect by Jiminez [sic]. It’s frankly just too speculative

16

to say that a failure to provide information to Alvarado which could truly be used against

17

Alvarado if Alvarado testified, if the jail house informant testified - - it’s just too

18

speculative. [¶] There isn’t any Sixth Amendment violation that I see as to Mr. Hoyos in

19

this case. He could have testified in this case without any fear of impeachment by Jiminez

20

[sic]. He chose not to do so. In fact, he chose not to do so in advance for reasons, as it

21

seems, to be more akin to familial considerations. We sink or swim together, this sort of

22

approach. That’s not cognizable as a constitutional violation. He made a decision and the

23

potential impeaching information of the informant as to his co-defendant is not really of

24

constitutional significance as to Mr. Hoyos. So in all respects, Mr. Hoyos’ motion is going

25

to be denied.” (RT 4729-30.)

26

Thus, regardless of whether trial counsel acted deficiently in failing to seek, and

27

perhaps obtain, a ruling excluding the use of Petitioner’s custodial statements at trial for

28

any purpose, the fact remains that those statements were never introduced at trial and the
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record fails to support a finding of prejudice. Accordingly, the claim of ineffective

2

assistance of counsel fails on the merits. See Strickland, 466 U.S. at 697 (“If it is easier to

3

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we

4

expect will often be so, that course should be followed.”)

5

Because Petitioner fails to demonstrate that the California Supreme Court’s rejection

6

of this claim was contrary to, or an unreasonable application of, clearly established federal

7

law, or that it was based on an unreasonable determination of the facts, he is not entitled to

8

habeas relief. Nor is an evidentiary hearing warranted on Claim 17. See Sully, 725 F.3d

9

at 1075 (“[A]n evidentiary hearing is pointless once the district court has determined that

10

§ 2254(d) precludes habeas relief.”)

11

2.

12

Petitioner contends that trial counsel rendered ineffective assistance of counsel for

13

failing to move to exclude Petitioner’s statements to police on the basis of delay in

14

arraignment and appointment of counsel, pursuant to County of Riverside v. McLaughlin,

15

500 U.S. 44 (1991). (SAP at 89-90.) Petitioner requests an evidentiary hearing on this

16

claim. (Id. at 55.)

Claim 18

17

Petitioner raised this claim as Claim III in the first state habeas petition, and the

18

California Supreme Court rejected it on the merits without a statement of reasoning. (See

19

Lodgment Nos. 106, 118.)

20

Petitioner and Alvarado were arrested in the early morning hours of May 27, 1992,

21

on drug and weapons charges. (Lodgment No. 107, Exs. 9, 12.) After Miranda warnings

22

were administered, Petitioner requested to speak to an attorney prior to questioning. (Id.,

23

Ex. 12.) At 9 p.m. on May 29, 1992, just after Petitioner and Alvarado were arrested on

24

murder and attempted murder charges, two detectives with the Sheriff’s Homicide Detail

25

interviewed Petitioner at the San Diego central jail. (Id., Exs. 9, 12.) Those detectives

26

administered Miranda warnings and Petitioner spoke to them and made numerous

27

statements denying any knowledge of the victims and crimes before again stating: “I’m not

28

going to speak until my attorney is present.” (Lodgment No. 107, Ex. 11 at 24.) Petitioner
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was arraigned on June 2, 1992 at 2 p.m. on murder, attempted murder, robbery, burglary,

2

and drug and weapons charges, and requested appointed counsel; the request for counsel

3

was granted and the public defender was appointed. (CT 10-11.)

4

In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court held that “[w]hatever

5

procedure a State may adopt, it must provide a fair and reliable determination of probable

6

cause as a condition for any significant pretrial restraint of liberty, and this determination

7

must be made by a judicial officer either before or promptly after arrest.” Id., 420 U.S. at

8

124-25 (footnotes omitted). In County of Riverside, the Supreme Court articulated that “a

9

jurisdiction that provides judicial determinations of probable cause within 48 hours of

10

arrest will, as a general matter, comply with the promptness requirement of Gerstein.” Id.,

11

500 U.S. at 56. The Supreme Court further held that “[w]here an arrested individual does

12

not receive a probable cause determination within 48 hours, the calculus changes. In such

13

a case, the arrested individual does not bear the burden of proving an unreasonable delay.

14

Rather, the burden shifts to the government to demonstrate the existence of a bona fide

15

emergency or other extraordinary circumstance.” Id. at 57.

16

In this case, Petitioner faults counsel for failing to pursue a motion to exclude

17

Petitioner’s statements based on the delay in arraignment and appointment of counsel,

18

arguing that “[c]ounsel could not have had a tactical reason for failing to pursue this

19

meritorious argument, because counsel did file a separate motion to exclude the custodial

20

statements on the basis of Miranda violations and involuntariness. Given counsel’s

21

manifest intent to seek the exclusion of petitioner’s custodial statements, counsel’s

22

performance was deficient in failing to invoke a remedy that was equally or more

23

meritorious than the one he did pursue.” (SAP at 90.)

24

“[A] defendant must show both deficient performance and prejudice in order to

25

prove that he has received ineffective assistance of counsel.” Mirzayance, 556 U.S. at 122,

26

citing Strickland, 466 U.S. at 687. Relevant to this contention, the Ninth Circuit has held

27

that: “When the Sixth Amendment ineffective assistance of counsel claim is rooted in

28

defense counsel’s failure to litigate a Fourth Amendment issue, as it is here, petitioner must
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1

show that (1) the overlooked motion to suppress would have been meritorious and (2) there

2

is a reasonable probability that the jury would have reached a different verdict absent the

3

introduction of the unlawful evidence.” Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170

4

(9th Cir. 2003), citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) and Strickland,

5

466 U.S. at 687-88, 691-92, 694.

6

Even if the Court were to assume, without deciding, that any such motion to exclude

7

Petitioner’s statements based on delay was meritorious and would have been successful, as

8

with the prior argument raised in Claim 17, this claim too fails for lack of prejudice. First,

9

Petitioner cannot show any “reasonable probability” of a different result in the absence of

10

Petitioner’s statements, as those statements were never introduced at trial. Ortiz-Sandoval,

11

323 F.3d at 1170. Similar to Claim 17, Petitioner instead argues that he was prejudiced

12

“because the fruits of the unlawfully extracted statements were relied on by the prosecutor

13

and the trial court to deny his motion for mistrial.” (SAP at 91.) Yet, as discussed in detail

14

above, a review of the record shows that the trial court’s ruling was explicitly based on the

15

lack of a constitutional violation given that Jimenez’s statements impeached Alvarado and

16

did not directly impact Petitioner’s decision whether or not to testify. The record further

17

reflects that the trial court’s decision made scant mention of the custodial statements, other

18

than when the trial court noted that he remained unaware of the substance of any such

19

statements. The record fails to support Petitioner’s argument that the court “relied on” the

20

statements in denying the motion for a new trial, and in fact supports a conclusion that the

21

trial court’s decision was instead based on the fact that Petitioner failed to demonstrate that

22

his decision to testify was directly influenced by the potential impeachment of his co-

23

defendant.

24

counsel’s” failure to pursue a motion to exclude the custodial statements based on

25

unreasonable delay in arraignment, “the result of the proceeding would have been

26

different.” Strickland, 466 U.S. at 694. As with the prior claim, this contention fails for

27

lack of prejudice. See id. at 697 (“If it is easier to dispose of an ineffectiveness claim on

28

the ground of lack of sufficient prejudice, which we expect will often be so, that course

As such, Petitioner cannot show “a reasonable probability that, but for

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1

should be followed.”)

2

Because Petitioner fails to demonstrate that the California Supreme Court’s rejection

3

of this claim was contrary to, or an unreasonable application of, clearly established federal

4

law, or that it was based on an unreasonable determination of the fact, habeas relief is

5

unavailable. Petitioner is not entitled to an evidentiary hearing on Claim 18. See Sully,

6

725 F.3d at 1075.

7

3.

8

In Claim 19, Petitioner contends that counsel was ineffective for failing to

9

“investigate and present evidence impeaching the prosecution’s forensic DNA evidence,”

10

noting that the defense retained an expert to counter the prosecution’s evidence, but failed

11

to call him to testify at the Kelly/Frye17 hearing or at trial, leaving the prosecution’s

12

evidence unchallenged. (SAP at 91-93.) In Claim 20, Petitioner contends that trial counsel

13

“was aware of the incriminating content of Gary Harmor’s testimony for the prosecution,

14

not only regarding DNA evidence, but also regarding blood-typing tests and results,” yet

15

was ineffective in failing to prepare and present available evidence to counter his

16

testimony, particularly with respect to Harmor’s errors and use of statistics, at the

17

Kelly/Frye hearing or trial. (Id. at 104-05.) In Claim 21, Petitioner contends that counsel

18

“failed to investigate and present expert testimony that Harmor’s methodology was

19

scientifically flawed and entirely unreliable,” contending that Harmor testified that test

20

results showed Petitioner’s blood was found on a firearm in the victims’ home, despite the

21

actual lack of a match. (Id. at 110-11.) Petitioner requests an evidentiary hearing on each

22

of these three claims. (Id. at 55.)

23
24
25
26
27
28

Claims 19, 20 and 21

Kelly /Frye was a California state law test concerning the admissibility of expert
testimony based on new types of scientific evidence or techniques. See People v. Kelly, 17
Cal.3d 24 (1976); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). It is currently known
as the Kelly test, as Frye’s application in federal court has since been superceded by the
Federal Rules of Evidence and the test announced in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
17

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Petitioner raised these claims as Claims VI, VII, and IX, respectively, in the first

2

state habeas petition, and the California Supreme Court rejected all three claims on the

3

merits without a statement of reasoning. (See Lodgment Nos. 106, 118.)

4

As discussed above, “a defendant must show both deficient performance and

5

prejudice in order to prove that he has received ineffective assistance of counsel.”

6

Mirzayance, 556 U.S. at 122, citing Strickland, 466 U.S. at 687. Moreover, on habeas

7

review, “[t]he pivotal question is whether the state court’s application of the Strickland

8

standard was unreasonable.” Richter, 562 U.S. at 101.

9

A.

Kelly/Frye Standard and Hearing

10

“Under Kelly/Frye, ‘the proponent of evidence derived from a new scientific

11

methodology must satisfy three prongs, by showing, first, that the reliability of the new

12

technique has gained general acceptance in the relevant scientific community, second, that

13

the expert testifying to that effect is qualified to do so, and, third, that correct scientific

14

procedures were used in the particular case.’” Cooper v. Brown, 510 F.3d 870, 944 n. 28

15

(9th Cir. 2007), quoting People v. Roybal, 19 Cal. 4th 481, 505 (1998).

16

Prior to trial, the court held a Kelly/Frye hearing on the admissibility of the DNA

17

evidence, specifically concerning the PCR technique used to analyze the blood evidence.

18

The trial court took judicial notice of numerous transcripts in other judicial proceedings

19

and treatises on the matter. (RT 1348-51, 1368-78.) The parties offered argument and the

20

prosecution cited to a number of prior judicial proceedings that had been noticed. (RT

21

1351-66.) The prosecution also presented the testimony of Gary Harmor, a senior forensic

22

serologist and case work analyst at the Serological Research Institute [“SERI”], who

23

conducted the DNA analysis in this case.

24

Harmor, who had been employed by SERI for 15 years and currently held the title

25

of Senior Forensic Serologist, performed the case work analysis on Petitioner’s case. (RT

26

1379-80.) Harmor discussed his background, training, as well as the development of DNA

27

analysis. (RT 1380-86.) In particular, Harmor discussed the PCR/DQ-Alpha technique,

28

his experience with it, and his prior testimony in 170 cases, including his prior
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qualifications as an expert and testimony in 18-20 cases in the past three years. (RT 1386-

2

88.) Harmor discussed testing protocols and addressed differences between amplification

3

methods and procedures between laboratories; he acknowledged that sometimes it became

4

necessary to add more enzyme, dilute the sample with water, or add bovine serum albumin

5

[“BSA”] to overcome inhibition, a “process that stops the copying of the particular target

6

site of DNA.” (RT 1388-92.) Harmor testified that the methods used to overcome

7

inhibition did not run a risk or producing unreliable or inaccurate results and stated that

8

“[i]t is important to the analyst to get results in a case. So even if the phenomenon of

9

inhibition [sic] observed when you know there is sufficient DNA, human DNA to arrive at

10

a result, it’s better to try to get an answer for the case. Because possibly potentially it could

11

be exculpatory to a defendant.” (RT 1392.) Harmor also discussed the various laboratories

12

that used PCR testing, and stated that such testing was widespread across the United States,

13

as well as throughout other countries and continents. (RT 1393-95.)

14

On cross-examination by defense counsel, Harmor addressed the ways in which his

15

work deviated from the written user guide, such as his use of ammonia and saline instead

16

of water for some samples, and his addition of BSA to overcome inhibition. (RT 1396-

17

97.) Harmor acknowledged that the addition of BSA was not in the protocol, and obtained

18

information about its use through peers, seminars, and published papers. (RT 1397-98.)

19

Harmor added BSA in this case because there was inhibition, in that the sample did not

20

amplify without it. (RT 1399.) Harmor also acknowledged there was contamination in

21

one result, from the jeans, but explained that it was in one result on the reagent blanks, and

22

stated that “[t]here is no evidence that the contaminant was throughout the whole test. If

23

it had been I would not have called the results.” (RT 1400-01.) Harmor and counsel had

24

a brief exchange about population statistics, and Harmor stated that he compiled his

25

statistics using published data and arrived at figures for California and the San Diego area.

26

(RT 1402-03.) SERI performed both internal and external quality control, and often

27

exchanged samples with other labs. (RT 1403-05.) Harmor reiterated that he had testified

28

over one hundred times as a forensic serologist in the past 14 years, in 18 states and 20
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California counties, and had testified approximately “20 times as a PCR expert in 8

2

different states.” (RT 1406.)

3

After hearing argument from counsel, the trial court issued a written ruling on the

4

admissibility of the DNA evidence, denying the motion to exclude that evidence and

5

concluding that “the voluminous materials reviewed by this court, as well as the witnesses

6

proffered by the People cause this court to believe that PCR-DNA is a relatively new

7

scientific technology which is generally accepted as reliable in the relevant scientific

8

community, that the sources furnishing evidence of this are properly qualified experts and

9

the use of proper scientific procedures was present in this particular case.” (CT 2929.)

10

B.

Harmor’s Trial Testimony

11

At trial, Harmor first discussed his training and background, similar to his testimony

12

at the Kelly/Frye hearing, and testified generally about DNA evidence, ABO blood typing,

13

and PCR testing in particular. (RT 3763-82.) With respect to PCR evidence, Harmor stated

14

that: “Its main purpose is as an excluder,” and stated that the same was true about ABO

15

blood type testing. (RT 3682-83.) Harmor also generally discussed the use of statistics

16

and population studies in determining the frequency of markers, as well as noted other

17

“conventional” testing methods, such as Gm and Km markers, both using ABO typing.

18

(RT 3683-85.)

19

Harmor testified that he received samples from six individuals concerning this case,

20

including Daniel and Mary Magoon, the two Magoon children, and both defendants, as

21

well as the crime scene samples. (RT 3685-86.) Harmor first detailed the markers found

22

in each individuals’ samples and those found in the crime scene blood samples. (RT 3687-

23

90.) Harmor concluded that Petitioner “could be” the donor of the blood found on the

24

Ruger’s trigger guard, and that the other individuals were excluded as potential donors.

25

(RT 3696.) With respect to the gun’s stock, Harmor stated that the sample, which came

26

back as 1, 3, 11, was “probably an incomplete Gm type” and reasoned that because

27

“generally we see the 21 factor with this” type, he concluded that sample was “consistent”

28

with Petitioner, whose Gm type was 1, 3, 11, 21, and Harmor stated that the results
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excluded the other five individuals tested. (RT 3697-98.) Harmor further testified that

2

Mary Magoon was included as a possible donor of blood found on the air rifle barrel, while

3

the other individuals were eliminated. (RT 3698-99.) Harmor stated that the blood on the

4

hallway bathroom door was also consistent with Mary Magoon, and again, the other five

5

individuals were excluded. (RT 3699.)

6

Harmor testified that Petitioner was the only one of the six individuals tested that

7

could be the donor of eight samples found on Petitioner’s jeans. (RT 3701.) He also

8

testified that Mary Magoon was a potential donor of another sample found on the jeans,

9

with the others excluded, and that both Daniel Magoon and J. Magoon were potential

10

donors of two other samples, with the others excluded. (RT 3702-03.) Harmor also

11

testified at length about the population frequency of the markers, for instance, that the type

12

found on the Ruger trigger guard was found in 5.2% of the population in San Diego and

13

5.3% in California, or 1 in 19 individuals. (RT 3705-08.)

14

On cross-examination, Harmor acknowledged that there was a user guide, which

15

contained the instructions for conducting PCR analysis and outlined the reagents and

16

materials to be used in the analysis. (RT 3708-09.) Harmor also acknowledged that in this

17

case, there was some contamination found in one of the three control samples, the reagent

18

control sample, which was not supposed to contain DNA, but did. (RT 3710-12.) Harmor

19

testified that: “I believe that I inadvertently got some stray DNA into the blank control on

20

one test while I was processing the DNA.” (RT 3712.) When asked if he followed the user

21

guide, Harmor first stated that there are other recommendations in literature on ways to

22

overcome inhibition, including throwing out the sample, adding more TAQ enzyme, and

23

adding BSA. (RT 3714.) After counsel again asked if Harmor followed the user guide,

24

Harmor replied that: “It’s not strictly followed as a user guide was given to us. We use it

25

as a basis for developing our procedure,” and stated that: “I followed it as far as it went, as

26

far as the instructions were concerned on how to process the DNA and how to amplify the

27

DNA with a few minor modifications that aren’t strictly in the protocol.” (RT 3715.)

28

Harmor used a substance called BSA, which he had previously discussed with his peers
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and read about in literature, to amplify the material in this case. (RT 3715-16.)

2

Harmor again discussed the results of his testing and his reports, including a

3

typographical error about Petitioner being included and excluded as a donor of several

4

samples; Harmor issued a correction of that page in his report. (RT 3717-18.) Harmor

5

acknowledged that he could not conclude that the blood on the jeans came from Petitioner

6

himself, stating that: “I can say it’s consistent with people like him, but I can’t say it’s from

7

him only.” (RT 3718.) Harmor agreed that according to a population frequency of 1 in

8

625, it meant that out of 62,500 people, 100 could have contributed one of the samples,

9

and agreed that for another sample, the ratio was 1 in 15. (RT 3719-20.) Harmor also

10

agreed that some results were incomplete, and explained that he added two types together

11

to come up with a frequency, which eliminated three Magoons, stating that: “It was enough

12

of a sample to come to a partial result. It wasn’t sufficient, in my opinion, to give a result

13

for all the Gm markers.” (RT 3723.) Harmor agreed that most stains on Petitioner’s jeans

14

were too small to test and he did not even attempt the basic Gm analysis. (Id.) Harmor

15

also conceded that it was possible to have inconsistent Gm and DQ Alpha results. (RT

16

3724.) After additional discussion on population frequencies, Harmor also acknowledged

17

that a death row inmate brought civil charges against SERI and his supervisor Wraxall;

18

while Harmor worked at SERI at the time, he was not named in the suit. (RT 3726-27.)

19

Upon inquiry, Harmor also acknowledged that no one at the SERI lab received a Nobel

20

prize. (RT 3727.) On cross-examination by Alvarado’s counsel, Harmor agreed that none

21

of the blood results “implicate or suggest” Alvarado. (RT 3728.)

22

On redirect, Harmor noted that other individuals, including defense personnel, were

23

present to observe some of the testing in this case; he provided copies of results and reports

24

to all involved entities. (RT 3729.) Several samples were too small for certain tests and

25

Harmor again addressed the testing performed on Petitioner’s jeans. (RT 3729-30.) With

26

respect to the results of 1, 3, 11 accompanied by an asterisk, Harmor explained that: “I

27

didn’t say but some of the samples did show a faint 21, but not enough to make a positive

28

determination.” (RT 3730.) He reaffirmed that Petitioner was not excluded as a donor of
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the blood on the air rifle stock and trigger guard, as follows: “Based on my results I have

2

no way to say that that blood is different from Hoyos. There could be other people in the

3

population that could have that set of type as well, but he’s certainly not excluded.” (RT

4

3730-31.) Harmor testified that he used BSA in the amplification of several items,

5

including stains on a shirt and a number of small stains on the jeans, stated that his lab as

6

a whole used BSA in their “quality control cocktail,” and he had no doubts about the results

7

obtained. (RT 3731-32.) On recross, defense counsel and Harmor had the following

8

exchange:

9
10

Q:
Mr. Harmor, you may not have any doubts of your results, but would it
be fair to say there is some doubt whether or not Mr. Hoyos is the person who
contributed the unknown samples that are attributed to him?

11
13

A:
Yes. Again, he’s consistent with - - the stains that were his types that
are similar to him show up. But I cannot say it’s definitely him in the group
that could have donated it. And we have talked about the percentage.

14

(RT 3732-33.) Harmor also stated that while defense personnel were present for earlier

15

tests, they were not present for later tests discussed in his final report. (RT 3733.)

12

16

C.

Evidence Presented in Post-Conviction Proceedings

17

In addition to submitting the reports generated by Gary Harmor in advance of trial

18

(Lodgment No. 110, Exs. 39 and 47), Petitioner submits a copy of the FBI Laboratory’s

19

DQ Alpha Typing Protocol (id., Ex. 41), which was also discussed at trial.

20

Petitioner presents a letter and later declaration from Marc Taylor, a consultant who

21

worked with the defense at the time of trial concerning the DNA evidence. In a letter dated

22

November 11, 1993, prior to trial, Taylor wrote to Richard Fox, the defense’s consulting

23

criminalist, after reviewing the DNA testing performed by SERI. (Id., Ex. 40.) Taylor

24

stated that the “general appearance of the data is well organized and appears to give valid

25

justification for the conclusions outlined in the reports of 12 July 1993 and 22 September

26

1993.” (Id.) Taylor indicated that the “data is fairly complete with regard to the processing

27

of the DNA after extraction, however there are no details of how the evidence was handled

28

or the DNA extracted from the individual items.” (Id.) Taylor stated that because
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extraction “is one of the most critical steps in DNA typing and extraction is where the most

2

severe mistakes, that I am aware of, have occurred,” information about those procedures is

3

important to obtain. (Id.) While Taylor indicated that “SERI has utilized appropriate

4

controls during the extraction and amplification steps and the results of these controls

5

generally indicated that adequate procedures were followed,” but that “the results of the

6

controls alone, without the specifics of the protocol followed, are not sufficient to fully

7

evaluate the procedures utilized.” (Id.) Taylor also specifically noted that one extraction

8

blank was contaminated, as it should not have contained any DNA, yet “it did contain

9

DNA, having at least four of the DQ-Alpha alleles present.” (Id. at 1-2.) Taylor stated that

10

this occurred in the jeans sample and that “[w]hile the level of contamination in this control

11

is low, it is significant, and when a control such as this is contaminated test results of any

12

items extracted with this control specimen must be interpreted with extreme caution or not

13

interpreted at all.” (Id. at 2.) After identifying that item, Taylor concluded by stating that

14

“[b]ased on the data I reviewed, I see no other areas in which I would disagree with the

15

conclusions outlined in the two reports noted above.” (Id.)

16

Taylor later submitted a 2006 declaration in support of the state habeas petition, in

17

which he elaborates on his training, education and experience and discusses his work on

18

Petitioner’s case in 1993 and Harmor’s test results and trial testimony. (Id., Ex. 42.) Taylor

19

repeats his earlier statement that one of the control samples for the testing on the jeans in

20

Petitioner’s case was contaminated and “[t]hat when a control such as this is contaminated,

21

test results of any items extracted with this control sample must be interpreted with extreme

22

caution or, as with many laboratory protocols, not interpreted at all.” (Id. at 3.) Taylor

23

states that Harmor “negates the significance of the contamination of a reagent blank in his

24

testimony” and states that “reagent blanks are controls that are utilized to evaluate the

25

integrity of the testing process, and their contamination indicates that there are problems

26

with the testing process itself. Such contamination events can lead to false inclusions or

27

exclusions in certain circumstances.” (Id. at 4.) Taylor further states that not only did the

28

reagent blank contain DNA, so did the substrate controls, and “therefore, Mr. Harmor’s
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1

explanation that this contamination was not of concern because his substrate controls did

2

not type, is not accurate.” (Id. at 5-6.) Taylor states that “in most laboratories, the

3

procedure followed when contamination of a reagent blank is encountered, is to retest the

4

samples if possible. This retesting requires starting over with the original stained material

5

and proceeding with clean reagents and component procedures to assure no contamination

6

will take place. Results from this testing can then be relied upon.” (Id. at 6.)

7

Petitioner also submits a 2006 declaration from forensic scientist Keith Inman, who

8

also reviewed Harmor’s work and states that with respect to the testing and analysis of the

9

bloodstains found on Petitioner’s jeans, the air rifle trigger guard and the air rifle barrel

10

“significant departure from correct scientific procedure exists.” (Id., Ex. 50 at 1.) Inman

11

criticizes Harmor’s conclusion that the Gm type on the jeans was likely 1, 3, 11, 21,

12

consistent with Hoyos and reasoning that the 1, 3, 11 result was possibly due to the 21

13

being weak. (Id. at 2.) Inman states that “[n]o scientific support exists for this explanation

14

of the data,” and explains that Harmor’s “analytical notes clearly indicate that the sample

15

types as a 1, 3 ; ; 11. No indication exists in his notes that the stain is weak.” (Id.) Inman

16

first states that “[i]t is unusual in my experience for one G3m marker to be detected and

17

another to go undetected,” and then asserts that “Harmor’s logic is clearly flawed. While

18

it may be true that it is possible (under unusual circumstances) for the 21 marker to go

19

undetected, it does not follow logically that the sample therefore is 21 positive.” (Id.)

20

(emphasis in original.) Inman further states that Harmor’s analysis that the sample in

21

question is “consistent with the majority of the other stains on this item” is not objective,

22

but instead “injects a subjective bias into the interpretation of the data. This is an example

23

of poor scientific reasoning, and is not supported by the analytical data for this sample.”

24

(Id.)

25

With respect to the bloodstains on the stock and trigger guard of the air rifle, Inman

26

states that Harmor “makes an assertion not contained in his report” during his trial

27

testimony, that “some of the samples showed a faint 21, but not enough to make a positive

28

determination.” (Id.) Inman states that Harmor’s notes “reveal that the controls for the 21
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did not work properly” and that “[t]he only acceptable scientific remedy for a failed control

2

is to repeat the test, or to consider the test results inconclusive (proceed as if the test had

3

not been run). It is incorrect scientific procedure to call any sample positive - e.g. in the

4

extant case to call a ‘21’ - when the controls have failed, and it is flawed scientific logic to

5

opine that the likely type is something not supported by the data.” (Id. at 2-3.) Inman

6

concludes that the results for the bloodstains on those parts of the air rifle “are not supported

7

by the analytical data, correct scientific procedures were not followed when questionable

8

data was obtained, and Mr. Harmor employed flawed scientific reasoning when

9

interpreting and reporting his results.” (Id. at 3.)

10

Petitioner also submits a 2006 declaration from William Thompson, a California bar

11

member and college professor whose academic focus is DNA evidence and its role in

12

criminal trials. Thompson states that “[i]n my opinion, Mr. Harmor’s testimony was

13

misleading and inappropriate. It greatly exaggerated the value of this biological evidence

14

for incriminating Mr. Hoyos.” (Lodgment No. 113, Ex. 113 at 1.) Similar to Inman’s

15

conclusions, Thompson criticizes Harmor’s scientific reasoning that the samples on the

16

two areas of the air rifle could have come from Petitioner as “stunningly illogical and

17

unscientific,” and states that “Mr. Harmor’s analysis twisted a putatively scientific test into

18

an exercise in speculation and (perhaps) wishful thinking.” (Id. at 2.) Thompson states

19

that “Mr. Harmor then made matters worse by presenting irrelevant and misleading

20

statistical estimates that greatly exaggerated the value of the evidence for linking Mr.

21

Hoyos to the rifle,” because Petitioner did not “exactly” match the markers on the rifle yet

22

Harmor testified about the frequency in the population of those that would match the

23

markers exactly. (Id. at 2-3.) Similar to both Taylor’s and Inman’s statements, Thompson

24

criticizes Harmor’s failure to repeat the test on Petitioner’s jeans after positive DNA results

25

were found in a control that was not supposed to contain any DNA, stating that “[i]n my

26

view, Mr. Harmor failed to follow proper and accepted scientific procedures with respect

27

to this test and his results (with respect to the jeans) should therefore be viewed with

28

suspicion.” (Id. at 4.)
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Finally, Petitioner submits a declaration from Arturo Herrera, one of his two trial
attorneys, who offers a statement with respect to the DNA and blood evidence:
5. The DNA and blood analyses were a critical part of the prosecution’s case.
In the spring of 1993, the prosecutor retested Mr. Hoyos’s blue jeans, and
informed us that Mr. Hoyo’s [sic] pants contained blood spatter, or very small
dots of blood that originated from within two feet of the source, that belonged
to Mary Magoon, and to either Daniel or J[] Magoon. In the late Summer of
1993, we were informed that blood had been found on the trigger guards of
two rifles found in the Magoon house, and that blood from Mr. Hoyos was
identified as being on each one, including one that also had Mary Magoon’s
blood on it. The trial judge refused to give us a continuance to prepare for
this new evidence, but the court of appeal granted our writ of mandate. We
contacted Richard Fox; but Mr. Fox, although familiar with blood-typing, was
not familiar with the DNA typing done in our case. He referred us to Marc
Taylor of Technical Associates.
6. Mr. Taylor reviewed our discovery, and provided us with materials from
other cases challenging the new procedures used in our case. I went to Mr.
Taylor’s office in Pasadena to become educated on the technical aspects of
this testing, and got my first introduction to polymerase chain reaction, or
PCR, a technique for amplifying small amounts of DNA. He sent us materials
that we attached to our motion to exclude the testimony based on DNA testing.
I remember talking about the issue of contamination with him.

17
18
19
20
21
22
23
24
25
26

7. I have been shown a copy of Mr. Taylor’s November 1993 letter to Mr.
Fox about this case. Regarding the issue of contamination, he stated that one
particular part of the testing - that part concerning Mr. Hoyos’s jeans - was
contaminated, and should “be interpreted with extreme caution, or not at all.”
At the Kelly-Frye hearing, and at trial, I brought out the fact that there was
contamination somewhere in the tests run by Mr. Gary Harmor, the
prosecution’s witness as part of my cross-examination. I did not, however,
and could not, reply to Mr. Harmor’s assertion that it didn’t matter. It would
have been very helpful to have an expert say what Mr. Taylor’s report says,
both to the trial court and, if necessary, to the jury, and talk about why the
contamination might have made a difference in the identification of a
particular individual. I found Mr. Taylor to be knowledgeable and clear. I
cannot explain why we did not call him as a witness. I cannot remember
talking with Mr. Fox about any aspect of the blood evidence.

27
28

(Lodgment No. 110, Ex. 44 at 2-3.)
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D.

Discussion

2

Petitioner first challenges trial counsel’s performance at the Kelly/Frye hearing,

3

faulting both counsel’s failure to call an expert witness with respect to the third prong of

4

the test concerning whether “correct scientific procedures” had been followed and for

5

failing to challenge the reliability of Harmor’s statistical analysis.

6

submitted during post-conviction proceedings, trial counsel Herrera acknowledges that the

7

defense retained Marc Taylor as an expert consultant on the DNA evidence and that he met

8

with Taylor to discuss the evidence and contamination, but states that he “cannot explain”

9

why Taylor was not called to testify.

In a declaration

10

However, the record reflects that just prior to the Kelly/Frye hearing, the trial court

11

and both parties discussed the anticipated length of that hearing, and during that discussion

12

Herrera stated: “I don’t expect to present testimony. My expert is going to be here to see

13

if any problems develop that he needs to advise us on. If he needs to testify, it will be

14

short.” (RT 1311.) Strickland dictates that “counsel is strongly presumed to have rendered

15

adequate assistance and made all significant decisions in the exercise of reasonable

16

professional judgment.” Id., 466 U.S. at 690. In light of the clear showing from both the

17

declaration and trial record that counsel retained and consulted with an expert prior to the

18

Kelly/Frye hearing and relied on that expert in conducting the hearing itself, Petitioner fails

19

to overcome the presumption that counsel’s decisions were within the bounds of

20

constitutionally acceptable conduct. See Strickland, 466 U.S. at 690-91 (“[S]trategic

21

choices made after thorough investigation of law and facts relevant to plausible options are

22

virtually unchallengeable; and strategic choices made after less than complete investigation

23

are reasonable precisely to the extent that reasonable professional judgments support the

24

limitations on investigation.”)

25

In any event, Respondent accurately points out that the third prong of Kelly/Frye

26

requires the trial court to determine whether correct scientific procedures were employed

27

in the case, and under California law, errors or mistakes by an individual analyst impacts

28

the “weight” rather than the “admissibility” of the evidence in question and does not
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1
2

implicate Kelly/Frye, as follows:

8

The Kelly test’s third prong does not, of course, cover all derelictions in
following the prescribed scientific procedures. Shortcomings such as
mislabeling, mixing the wrong ingredients, or failing to follow routine
precautions against contamination may well be amenable to evaluation by
jurors without the assistance of expert testimony. Such readily apparent
missteps involve “the degree of professionalism” with which otherwise
scientifically accepted methodologies are applied in a given case, and so
amount only to “[c]areless testing affect[ing] the weight of the evidence and
not its admissibility” (Farmer, supra, 47 Cal.3d at p. 913, Cooper, supra, 53
Cal.3d at p. 814).

9

People v.Venegas, 18 Cal. 4th 47, 81 (1998) (brackets in original); see also Daubert, 509

10

U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful

11

instruction on the burden of proof are the traditional and appropriate means of attacking

12

shaky but admissible evidence.”) Therefore, even were Petitioner able to demonstrate

13

deficient performance, despite the record evidence supporting a conclusion that counsel

14

made a reasoned and tactical decision not to call an expert at the hearing, any alleged

15

deficiencies in counsel’s performance at the Kelly/Frye hearing could not have resulted in

16

prejudice. This is because the hearing was limited to the admissibility of DNA evidence

17

resulting from use of the PCR technique, rather than the adequacy of Harmor’s analysis,

18

and Petitioner fails to demonstrate that Taylor’s testimony could have changed the outcome

19

of the Kelly/Frye hearing. See Strickland, 466 U.S. at 694 (in order to demonstrate

20

prejudice, “[t]he defendant must show there is a reasonable probability that, but for

21

counsel’s unprofessional errors, the result of the proceeding would have been different.”)

22

The California Supreme Court’s rejection of his claim of ineffective assistance of counsel

23

at the Kelly/Frye hearing was neither contrary to, nor an unreasonable application of,

24

Strickland.

3
4
5
6
7

25

Petitioner also challenges counsel’s performance at trial, asserting that counsel

26

rendered ineffective assistance in failing to present evidence to challenge the reliability of

27

the blood and DNA evidence and regarding flaws in Harmor’s analysis through the

28

testimony of Taylor and Inman, and in failing to present evidence about the lack of
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1

reliability in Harmor’s statistical analysis, as discussed by both Inman and Thompson.

2

While Petitioner contends that counsel failed to present expert testimony to

3

challenge Harmor’s analysis, he fails to show that this alleged error did not result from a

4

tactical decision. Trial counsel now states in his declaration that even though he cross-

5

examined Harmor, he “could not [] reply to Mr. Harmor’s assertion that [the

6

contamination] didn’t matter,” that “[i]t would have been very helpful to have an expert

7

say what Mr. Taylor’s report says, both to the trial court and, if necessary, to the jury, and

8

talk about why the contamination might have made a difference in the identification of a

9

particular individual,” and that he “cannot explain why we did not call him as a witness.”

10

(Lodgment No. 110, Ex. 44 at 3.) Yet in Strickland, the Supreme Court specifically

11

cautioned against reviewing a claim of ineffective assistance in this manner, reasoning that

12

“[i]t is all too tempting for a defendant to second-guess counsel’s assistance after

13

conviction or adverse sentence, and it is all too easy for a court, examining counsel’s

14

defense after it has proved unsuccessful, to conclude that a particular act or omission of

15

counsel was unreasonable.” Strickland, 466 U.S. at 689. The Court stated that “[a] fair

16

assessment of attorney performance requires that every effort be made to eliminate the

17

distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

18

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. Indeed,

19

“the relevant inquiry under Strickland is not what defense counsel could have pursued, but

20

rather whether the choices made by defense counsel were reasonable.” Siripongs, 133 F.3d

21

at 736.

22

The record reflects trial counsels’ repeated attempts to retain DNA and blood

23

experts. Counsel moved to continue the trial, which was scheduled to begin on October 1,

24

1993, after receiving Harmor’s revised report in late September 1993, stating in a

25

declaration that they had contacted and attempted to retain experts such as Fox, Taylor, Dr.

26

Simon Ford, and Ed Blake, and that: “All of the expert consultants, spoken to by the

27

defense, have told us that they do not take cases which are in progress. Dr. Fox and Dr.

28

Taylor, our first choices as consultants simply will not agree to be retained if our case, in
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1

fact, begins trial on October 1, 1993.” (CT 308.) At a motion hearing, counsel stated that

2

they had also contacted Professor Thompson, who “would not take on the case as a

3

consultant if the case proceeds to trial today,” and had spoken with personnel at a DNA lab

4

in North Carolina, who “could not guarantee that they could do the work while the case is

5

pending.” (RT 117.) The trial court denied the motion for a continuance. However, after

6

action by the appellate court on October 6, 1993, staying the case, the trial court continued

7

the trial date to January 7, 1994. (CT 3456.)

8

The record reflects that trial counsel retained, at a minimum, Richard Fox and Marc

9

Taylor to consult with on the blood and DNA evidence. (See Lodgment No. 110, Exs. 42,

10

44.) It is evident that counsel also was specifically aware of the contamination issue, as he

11

recalled discussing that matter with Taylor. (See id., Ex. 44.) As noted above, counsel

12

cross-examined Harmor about the contamination at the Kelly/Frye hearing. It is also clear

13

that counsel stated on the record, prior to the Kelly/Frye hearing, that he did not expect to

14

call Taylor to testify at that hearing. Counsel also extensively cross-examined Harmor on

15

the issues raised by Inman, Thompson and Taylor, including the contamination issue,

16

procedures Harmor employed, results of testing, and the statistical analysis. For instance,

17

on cross-examination by counsel, Harmor acknowledged there was contamination in the

18

control samples, stating that: “I believe that I inadvertently got some stray DNA into the

19

blank control on one test while I was processing the DNA.” (RT 3712.) Harmor also

20

admitted that he deviated from the user guide in his attempts to overcome inhibition,

21

explaining that: “I followed [the user guide] as far as it went, as far as the instructions were

22

concerned on how to process the DNA and how to amplify the DNA with a few minor

23

modifications that aren’t strictly in the protocol.” (RT 3715.) Harmor also conceded that

24

he could not conclusively identify the samples that included Petitioner as actually

25

attributable to Petitioner, stating that: “I can say it’s consistent with people like him, but I

26

can’t say it’s from him only.” (RT 3718.) Defense counsel also challenged the value of

27

Harmor’s statistical analysis, and Harmor conceded that depending on the population size,

28

the samples in question could match a large number of people. (RT 3718-22.) Indeed,
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1

counsel and Harmor also had the following exchange, in which Harmor agreed that there

2

was room for doubt that Petitioner contributed the evidence recovered from the crime

3

scene:

4
5

Q:
Mr. Harmor, you may not have any doubts of your results, but would it
be fair to say there is some doubt whether or not Mr. Hoyos is the person who
contributed the unknown samples that are attributed to him?

6
7
8
9

A:
Yes. Again, he’s consistent with - - the stains that were his types that
are similar to him show up. But I cannot say it’s definitely him in the group
that could have donated it. And we have talked about the percentage.
(RT 3732-33.)

10

“[T]he presentation of expert testimony is not necessarily an essential ingredient of

11

a reasonably competent defense.” Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995);

12

see also Richter, 562 U.S. at 111 (“Strickland does not enact Newton’s third law for the

13

presentation of evidence, requiring for every prosecution expert and equal and opposition

14

expert from the defense. In many instances cross-examination will be sufficient to expose

15

defects in an expert’s presentation.”) Regardless of Herrera’s declaration, in which he

16

states he “cannot explain” why Taylor was not called to testify, it is apparent from the

17

record that trial counsel extensively investigated the DNA and blood match evidence, by

18

consulting with and retaining appropriately qualified experts, and challenging Harmor on

19

numerous issues, including contamination, Harmor’s procedures, statistics and results,

20

through cross-examination. These actions were reasonable and are entitled to deference.

21

See Siripongs, 133 F.3d at 736 (“[T]he relevant inquiry under Strickland is not what

22

defense counsel could have pursued, but rather whether the choices made by defense

23

counsel were reasonable.”)

24

Even if Petitioner was able to demonstrate that counsel erred in not calling expert

25

witnesses to refute Harmor’s analysis and conclusions, the claim also fails for lack of

26

prejudice. See Strickland, 466 U.S. at 691 (“An error by counsel, even if professionally

27

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the

28

error had no effect on the judgment.”) Again, counsel’s cross-examination of Harmor
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1

effectively challenged his analysis and conclusions, by pointing out his deviations from the

2

user’s guide and contamination, bringing to light the fact that the statistics allowed for

3

hundreds or even thousands of individuals to be included as potential donors of the

4

samples, and pointing out that Harmor could only state that Petitioner was not excluded as

5

a potential source of the samples in question and could not, in fact, state that it was actually

6

Petitioner’s blood found on the air rifle or jeans.

7

Even had counsel presented expert testimony to further undermine and challenge

8

Harmor’s analysis and testimony, there remained significant and weighty evidence

9

connecting Petitioner to the murders and other offenses apart from the blood and DNA

10

evidence. Shortly after midnight on the evening of the murder, Petitioner and Alvarado

11

were stopped by police for a broken tail light at a location that was about a fifteen minute

12

drive from the Magoon home. (RT 3071.) An hour or two prior to that stop, several

13

neighbors heard a succession or firecrackers or gunshots from the vicinity of the Magoon

14

home. (RT 2919-24, 3517-21.) The police stated that Alvarado, who was driving, was

15

sweaty and shaking, and the weather was neither particularly hot nor cold; upon searching

16

the vehicle, the police found a 9mm magazine containing 12 rounds, several large caliber

17

bullets and a loaded Helwan pistol in the car. (RT 2939-45.) The trunk of their car

18

contained a large quantity of marijuana; police noted some of it was in brick form and some

19

was ice cold “like it had been in a freezer.” (RT 2947-48.) Upon a later search, police

20

found a shell casing in Alvarado’s pocket, while Petitioner had over $1,000 in cash in his

21

pants pockets. (RT 2949-54.) Meanwhile, there was marijuana debris both inside and

22

outside the freezer at the Magoon home, while James Johnson, Daniel Magoon’s friend

23

and collaborator in drug dealing, stated that Daniel Magoon kept marijuana, in often large

24

amounts, in the freezer. (RT 3014-22, 3277-79.) The police also found 9mm shell casings

25

at the crime scene and an empty box for a Helwan pistol was found in a bathroom cabinet

26

in the Magoon home. (RT 3027-35, 3040-43.) Alvarado’s fingerprints were matched to

27

prints on a 7-11 Big Gulp cup in the Magoons’ kitchen. (RT 3191-92, 3367; CT 3338.)

28

Daniel Magoon’s prints were lifted from tape used to package the marijuana. (RT 3193182
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1

94, 3206-08, 3257, 3369-70; CT 3339.) Johnson recognized Petitioner as one of the

2

individuals who visited the Magoon home in the months prior to the murder and interacted

3

with Daniel Magoon. (RT 3279-81.) Meanwhile, Petitioner’s friend Maribel Lopez stated

4

that she accompanied Petitioner to the Magoon home on multiple occasions. (RT 3402-

5

09.)

6

In light of counsel’s extensive cross-examination of Harmor, as well as the strength

7

of the other evidence against him, Petitioner has not demonstrated a “reasonable probability

8

that, but for counsel’s unprofessional errors” in failing to call expert witnesses to counter

9

Harmor’s testimony, “the result of the proceeding would have been different.” Strickland,

10

466 U.S. at 694. Given that Claims 19-21 fail on the merits, the Court is unable to conclude

11

that the California Supreme Court’s rejection of these claims was objectively unreasonable.

12

See Richter, 562 U.S. at 101 (“The pivotal question is whether the state court’s application

13

of the Strickland standard was unreasonable.”) Petitioner is not entitled to habeas relief on

14

Claims 19, 20 or 21. Nor is an evidentiary hearing warranted on these claims. See Sully,

15

725 F.3d at 1075 (“[A]n evidentiary hearing is pointless once the district court has

16

determined that § 2254(d) precludes habeas relief.”)

17

4.

18

Petitioner asserts that the defense counsel presented at trial was prejudicially

19

ineffective because it was “inconsistent with the version of the events of March [sic] 26-

20

27 that petitioner had told him” and “was predicated entirely on the putative existence of a

21

sudden quarrel and shootout with Dan Magoon, without any comparable or complementary

22

defense as to the murder of Mary Magoon.” (SAP at 112.) Specifically, Petitioner alleges

23

that “[c]ounsel failed to investigate and present substantial evidence of petitioner’s lack of

24

involvement in the homicides, the likelihood of third party culpability, and the numerous

25

defects in the prosecution’s forensic evidence,” and “counsel failed to investigate and

26

present significant amounts of corroborating evidence to support the unsuccessful defense

27

that counsel did present.” (SAP at 113-14) (emphasis in original.) Petitioner requests an

28

evidentiary hearing on this claim. (Id. at 55.)

Claim 22

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Petitioner raised this claim as Claims XI and XII in the first state habeas petition,

2

and the California Supreme Court rejected the contentions on the merits without a

3

statement of reasoning. (See Lodgment Nos. 106, 118.)

4

As stated above, “a defendant must show both deficient performance and prejudice

5

in order to prove that he has received ineffective assistance of counsel.” Mirzayance, 556

6

U.S. at 122, citing Strickland, 466 U.S. at 687. “Judicial scrutiny of counsel’s performance

7

must be highly deferential.” Id. at 689. Because this Court is reviewing the California

8

Supreme Court’s adjudication of Petitioner’s claims of ineffective assistance of trial

9

counsel, the Court must not only apply Strickland, but AEDPA as well. “The standards

10

created by Strickland and § 2254(d) are both ‘highly deferential,’ . . . and when the two

11

apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105, quoting Strickland, 466

12

U.S. at 689, Lindh, 521 U.S. at 333 n.7, Mirzayance, 556 U.S. at 123. “When § 2254(d)

13

applies, the question is not whether counsel’s actions were reasonable. The question is

14

whether there is any reasonable argument that counsel satisfied Strickland’s deferential

15

standard.” Richter, 562 U.S. at 105.

16

Petitioner’s first argument, that trial counsel was ineffective for failing to investigate

17

and present a defense of third party culpability and Petitioner’s lack of involvement in the

18

murders, was soundly rejected in Claim 14. It is apparent from the record that co-counsel

19

Herrera supported and supervised the investigation into alternate suspects, and case

20

manager Amendola as well as investigator Pickering made a concerted effort to identify

21

other individuals who could have been responsible for the murders. Petitioner told the trial

22

court after the verdicts that he had wanted to testify and that “[m]y attorney argued

23

something different than what I had told him.” (RT 4953.) Even were the Court to construe

24

this unspecific statement as supporting Petitioner’s contention that he wanted to testify in

25

order to deny any involvement in the murders, that defense counsel chose to pursue another

26

defense does not compel a finding that counsel acted deficiently. See Raley, 470 F.3d at

27

799 (“A disagreement with counsel’s tactical decisions does not provide the basis for

28

declaring that the representation was constitutionally deficient.”), citing United States v.
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1

Mayo, 646 F.2d 369, 375 (9th Cir. 1981) (per curiam).

2

Petitioner’s next contention, that the defense advanced at trial was infirm because it

3

lacked an adequate defense to the Mary Magoon murder in comparison to the defense

4

asserted for the Daniel Magoon murder, is refuted by the record. The state record plainly

5

reflects that the primary defense strategy, as set out in detail during closing arguments to

6

the jury, was to assert self-defense or manslaughter for the murder of Daniel Magoon and

7

second degree murder for Mary Magoon, thereby attempting to avoid a penalty phase and

8

a potential death sentence for the two deaths. (See RT 4057-58, 4062-63, 4065, 4079,

9

4084-87.) This strategy was clearly tactical, based on the evidence, and falls well within

10

the scope of “reasonable professional assistance.” Strickland, 466 U.S. at 689.

11

Petitioner relatedly contends that trial counsel should have defended against the

12

Mary Magoon murder charge by presenting evidence that she was a partner in her

13

husband’s drug business, was familiar with the use of weapons, was also high on cocaine

14

that evening, and probably used her son as a human shield. (SAP at 114.) The record

15

shows that trial counsel unsuccessfully attempted to introduce evidence about Mary

16

Magoon’s prior use of, and familiarity with, weapons, as well as her presence at Daniel

17

Magoon’s arrest ten years earlier, and decided to present propensity evidence only with

18

respect to Daniel Magoon. Because the evidence of Daniel Magoon’s propensity for

19

violence was substantial, including his long-standing involvement in drug smuggling, prior

20

arrests, and that Jimmy Johnson knew him to answer the door armed, and the evidence

21

concerning Mary was largely based on Johnson’s speculative statement that she might have

22

been going for a gun that evening, this was a reasonable decision entitled to deference.

23

Strickland, 466 U.S. at 689 (“[A] court must indulge a strong presumption that counsel’s

24

conduct falls within the wide range of reasonable professional assistance; that is, the

25

defendant must overcome the presumption that, under the circumstances, the challenged

26

action ‘might be considered sound trial strategy.’”), quoting Michel v. Louisiana, 350 U.S.

27

91, 101 (1955). As discussed in Claim 6, the evidence in the record fails to support a

28

defense theory that Mary Magoon presented a threat to the defendants, much less the
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1

imminent threat necessary to justify the introduction of propensity type evidence.

2

Petitioner’s remaining contentions about Mary Magoon’s purported involvement in

3

her husband’s drug activities and her actions on the evening of the murders are speculative

4

and similarly fail to support a claim of ineffective assistance of counsel. For instance,

5

federal habeas investigator Echeverria states that “[a]t the time of his death, Dan Magoon

6

was a drug and weapons trafficker and his wife, Mary Magoon, was involved with him in

7

that business,” but fails to articulate a basis for this assertion. (Lodgment No. 120, Ex. 6

8

at 4.) The record lacks evidence that Mary Magoon had a direct involvement in her

9

husband’s activities. Both James Johnson, who was involved with Daniel Magoon’s drug

10

dealings, and his wife Oresta, only offered indications that Mary had some knowledge of

11

her husband’s drug and weapon selling activities; neither stated that Mary had any

12

involvement. (See Lodgment No. 109, Exs. 29, 30.) In any event, trial counsel touched

13

on this matter in closing, noting that: “She was a partner, as I pointed out in opening, in

14

marriage. She was at least a silent partner as to the drug dealing.” (RT 4053.)

15

Mary’s drug use on the night of the murder was noted at trial, both during the

16

testimony of medical examiner Super, who noted the cocaine content in her blood, and in

17

defense counsel’s arguments to the jury that both Daniel and Mary Magoon had drugs in

18

their system on the evening of the murders. (RT 3620, 4053.) However, Petitioner’s

19

contention that counsel should have investigated and presented evidence about Mary

20

Magoon’s “pervasive derelictions of her maternal duties with respect to her children,

21

presumably due to her chronic drug use” are speculative and conclusory. (See SAP at 114.)

22

In the state habeas petition, incorporated by reference, Petitioner argues that the condition

23

of the Magoon home was “slovenly,” that J. in particular was experiencing developmental

24

delays, and “[h]ad social services learned of the conditions in which J[] was living in 1992,

25

regulations would have mandated immediate removal from that home.” (Lodgment No.

26

106 at 126-27.) Petitioner further states that “[t]he house’s deterioration suggests that Mary

27

had used cocaine for an extended period of time, and had probably developed a tolerance,”

28

and posits that “[h]ighly intoxicated people have used their own children as hostages, or
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1

shields, in order to avoid seizures by the police, or to exploit another cocaine dealer,” and

2

includes several newspaper articles concerning such instances. (Id. at 127-28; Lodgment

3

No. 111, Ex. 63.) This argument appears to be based at least in part on the declaration of

4

health services management director Cherlyne Short Majors, who states she has over 30

5

years of experience in the fields of “child/maternal health and substance dependence.”

6

(Lodgment No. 111, Ex. 62.) Majors states that a “very substantial dose” of cocaine was

7

in Mary Magoon’s system at the time of her death, and opines that her review of materials

8

concerning the condition of the Magoon home, the family relationships, and autopsy

9

reports “suggests that Mrs. Magoon had used cocaine [or related stimulant] for a lengthy

10

period, and had likely developed a high tolerance.” (Id.) Majors opines that Mary Magoon

11

was “neurologically impaired” at the time of her death and that “[i]t is highly probable that

12

her movements in that moment of crisis did not comport to her own norms, much less the

13

norms of the larger society.” (Id.) Even were the Court to credit Majors’ opinion that

14

Mary was impaired at the time of her death, an assertion that Mary used her son as a shield

15

is without record support and cannot sustain a claim of ineffective assistance. James v.

16

Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by

17

a statement of specific facts do not warrant habeas relief.”)

18

The remainder and bulk of this claim concerns allegations that trial counsel

19

inadequately challenged the prosecution’s case, primarily with respect to the forensic

20

evidence, and that counsel failed to present other available evidence in support of the

21

defense that was advanced at trial.

22

Petitioner focuses much of his argument on trial counsel’s alleged failures in

23

challenging the DNA, blood spatter and ballistics evidence, and characterizes “the failure

24

to retain a blood spatter expert to testify as to the unlikelihood that petitioner killed Mary

25

Magoon” as “the most significant and prejudicial aspect of counsel’s deficient

26

performance.” (Reply at 95) (emphasis in original.)

27

As an initial matter, the Court must address the declaration of George N. Crawford,

28

which was submitted as an exhibit to the federal petition in support of this claim, and on
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1

which Petitioner significantly relies in support of his argument that trial counsel acted

2

deficiently in investigating his case and challenging the forensic evidence introduced at

3

trial. (See SAP at 115-17.) As noted previously, the instant claim was previously raised

4

as Claims XI and XII in the first state habeas petition, which was adjudicated in February

5

2009. (See Lodgment Nos. 106, 118.) Meanwhile, Crawford’s declaration, federal habeas

6

Exhibit B, was signed in August 2010. (See ECF No. 54-4.) In Pinholster, the Supreme

7

Court held that “review under § 2254(d)(1) is limited to the record that was before the state

8

court that adjudicated the claim on the merits.” Id., 563 U.S. at 181. Pursuant to Pinholster,

9

this Court cannot consider the Crawford declaration in deciding whether the California

10

Supreme Court’s rejection of this claim was contrary to, or an unreasonable application of,

11

clearly established federal law, or was based on an unreasonable determination of the facts,

12

because this exhibit was not part of the state record at the time the issues were adjudicated

13

by the California Supreme Court. See id. at 182-83 (“It would be strange to ask federal

14

courts to analyze whether a state court’s adjudication resulted in a decision that

15

unreasonably applied federal law to facts not before the state court.”) Only if Petitioner

16

first satisfies section 2254(d) on the record which was before the state supreme court can

17

the Court consider this declaration.18

18
19

20

In an Order dated January 4, 2011, three months before the Pinholster decision,
this Court denied Respondent’s motion to dismiss Claim 22 for failing to exhaust state
remedies. (ECF No. 72 at 7-10.) This Court reasoned that the addition of the Crawford
declaration did not render Petitioner’s claim unexhausted, stating that “[h]ere, in state
court, as in federal court, Petitioner claims that trial counsel was ineffective in failing to
investigate and present evidence in defense against the prosecution’s case, specifically
concerning the physical and forensic evidence and Petitioner’s alleged lack of involvement
in the crime.” (Id. at 9-10.) This Court noted that the Crawford declaration, which
discussed several items of evidence previously addressed in the state habeas petition, also
“does appear to offer several new facts in support of Petitioner’s claim.” (Id. at 9.) While
the addition of those facts did not render the claim unexhausted, because the declaration
itself was not presented to the California Supreme Court, and clearly includes facts not
before that court, it would indeed be “strange” to consider those facts in deciding whether

21
22
23
24
25
26
27
28

18

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The record reflects that trial counsel obtained expert assistance, by retaining

2

criminalist Parker Bell to assist the defense, and case manager Amendola recalled visiting

3

the crime scene with Bell, as follows:

4
5
6
7
8
9

Parker walked through the Magoons’ house with us. He pointed out that the
ceilings were too low for anyone to have lifted the rifles to strike Mary with
them. There would have been marks or holes in the ceiling, but we didn’t see
anything, nor any patching of marks or holes. When Parker Bell came for a
meeting, I remember laying on the floor and trying to be Mary and trying to
figure out where she was shot. I don’t remember a decision not to use Parker
at trial, or being part of any discussion about it - - but I was gone months
before trial began.

10

(Lodgment No. 110, Ex. 48 at 3.) Yet, a declaration from state habeas counsel Michael

11

Snedeker indicates that Bell’s last invoice was from February 1993, and notes that at that

12

time less than 40% of discovery was in, and was before the defense received the blood

13

analysis reports. (Lodgment No. 123, Ex. 7 at 1.) Snedeker states: “There is no record of

14

any other criminologist being hired by counsel for petitioner.” (Id.) Assuming that another

15

criminologist was not retained, Petitioner fails to persuasively explain how this renders

16

trial counsel’s performance deficient. The state record is bereft of any evidence reflecting

17

the work Bell performed, any reports generated, and what, if anything, additional

18

investigation could have produced. Available records reflect that counsel also contacted

19

and retained at least two other experts to consult on the forensic evidence, including

20

criminalist Richard Fox and Marc Taylor, an expert in criminalistics and DNA analysis.

21
22
23
24
25
26
27
28

the state supreme court’s decision was unreasonable under section 2254(d). See Pinholster,
562 U.S. at 182-83.
At oral arguments, Petitioner responded to the Court’s inquiry on this point in
apparent agreement that the exhibit could only be considered if Petitioner first satisfied
section 2254 on the record before the state court, stating that: “And Your Honor’s question
about the impact of Pinholster case, our view is that if the Court concludes the California
Supreme Court was unreasonable in its decisions or its failure to conduct evidentiary
hearings, then the Crawford declaration, Exhibit B, can be used in weighing the prejudice
to Mr. Hoyos.” (ECF No. 142 at 61.)
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(Lodgment No. 110, Exs. 40, 44.) As discussed above, the record reflects that trial counsel,

2

after consulting with experts including Taylor and Fox, engaged in an extensive cross-

3

examination of prosecution witnesses Kennedy and Harmor about the blood spatter and

4

DNA evidence, which was a viable and reasonable tactical choice. See e.g. Bonin, 59 F.3d

5

at 834 (“[T]he presentation of expert testimony is not necessarily an essential ingredient of

6

a reasonably competent defense.”); Strickland, 466 U.S. at 689 (“There are countless ways

7

to provide effective assistance in any given case.”) As discussed below, even assuming

8

counsel acted deficiently in failing to adequately investigate and challenge the

9

prosecution’s forensic evidence, Petitioner fails to demonstrate prejudice.

10

In the first state habeas petition, and incorporated by reference in the instant Petition,

11

Petitioner lists a number of points aimed at criticizing the adequacy of the defense

12

presented at trial in an apparent attempt to buttress the contention that a different defense

13

theory, that of third party culpability, would have proven more successful. Among the

14

points Petitioner raises are the following: Petitioner states that the arresting officer did not

15

note any significant injuries to Petitioner’s person and questions how Petitioner’s blood

16

was found on one of the weapons at the scene, argues that the timing testimony provided

17

by witness Mary Lange does not match the prosecution’s theory nor the blood evidence,

18

questions why hair matching J. Magoon was found in both Daniel and Mary Magoon’s

19

hands, notes Alvarado’s print on the cup in the Magoon kitchen and questions why the

20

Magoons would have let them into the house given Johnson’s statements that Petitioner

21

and his companions showed up at all hours and made the Magoons nervous and scared,

22

and asserts that D. Magoon knew Petitioner as a friend of the family and told authorities

23

that Petitioner had not been to their home that evening. (Lodgment No. 106 at 135-46.)

24

With respect to Mary Magoon, Petitioner argues that her murder and the asserted torture

25

did not take place as the prosecution asserted, given the likelihood that Mary Magoon knew

26

the combination to the bedroom gun safe, the lack of blood in the bedroom and hall and

27

that she likely had a cigarette in her mouth. Petitioner argues that these facts refute the

28

contention that Mary Magoon was attacked in the bedroom and that they confirm that the
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1

final shots were fired close in time and could not have constituted torture. (Id.)

2

As Strickland instructs, “[a] fair assessment of attorney performance requires that

3

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

4

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

5

perspective at the time.” Id., 466 U.S. at 689. Petitioner “must overcome the presumption

6

that, under the circumstances, the challenged action ‘might be considered sound trial

7

strategy.’” Id., quoting Michel, 350 U.S. at 101. Instead of adhering to this standard,

8

Petitioner implores the Court to retrospectively evaluate counsel’s performance in a

9

manner explicitly discouraged by Strickland. The Court declines to do so, as the matters

10

Petitioner raises here could have been the result of trial counsel’s strategic decisions-

11

Petitioner provides no evidence to the contrary. See Burt v. Titlow, 571 U.S. ___, 134

12

S.Ct. 10, 17 (2013) (“It should go without saying that the absence of evidence cannot

13

overcome the ‘strong presumption that counsel’s conduct [fell] within the wide range of

14

reasonable professional assistance.’”) (bracket in original), quoting Strickland, 466 U.S. at

15

689.

16

For instance, Petitioner asserts that trial counsel was deficient in the “failure to elicit

17

from D[] that he knew petitioner as a friend of his father, and that petitioner had not gone

18

to his house that night, before, during, or after the shootings.” (SAP at 114) (emphasis in

19

original.) Petitioner relies on videotaped interviews with seven year old D., conducted

20

after the crimes, and contended in the state habeas petition that the reports summarizing

21

those interviews were “misleading” with respect to Petitioner. (Lodgment No. 106 at 145.)

22

While the record submitted to the Court does not contain copies of those videotaped

23

interviews, the Court will assume the truth of Petitioner’s account, that D. indicated in prior

24

interviews that Petitioner was a friend of his father’s and was not at the Magoon home that

25

evening. Yet, the record also reflects that D. also stated during prior interviews, and

26

testified at trial, that he was asleep during the murders and woke in the morning to find his

27

parents dead. (See e.g. RT 2894-97.) Absent any information or evidence to the contrary,

28

the Court must presume that the failure to question D. about this apparent inconsistency,
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1

particularly in light of his young age and the traumatic experience he went through in

2

discovering his parents’ bodies and then testifying about it at trial, “might be considered

3

sound trial strategy.” Strickland, 466 U.S. at 689.

4

In addition, several of the inconsistencies in the prosecution’s case Petitioner now

5

highlights were in fact brought out at trial and specifically discussed in defense counsel’s

6

arguments to the jury to attack the prosecution’s case as well as in support of the defense

7

theory that the murders were the result of an unexpected altercation rather than any planned

8

or premeditated crime. For instance, during closing arguments, trial counsel repeatedly

9

raised the fact that the arresting officer did not note any injuries to Petitioner and questioned

10

the test results and testimony that Petitioner’s blood was found on both his pants and a

11

weapon recovered from the scene given his lack of injury. (See RT 4093-97, 4105-07.)

12

Defense counsel clearly attacked the prosecution’s timeline and theory of the crimes,

13

asserting that the crimes were not planned nor were the events prolonged, but instead “was

14

five minutes to ten minutes of chaos.” (RT 4055-62.) Defense counsel speculated in

15

closing that Mary Magoon went into the bedroom knowing the location of the secret

16

compartment and the Helwan, and addressed the lack of blood in the bedroom and argued

17

that it showed no torture took place in that room, which undermined the prosecution’s

18

theory of the crime. (RT 4059-61.) Because counsel addressed these points at trial, either

19

through the introduction of evidence or arguments to the jury, they do not support this

20

claim of ineffective assistance.

21

Thus, for the reasons stated above, the California Supreme Court could have

22

reasonably rejected these contentions based on Petitioner’s failure to satisfy Strickland’s

23

performance prong, as Petitioner has not established that counsel’s actions were

24

unreasonable, or that they fell outside the admittedly “wide range of reasonable

25

professional assistance.” Strickland, 466 U.S. at 689; see also Siripongs, 133 F.3d at 736

26

(“[T]he relevant inquiry under Strickland is not what defense counsel could have pursued,

27

but rather whether the choices made by defense counsel were reasonable.”)

28

///
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On this record, the California Supreme Court could also have reasonably rejected

2

this claim based on Petitioner’s failure to demonstrate prejudice. Petitioner’s primary

3

contentions are that trial counsel erred in attempting to avoid conviction on first degree

4

murder charges and a subsequent penalty phase proceeding rather than competently

5

investigating and presenting a different defense and that counsel failed to investigate and

6

adequately challenge the forensic evidence against Petitioner.

7

counsel’s error was a failure adequately to investigate, demonstrating Strickland prejudice

8

requires showing both a reasonable probability that counsel would have made a different

9

decision had he investigated, and a reasonable probability that the different decision would

10

have altered the outcome.” Bemore v. Chappell, 788 F.3d 1151, 1169 (9th Cir. 2015),

11

citing Wiggins, 539 U.S. at 535-36. Here, Petitioner fails to establish a reasonable

12

probability of either a different decision by counsel or a different outcome at trial. Again,

13

the evidence of third party culpability Petitioner offers goes only to motive and

14

opportunity, and is inadmissible under California law, while Petitioner’s arguments about

15

Mary Magoon’s involvement in her husband’s drug smuggling activities and her

16

participation that evening are based on speculation. Even if trial counsel had obtained of

17

all of the information presented here, Petitioner fails to demonstrate any reasonable

18

probability that counsel would have chosen another defense over the one presented at trial,

19

nor any reasonable probability that the outcome of the trial would have differed.

20
21

Petitioner also fails to show prejudice stemming from the absence of expert
testimony challenging the physical evidence. Petitioner argues that:

22

It is highly relevant to prejudice that trial counsel failed to investigate the
defense that petitioner had laid out for them at the beginning of the case, and
to which he adhered throughout the course of the trial, i.e., that he and
Alvarado arrived at the Magoon residence to find the bloody scene and the
victims, after which they left with marijuana from the garage. The testimony
of a blood spatter expert would have provided very strong corroboration of
petitioner’s defense, and would have undermined what the prosecutor claimed
as highly inculpatory evidence.

23
24
25
26
27
28

“In a case in which

///
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1

(Reply at 97.) Petitioner criticizes the collection and analysis of the ballistics evidence,

2

hair samples, and blood evidence, noting the presence of numerous bullet casings in the

3

home that were not matched to any weapons recovered from the scene or the car,

4

questioning how both Daniel Magoon and Mary Magoon had hair in their hands matching

5

J. Magoon, and positing that the lack of significant injury to Petitioner coupled with the

6

delayed discovery of blood matching Petitioner on the weapons at the scene raised a

7

possibility that the stains were the result of contamination. However, the state record is

8

bereft of evidence outlining the contents of prospective testimony by a blood spatter expert,

9

ballistics expert, or other relevant expert19 on these matters, or detailing how any such

10

testimony could have made a difference at Petitioner’s trial. These contentions, on their

11

own, are insufficient to demonstrate prejudice. See Grisby v. Blodgett, 130 F.3d 365, 373

12

(9th Cir. 1997) (“Speculation about what an expert could have said is not enough to

13

establish prejudice.”)

14

Petitioner’s prejudice argument also remains unpersuasive given the substantial

15

evidence supporting the first degree murder verdict, particularly with respect to Mary

16
17

18

In support of the first state habeas petition, Petitioner offers a declaration by
forensic scientist Laurie Kaminsky, who reviewed the prosecution’s hair examination
report. (Lodgment No. 117, Ex. 118.) Kaminsky’s declaration is limited to the analyst’s
discussion of hairs found in Mary Magoon’s right hand, labeled #44, that were similar in
hue, but different in pigmentation size and distribution, to that of Daniel Magoon, and
criticizes the analyst’s opinion that the evidence “leads to no conclusion” as to whether the
hairs originated from Daniel Magoon. (Id.) Kaminsky states that given the differences
noted, “I would exclude the hair standard from Daniel Magoon, Sr. as a possible source for
the evidence hair.” (Id.) However, Kaminsky qualifies her conclusion by noting that: “It
should be noted that I have not personally examined the hairs referenced in this declaration
nor have I examined [the analyst’s] examination bench notes.” (Id.) Upon reviewing the
trial record, the analyst testified that with respect to #44, “I could not determine from whom
this particular strand of hair originated.” (RT 3359.) Given the lack of any trial testimony
including Daniel Magoon as a possible source of this hair, Petitioner fails to demonstrate
that this expert’s prospective testimony was contrary to the trial testimony, much less show
that it would have made any difference to the outcome of the trial.

19
20
21
22
23
24
25
26
27
28

19

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Magoon, as well as the special circumstances. Mary Magoon was found several rooms

2

away from any weapon and was murdered in her pajamas, a pacifier in her hand and a baby

3

blanket at her feet, and the evidence supported a conclusion that her three year old son was

4

likely near her at the time of his wounding and possibly her death. Blood consistent with

5

Petitioner and Mary Magoon was found on different areas of weapons connected to the

6

crimes, and blood consistent with the victims’ blood were found on Petitioner’s pants.

7

Petitioner and Alvarado were stopped by police about an hour or two after the murders at

8

a location 15 minutes away from the Magoon home, with frozen marijuana in their trunk,

9

a Helwan pistol in the car, and 9mm magazine and other bullets in the car. Meanwhile,

10

9mm casings were found at the crime scene, in addition to an empty box for a Helwan,

11

remnants of frozen marijuana inside and outside the freezer, and Alvarado’s fingerprints

12

on a cup in the kitchen, while Daniel Magoon’s prints were found on tape used to package

13

the marijuana. On this record, Petitioner fails to demonstrate any reasonable probability

14

that the outcome of the trial proceedings would have differed if not for counsels’ alleged

15

errors in investigating and presenting the defense at trial. See Strickland, 466 U.S. at 694;

16

Richter, 562 U.S. at 112 (“The likelihood of a different result must be substantial, not just

17

conceivable.”) Petitioner is not entitled to habeas relief on Claim 22. Because Petitioner

18

fails to satisfy section 2254, an evidentiary hearing is not warranted on Claim 22. See

19

Sully, 725 F.3d at 1075 (“[A]n evidentiary hearing is pointless once the district court has

20

determined that § 2254(d) precludes habeas relief.”)

21

5.

22

Petitioner contends that he was deprived of the effective assistance of counsel at the

23

penalty phase, as the defense “presented extremely cursory testimony at the penalty trial,

24

consisting of relatives who testified that they loved petitioner and would be saddened if he

25

were executed,” yet failed to investigate or present information about Petitioner’s

26

background,

27

accomplishments, as evidence in mitigation. (SAP at 117.) Specifically, Petitioner

28

contends that trial counsel failed to investigate and present evidence that: (1) Petitioner

Claim 23

upbringing,

and

social

history,

including

his

difficulties

and

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had undergone torture at the hands of Mexican police; (2) although Petitioner had spent

2

time in Mexican prisons for involvement in drug related activities, there was a lack of

3

violence; (3) Petitioner had a long-standing struggle with drug abuse, and counsel failed to

4

procure a mental health expert to investigate the reasons for his drug use; and (4)

5

Petitioner’s childhood was difficult and marked by physical abuse and indications of

6

childhood disabilities. (Id. at 118.) Petitioner requests an evidentiary hearing on this claim.

7

(Id. at 55.)

8

Petitioner raised this claim as Claim XIII in the first state habeas petition, and the

9

California Supreme Court rejected it on the merits without a statement of reasoning. (See

10
11

Lodgment Nos. 106, 118.)
A.

Penalty Phase Presentation

12

Prior to the commencement of the penalty phase presentation to the jury, counsel

13

litigated the prosecutor’s attempt to introduce a prior conviction in Mexico as evidence in

14

aggravation under Cal. Penal Code section 190.3(c); after hearing testimony and citing

15

concerns about the presumption of guilt, absence of jury trial, and allegations of torture to

16

obtain confessions in that jurisdiction, the trial court excluded the conviction. (RT 4510-

17

11.) After this ruling, the prosecution brought up the possibility of instead introducing

18

evidence concerning Petitioner’s prior criminal activity under Cal. Penal Code section

19

190.3(b) and exploring the issue of prior criminal activity through cross-examination of

20

any mental health experts or character witnesses called to testify on Petitioner’s behalf.

21

(RT 4511-12.) In response, defense counsel stated:

22
23
24
25
26
27

Your Honor, at this point I would like to rather clearly and candidly
indicate that with the ruling the court made, that it is not our intention right
now to call a psychiatrist or a psychologist, so I don’t need to address what
would be used there.
And amongst other witnesses, just specifically jumping into it, were we
to call other family members, for instance, it would not be as character
witnesses, it would be to the limited extent, for instance, to ask would the
death of your brother, father, or husband be a great loss to you?

28
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1
3

Which I suggest to the court will be so definitive that it will not arguably
come near opening up character -- by being a character affirmation or
testimony as to good character, and it will not invite or allow crossexamination including bad character, including this prior conviction.

4

(RT 4512-13.) The trial court noted that because the prior conviction was excluded, “the

5

prosecution could not impeach the defendant via have you heard type questions framed in

6

terms of a conviction of the defendant,” if the defense called character witnesses, but

7

acknowledged that “the underlying facts may well be the subject of a proper have you heard

8

type of question.” (RT 4513.) The prosecution stated that if such character witnesses were

9

called, he would seek to ask about Petitioner’s involvement in a 1983 robbery, a 1992

2

10

jewelry theft, a 1989 check forgery, and trafficking in narcotics in 1977. (RT 4518.)

11

Correctional consultant James Park, who worked on death row at San Quentin State

12

Prison, testified about the four-tier prison classification system, of which Level IV was the

13

highest security. (RT 4782-86.) Park stated that an individual sentenced to life without

14

parole would be placed in a Level IV institution, of which there are five in California, and

15

showed photos of the cells, security measures, and discussed prison conditions. (RT 4786-

16

98.)

17

maintenance or industry if offered at that institution, and that the institutions had libraries,

18

a group TV room, exercise yards, and the inmates could have family visits. (RT 4799-

19

4806.)

Park acknowledged that even in a Level IV prison, inmates could work on

20

Carrie Baker, who lived in Jamul near the Magoon home at the time of the murders,

21

estimated she came home from work that evening at 2:00 a.m., and heard gunshots at about

22

2:45 a.m.20 (RT 4807.) She was reading the paper with the windows open and heard a

23

muffled gunshot, shortly thereafter heard three additional gunshots, and after another space

24

of time, heard two more gunshots. (RT 4808.) Baker stated that the shots startled her dog,

25

who barked his “people bark,” and while she was able to quiet him down by 3:30 a.m. to

26

27
28

As the California Supreme Court noted, the gunshots Baker heard “would have
been after the time defendants had been arrested.” Hoyos, 41 Cal. 4th at 889.
20

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1

go to sleep, she was continually woken until about 5:15 a.m. (RT 4808-09.) She was then

2

woken by sirens at around 7:30 or 8 in the morning, and thereafter learned of the murders.

3

(RT 4809.) She noted in her diary that she heard gunshots before she went to bed on May

4

26 to 27, 1992. (RT 4810-11.) Baker explained that her entry would have been made for

5

Tuesday night May 26, even though it was actually Wednesday morning, because she gets

6

home from work late on Tuesday nights. (RT 4811-12.) Baker thought, based on her dog’s

7

barking, that someone was in her yard that evening. (RT 4815.)

8

Jaime Armando Hoyos Alvarado, Petitioner’s son, testified that he loved his father

9

and would feel “badly” if he could no longer see him. (RT 4819-20.) Petitioner’s son

10

Jesus Ivan Hoyos Alvarado also stated that he loved his father and would feel badly and

11

miss him if he could no longer see him. (RT 4820-21.) Myrna Myela Hoyos Alvarado,

12

Petitioner’s daughter, testified that she loved her father. (RT 4821.) Myrna Myela

13

Alvarado de Picos, Petitioner’s wife, testified that the prior three witnesses were her

14

children with Petitioner, that today was Petitioner’s birthday, that she would feel extremely

15

sad if he were put to death, and that she was currently raising the children on her own. (RT

16

4822-23.)

17

Jesus Antonio Hoyos Jaime, Petitioner’s older brother, stated that he loved his

18

brother a lot, missed him a lot, and would feel sad to lose a loved one. (RT 4823-24.)

19

Ricardo Hoyos Jaime, Petitioner’s younger brother, testified that he loved and missed his

20

brother and would be greatly affected were Petitioner put to death. (RT 4824-25.) Eusebio

21

Hoyos, Petitioner’s younger brother, stated that he loved his brother and it would be very

22

painful to him if Petitioner were put to death. (RT 4825-26.) Eusebio stated that he lived

23

in Tecate, as did their entire family, and explained that their mother and father could not

24

come to court today because “they are a little bit ill, in bad health.” (RT 4826.) Maria

25

Elena Hoyos Hernandez, Petitioner’s sister, also stated that she missed her brother and

26

would feel very sad if he were put to death. (RT 4827-28.)

27
28

The prosecution waived opening statement and declined to present evidence at the
penalty phase, offering argument only in closing. (RT 4779, 4782, 4828, 4840-58.)
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1

B.

Background Information Submitted During Post-Conviction
Proceedings21

2
3

Petitioner submitted to the state court declarations from numerous family members,

4

including several declarations from siblings who testified at trial, as well as declarations

5

from several family members who did not testify at trial, including other siblings and his

6

mother. Petitioner also presented school records, a declaration from his family physician

7

about his history of drug addiction, and his own declaration. As set forth below, these

8

declarations discuss Petitioner’s background, including his upbringing, family and social

9

history, and particularly physical abuse by his father, Petitioner’s personality and

10

rebelliousness, his later drug addiction and accidents suffered by Petitioner in childhood

11

and as an adult. Petitioner also presented documents and information about Mexican prison

12

conditions and torture in those institutions, and a declaration from a prison worker who

13

knew Petitioner. Finally, Petitioner presented an evaluation from a clinical psychologist

14

who examined him prior to the trial proceedings, and a declaration from a clinical

15

psychologist specializing in neuropsychology who examined Petitioner during post-

16

conviction proceedings.

17

The Hoyos family owned and operated a ranch in Tecate, Mexico, and every family

18

member worked to run the ranch. The Hoyos children all worked on the ranch every day

19

both before and after school, starting at a young age and leaving them with little time for

20

leisure. (Lodgment No. 114, Ex. 80 at 1, Ex. 82 at 1, Ex. 83 at 1, Ex. 111 at 1.) Petitioner

21

states that he started working on the ranch as “a little boy,” and that: “I was the best of all

22

my siblings at working with horses so over time I became almost exclusively in charge of

23

the task of handling the horses.” (Lodgment No. 115, Ex. 84A at 1.) Petitioner’s brother

24

25
26
27
28

Several documents in the state record, including declarations signed by Petitioner’s
mother, siblings, girlfriend, family doctor, torture expert Alfaro, and Petitioner himself, are
in Spanish, and are accompanied by unsigned English translations. (See e.g. Lodgment
Nos. 114, 115.) Any references or citations to the declarations are to the English versions
of those documents.
21

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1

Adolfo adds that: “Jaime was very good at working with horses. He was the one mostly in

2

charge of taming the wild horses because he was so skilled at this and he was better at this

3

than the rest of us.” (Lodgment No. 114, Ex. 112 at 1.) Petitioner’s brothers Eusebio and

4

Ricardo each note that Petitioner had a lot of energy and enjoyed working with the cattle

5

and wild horses, and was thus well-suited for his work on the ranch, with Ricardo adding

6

that: “Part of this job means getting thrown off horses and pounded around a lot.” (Id., Ex.

7

82 at 1, Ex. 111 at 2.)

8

Petitioner’s grandparents lived nearby and his two grandmothers treated the children

9

very differently, with Petitioner stating that his maternal grandmother “was extremely

10

affectionate and loving with all her grandchildren, including me,” while his paternal

11

grandmother “was a cold, angry, grumpy woman who picked favorite grandchildren.”

12

(Lodgment No. 115, Ex. 84A at 3.) Petitioner was not among his paternal grandmother

13

favorites, and Petitioner said: “I felt she actually despised me while she just ignored” two

14

of his brothers. (Id.) Petitioner notes that his grandmother bought presents for some

15

grandchildren and nothing for others, that she “was friendlier and more patient” with some

16

of the children while “she just yelled at and scolded” him and a few of his other siblings.

17

(Id. at 4.) Petitioner’s mother Leticia confirms this disparate treatment, stating that her

18

mother-in-law “rejected” and “disliked” Petitioner and reasoning that “[m]aybe it was

19

because Jaime was the most restless and hyper of the grandchildren.” (Lodgment No. 114,

20

Ex. 79 at 13.)

21

Petitioner’s mother Leticia states that Jesus, her husband and father to their children,

22

“was an alcoholic for many years” when the children were young and “drank almost

23

everyday.” (Id. at 5.) Leticia states that Jesus “was hard on the children,” and “hit them

24

just because he was angry,” and that when he drank “he would act even more ill-tempered

25

than normal.” (Id. at 4-5.) Leticia explains that Jesus had a complicated relationship with

26

his own parents, who had hit him. (Id. at 7.) Leticia describes Jesus as a “disciplinarian”

27

who “was too strict with and hard on his children,” states that she “used to cry when Jesus

28

hit the children” and “had to sneak in fun for my children and do it behind my husband’s
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1

back.” (Id. at 10.)

2

Petitioner states that: “My father and his mother had the same ill-tempered

3

character,” as they were “both demanding,” and “both angered easily and seemed unhappy

4

or grumpy.” (Lodgment No. 115, Ex. 84A at 5.) Petitioner adds that: “My father’s

5

temperament was even gruffer when he drank alcohol. As a kid, I used to be afraid of my

6

father and especially when he was drunk because this meant he might hit me for no reason.

7

Other times, he hit me and my siblings with a belt when he got angry or to discipline us.”

8

(Id.) Petitioner describes his relationship with his father as “intense” and states that: “We

9

communicated with each other as passionately as we butted heads with each other.” (Id.

10

at 3.) Petitioner also felt that his brothers Ricardo and Jesus were jealous over the bond he

11

had with their father, stating that: “Even as adults, they used to say our father treated me

12

better than them.” (Id.) Maria Elena notes that: “My father hit all his children equally for

13

what he considered misbehaving. However, Jaime was hit the most because he was the

14

most restless and disobedient child.” (Lodgment No. 114, Ex. 83 at 2.) Maria Elena adds

15

that their father was “ill-tempered and ornery,” was “unpredictable” and “would also get

16

angry for no reason,” and that he “also beat the animals when he was irritable and angry.”

17

(Id. at 2-3.)

18

Petitioner’s family also provided additional information about Petitioner’s behavior

19

during childhood and adolescence. Leticia states that Petitioner cried more than her other

20

children, had mood swings and “could go from being calm in one moment to becoming

21

restless and anxious or hyper in the next moment, or vice versa, with no apparent trigger.”

22

(Id., Ex. 79 at 17-18.) Leticia states that: “As an adult, Jaime has confessed to me that he

23

felt depression, desperation, anxiety, and restlessness throughout his childhood and

24

adolescence.” (Id. at 17.) Petitioner was hyperactive in his classes at school, became

25

“more rebellious and temperamental” as he got older, and did not perform well in school,

26

as he “was more focused on socializing than on his academics.” (Id. at 18-20.) Leticia

27

said that Petitioner “was a moody child and he was a temperamental teenager.” (Id. at 21.)

28

As Petitioner got older, “it was obvious his friends were drug addicts and/or drug dealers,”
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1

and while many old friends expressed their concerns about Petitioner’s drug use and new

2

friends, Petitioner denied bad behavior. (Id. at 22.) After one argument with his parents

3

about his long hair and friends, Leticia recalls that Petitioner went to his room, where a

4

pistol was kept under the bed, slammed the door and: “The next thing I heard was Jaime

5

firing the pistol. I ran into the bedroom and saw that Jaime had shot himself in the arm.”

6

(Id. at 25.) Leticia states that Petitioner “definitely overreacted” to the argument and she

7

suspected he was trying to scare her and his father, or that drugs were a factor in his actions.

8

(Id.)

9

Petitioner’s oldest brother Jesus Jr., similarly states that Petitioner “was never very

10

good in school, but none of us were very school smart except my brother Eusebio and my

11

sister Maria Elena.” (Id., Ex. 80 at 1.) Jesus states that Petitioner was “naughtier and more

12

hyper” than the other children and that “[i]t seemed like it was hard for Jaime to stay still.”

13

(Id.) Jesus states that: “At first, Jaime’s friends were good kids but as Jaime got older his

14

friends started to come from a bad crowd.” (Id. at 2.) Petitioner’s brother Eusebio adds

15

that he recalled his brother was “too playful” in school and it landed him in trouble, noting

16

that in middle school, Petitioner “punctured the tires of a teacher and got suspended and

17

after this he stopped going to school.” (Id., Ex. 82 at 2.) Eusebio, like Jesus, notes that

18

Petitioner had good friends when he was younger, yet “as Jaime got older, he started having

19

friends who were bad kids and who were a bad influence on Jaime.” (Id. at 3.) His brother

20

Ricardo recalls that: “Jaime was definitely the most hyper one out of all his siblings. In

21

comparison, he had more energy and it was harder for him to stay still.” (Id., Ex. 111 at

22

2.) He adds that: “As a kid, Jaime was more disobedient than the rest of us, but his

23

disobedience was nothing serious,” and that “Jaime got scolded more than the rest of us

24

because of his disobedience.” (Id. at 2-3.) Petitioner’s brother Adolfo also recalls that

25

Petitioner had a number of friends, but also noted that the type of people Petitioner

26

associated with changed as Petitioner aged, stating that: “as he got older his friends started

27

to be the kind of people who were a bad influence on him. I could tell by the way these

28

friends dressed in a fancy manner and by the luxurious cars they drove that they were
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1

probably into drug dealing.” (Id., Ex. 112 at 2.) Petitioner also includes school records

2

from Tecate, reflecting that he failed the subjects of mathematics and Spanish in high

3

school while achieving the minimum required grades in other subjects, was suspended from

4

school at one point in 1973, and was the subject of a behavior report for repeatedly arriving

5

late to school in 1979. (Lodgment No. 115, Ex. 85A.)

6

Petitioner also suffered several accidents in his youth and adulthood. Leticia

7

recounts that Petitioner lost his right thumb in an accident at age 15. (Lodgment No. 114,

8

Ex. 79 at 23.) She also states that he fell off a horse at 15 or 16 and returned home bruised

9

and scratched after rolling down a hill on the horse and losing consciousness, stating:

10

“Jaime told us the horse fell, he was asleep for a while on the ground, and when he woke

11

up, the horse was dead.” (Id. at 23-24.) She states that Petitioner later got a motorcycle,

12

then sold it after having an accident with it. (Id.) Leticia also recounts that Petitioner was

13

involved in a car accident not long prior to the events in the case, when he and a cousin

14

“were driving in a small Volkswagen bug that flipped over and fell into a ravine.” (Id. at

15

25.) The car they were in was totaled and his cousin broke his collarbone, while Petitioner

16

did not sustain any visible injuries. (Id.)

17

Petitioner’s brothers also noted the injuries from his work with horses, with Jesus Jr.

18

stating that: “Jaime did get injured and knocked around a lot because it was tough work

19

trying to tame wild horses.” (Id., Ex. 80 at 2.) Meanwhile, Adolfo states that Petitioner

20

“got thrown off horses and fell a lot,” noting that especially at the beginning of training the

21

horses, “the horses get easily spooked.” (Id., Ex. 112 at 1-2.) Adolfo states that: “Even

22

though Jaime stopped living on the ranch, he returned and he always loved being with the

23

horses. I remember seeing Jaime take a few hard falls with the last horse he was taming.

24

This was just a few months before he was arrested in San Diego.” (Id. at 2.) Eusebio states

25

that: “About 15 or 20 years ago Jaime needed to be hospitalized in Tecate for a week or so

26

after being involved in an accident with a horse. I didn’t see the accident but I remember

27

seeing Jaime in the hospital,” and adds that: “Jaime was always the most daring of all his

28

brothers. That is why he loved cars and motorcycles and horses. He got hurt a lot but he
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1

wasn’t scared of anything.” (Id., Ex. 82 at 4.)

2

Several family members, as well as Petitioner and the family’s physician, discuss

3

Petitioner’s lengthy history of drug and alcohol use and abuse. Petitioner’s mother states

4

that: “Jaime’s father and I knew Jaime was into drugs since he was a teenager,” but

5

admitted that the family did not confront the matter until he was in his early thirties, about

6

a year prior to his arrest in this case. (Id., Ex. 79 at 29.) She states that Petitioner “probably

7

started using drugs even earlier than I thought he did. Perhaps this accounted for some of

8

his wild behavior as a teenager.” (Id. at 21.) During treatment by their family doctor,

9

Petitioner spent time at the family’s home in Tecate and it “was the first time he had ever

10

told us in any detail about the drug addiction we had long suspected.” (Id. at 29.) Leticia

11

states that after treatment, Petitioner started to use drugs again and then went to the United

12

States. (Id. at 30.) Dr. Jaime Chavez Jiminez, the Hoyos’ family physician, treated

13

Petitioner for his drug addiction upon Petitioner’s request, and states that: “My method of

14

treatment was to provide a substantial intake of vitamins and healthy food, but not other

15

drugs of any kind - no tranquilizers, or anything that would replicate in any way the effect

16

of drugs.” (Lodgment No. 115, Ex. 91A at 2.) He states that Petitioner had “severe, but

17

typical” withdrawal symptoms, complained of pain and aches, heard and saw things that

18

did not exist, expressed sensitivity to sound and light, experienced paranoia, and expressed

19

wanting to commit suicide. (Id.)

20

Jesus Jr. states that he thought his brother started drinking at age 16 or 17, while

21

sister Maria Elena suspected him of both dealing drugs and guns throughout his twenties.

22

(Lodgment No. 114, Ex. 80 at 3, Ex. 83 at 4.) Ricardo recalls that his brother drank and

23

smoked during parties and other events as a teenager, in contrast to Ricardo, who waited

24

to drink until 18, which was approved of by their father. (Id., Ex. 111 at 3.) Petitioner

25

states that: “I started smoking marijuana when I was about 12 or 13 years old. Over the

26

years, my drug use escalated with the use of stronger drugs such as cocaine, heroin, and

27

pharmaceutical drugs and I became a serious drug addict. If I was out on the street today

28

I feel I would still have a drug addiction and substance abuse problem without serious
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1

emotional and medical therapy.” (Lodgment No. 115, Ex 84A at 5.) He states that: “I

2

never really liked marijuana. But by the time I was 14 and 15 years old, I was smoking

3

marijuana daily and often consuming several drinks of alcohol as well.” (Id.) He recalls

4

that: “I started using cocaine sporadically when I was about 16 years old and by the time I

5

was 20, I used cocaine daily and was addicted. On an average day, I snorted about three

6

or four grams and on an extreme day, I snorted up to a half an ounce of cocaine.” (Id. at

7

6.) Petitioner enjoyed the high, as it “altered my mood and it made me forget about any

8

anger or sadness,” but acknowledged cocaine also made him “feel more aggressive” and

9

“act hysterical and paranoid.” (Id.) He states that: “I got into heroin as a way to even out

10

the extreme highs I got from cocaine,” and also used pharmaceuticals “when I realized I

11

was using too much of the cocaine or heroin I was supposed to be selling or storing. For a

12

time I just used pills, but then I started mixing all the drugs.” (Id.) He states that: “By age

13

23 or 24, I was addicted to cocaine, heroin, and uppers and downers. I used one or all of

14

these drugs every day,” and notes that he first used hard drugs in La Mesa prison in Tijuana.

15

(Id. at 6-7.) Petitioner lived a “double life” as a teenager and in his twenties due to his drug

16

use, including multiple periods where he quit and then started using again. (Id. at 7-8.)

17

Petitioner also states that: “My trial attorneys knew nothing about my history of drug

18

addiction,” and because he went through withdrawal at the outset of the case, “[i]t took me

19

about three months until I was really able to concentrate on the proceedings at hand. My

20

attorneys had no idea I was suffering so much.” (Id. at 9.)

21

Several of Petitioner’s family members also mention that his second wife’s family

22

was known to be heavily involved in drug trafficking. (See e.g. Lodgment No. 114, Ex.

23

79 at 28, Ex. 83 at 4.) Petitioner’s brother Adolfo notes that: “When Jaime married his

24

second wife Mayela Alvarado, Jaime lived in town with her and her family. Mayela’s

25

father and brothers had a reputation for being involved in drug dealing so I am sure the

26

Alvarado’s [sic] were another bad influence on Jaime.” (Id., Ex. 112 at 3.) Maribel Lopez,

27

who was Petitioner’s girlfriend at the time of the murder, states that Petitioner’s wife

28

Mayela “was stalking me and terrorizing me” prior to trial, and states that she stopped
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visiting Petitioner in jail because “Mayela was making my life too difficult.” (Id., Ex. 64

2

at 4-5.)

3

Petitioner also experienced several incidents of torture, including multiple instances

4

that occurred during incarceration in Mexican jails and institutions. Petitioner states that

5

he was first kidnapped and tortured at age 17 by coworkers who thought he stole, but that

6

“[a]fter this, my aggressors were always federal police.” (Lodgment No. 115, Ex. 84A at

7

9-10.) Petitioner estimates that between 1977 and 1992, he was tortured by police about

8

ten separate times, mostly during interrogations sessions, explaining that torture by the

9

police was “always part psychological and part physical,” and that he later experienced

10

“paranoia and fear” and “flashbacks.” (Id. at 10-11.) Petitioner states that: “Most of the

11

times I was beaten and tortured by federal police occurred during police detentions. The

12

main motive of police torture was to get money or information out of me.” (Id. at 12.) He

13

also explains that the torture was primarily related to drug crimes, in that: “I was never

14

tortured or beaten up when I was detained outside prison and didn’t have drugs in my

15

possession.” (Id. at 12-13.) He details various methods of torture he experienced,

16

including electrocution, burning, beating, vinegar in his nose, and being thrown in the

17

ocean in a sack, among others, and noted that he sometimes blacked out from the torture.

18

(Id. at 11-12, 14.) Leticia, who visited Petitioner every few weeks during his incarceration

19

in Mexico, states that he “was severely beaten and tortured before he was arrested and sent

20

to a Mexican jail.” (Lodgment No. 114, Ex. 79 at 28.) She states that: “They did horrible

21

things to Jaime such as pouring carbonated water into his nose and they beat him so badly,

22

they broke his ribs.” (Id.) Petitioner’s brother Eusebio recalls that: “About 20 years ago,

23

I saw Jaime in a prison or jail clinic in Ensenada. He had been recently arrested. The

24

police had severely beaten him up and tortured [sic] and he was still in their custody. Police

25

commonly beat up and torture men they arrest, but Jaime got it worse than normal because

26

he needed to be hospitalized. It seemed like Jaime had been beaten up about a week earlier

27

and he was in such bad shape that it seemed like he needed about three more weeks to fully

28

recover. [¶] Jaime was bruised and swollen all over his face and body. Everything hurt and
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he was unable to talk. He just moaned in pain. He was lying in a bed to which he was

2

handcuffed and there was a police officer watching over him. We weren’t able to have a

3

conversation because he was too badly beaten up. But I was able to see that Jaime was

4

furious at the police. I was pretty worried about Jaime.” (Id., Ex. 82 at 4.) Ricardo recounts

5

that: “I was probably about 27 years old when I visited Jaime in jail in Ensenada. Jaime

6

told me he had been beaten up by police but he didn’t give me a lot of details. I could see

7

that his back and his bottom were all bruised and he had cigarette burns on his back.” (Id.,

8

Ex. 111 at 4.) Social anthropologist Victor Clark Alfaro, who has written and published

9

case studies on the use of torture in Baja California, and who consulted with the defense

10

before trial but was not called to testify, states that: “I have reviewed Jaime Hoyos’s

11

account of how he was tortured, and when. Of course, I was not there, and cannot provide

12

direct testimony as to its veracity. However, I can say with confidence that not only is

13

what he says plausible, but it is far more likely than not to be true, because that was

14

precisely the way those types of cases were investigated at the times and places of his

15

arrests.” (Lodgment No. 115, Ex. 86A at 4.)

16

Mary Antonia Brenner, who has lived in a cell in the La Mesa Prison as a religious

17

worker since 1977, knew Petitioner during his incarceration. (Lodgment No. 113, Ex. 90

18

at 1-4.) Brenner states that Petitioner was “courteous” and “shy” and was not violent like

19

some of the men in the institution. (Id. at 4.) She states that Petitioner carried a photo of

20

his newborn baby, and found Petitioner “likeable, and even boyish, as he seemed younger

21

than his years.” (Id.) Brenner states that Petitioner was “in no sense a shot-caller” in the

22

prison, but instead “was happy to shine the shoes, so to speak of the head honchos in the

23

drug-trafficking world. He would have been honor-bound to follow their directives, but he

24

did not have either the type of character or the ability to initiate something malicious and

25

complicated when I knew him.” (Id.) Brenner states that had defense counsel contacted

26

her, she would have appeared in court on Petitioner’s behalf. (Id. at 4-5.)

27

Dr. Jiminez, the Hoyos family physician, who first met Petitioner as a teenager, also

28

noted several behavioral matters, and states that Petitioner “had some kind of internal
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struggle,” and would swing between expressing affection and fighting and yelling, or

2

would get along with people, shortly followed by screaming and saying ugly things to his

3

family. (Lodgment No. 115, Ex. 91A at 1.) He opines that Petitioner suffered from

4

depression and “exhibited symptoms of bipolar disorder.” (Id. at 4.) He states that: “This

5

[post-conviction proceeding] is the first time I have talked to the defense for Mr. Hoyos. I

6

would have been willing to speak for Jaime Hoyos’ defense at the time of his trial and his

7

family would have contacted me.” (Id. at 4.)

8

Records reflect that defense counsel contacted clinical psychologist Thomas

9

MacSpeiden, Ph.D., to evaluate Petitioner and submit a report. (Lodgment No. 113, Ex.

10

93.) Dr. MacSpeiden related background and offense information, including Petitioner’s

11

self-report that his medical history was “uneventful” aside from the accident resulting in

12

the amputation of his thumb and that he misused heroin in his early twenties on only a few

13

occasions. (Id. at 4, 7.) Dr. MacSpeiden administered a number of tests, including the

14

WAIS-R, Rorschach, TAT, Spanish versions of the MCMI-II and MMPI-2, and the Bender

15

Visual Motor Gestalt Test. (Id. at 15.) Dr. MacSpeiden concluded that Petitioner’s

16

intellectual function was in the “low average range,” and that “[t]he structure of Mr. Hoyos’

17

personality is nonpsychotic.” (Id. at 22.) Dr. MacSpeiden’s analysis discussed the crimes

18

themselves at length as well as offering his opinions about Petitioner’s participation.

19

Indeed, Dr. MacSpeiden opined that based on the results of his psychological evaluation,

20

it “appears probable” that Petitioner accompanied his brother-in-law to the victims’ home

21

that evening to collect a debt, carried a weapon for intimidation, and that his brother-in-

22

law was likely the first, and possibly the only, one to fire a weapon. (Id. at 23.) He stated

23

that Petitioner was reported to be tearful over the injury to J. Magoon, which “suggests a

24

degree of empathy -- or at least sympathy -- that would make killing another person

25

difficult,” but also stated that Petitioner’s “need to appear macho would preclude his

26

stopping another person from performing such an act.” (Id.) Dr. MacSpeiden’s diagnostic

27

impressions included: “Opioid Dependence, in Remission” as well as “Dysthymia, Primary

28

Type, Early Onset,” and “Personality Disorder Not Otherwise Specified [with dependent
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and self-defeating traits].” (Id. at 24.) As discussed below, the defense did not call him to

2

testify at either the guilt or penalty phases of trial.

3

During post-conviction proceedings, counsel retained clinical psychologist Ricardo

4

Weinstein, Ph.D, who specializes in neuropsychology, to evaluate Petitioner’s cognitive

5

functioning. After an evaluation, including numerous tests not administered by Dr.

6

MacSpeiden, and reviewing the prior evaluation, Dr. Weinstein concluded that “Mr. Hoyos

7

is functioning at the mental retardation level of intelligence.” (Id., Ex. 99 at 3.) Dr.

8

Weinstein states that: “In reviewing Dr. MacSpeiden’s report it became evident that he

9

failed to identify the very significant brain dysfunction that Mr. Hoyos has suffered over

10

the course of his childhood, adolescence and adulthood.” (Id.) Dr. Weinstein notes

11

Petitioner’s “history of multiple brain insults dating back to his childhood” in addition to

12

“many instances of loss of consciousness,” and “a long history of severe drug addiction.”

13

(Id.) Dr. Weinstein faults Dr. MacSpeiden both for failing to note that history and for using

14

an interpreter to assist in conducting the evaluation rather than having tests conducted by

15

a Spanish-speaking neuropsychologist. (Id. at 3-4.) Dr. Weinstein states that: “It is my

16

opinion with a high degree of scientific certainty that Mr. Hoyos suffers from significant

17

brain dysfunction and possibly from mental retardation. These are definitively mitigation

18

factors in a death penalty sentencing trial.” (Id. at 4.)

19

C.

Discussion

20

Under Strickland, “a defendant must show both deficient performance and prejudice

21

in order to prove that he has received ineffective assistance of counsel.” Mirzayance, 556

22

U.S. at 122, citing Strickland, 466 U.S. at 687. “Surmounting Strickland’s high bar is never

23

an easy task.” Padilla, 559 U.S. at 371. Because the Court is reviewing this claim under

24

section 2254(d), the “state court must be granted a deference and latitude that are not in

25

operation when the case involves review under the Strickland standard itself.” Richter,

26

562 U.S. at 101. “When § 2254(d) applies, the question is not whether counsel’s actions

27

were reasonable. The question is whether there is any reasonable argument that counsel

28

satisfied Strickland’s deferential standard.” Id. at 105.
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Emphasizing the importance of discovering and presenting a penalty phase jury with

2

all of the “relevant” and “available” evidence in mitigation, the Ninth Circuit has stated

3

that “‘trial counsel must inquire into a defendant’s social background, family abuse, mental

4

impairment, physical health history, and substance abuse history; obtain and examine

5

mental and physical health records, school records, and criminal records; consult with

6

appropriate medical experts; and pursue relevant leads.’” Wharton v. Chappell, 765 F.3d

7

953, 970 (9th Cir. 2014), quoting Hamilton v. Ayers, 583 F.3d 1100, 1113 (9th Cir. 2009),

8

Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999). In Strickland, the Supreme Court

9

instructed that “counsel has a duty to make reasonable investigations or to make a

10

reasonable decision that makes particular investigations unnecessary.

11

ineffectiveness case, a particular decision not to investigate must be directly assessed for

12

reasonableness in all the circumstances, applying a heavy measure of deference to

13

counsel’s judgments.” Strickland, 466 U.S. at 691; see also Wiggins, 539 U.S. at 523 (“In

14

assessing counsel’s investigation, we must conduct an objective review of their

15

performance, measured for ‘reasonableness under prevailing professional norms,’ which

16

includes a context-dependent consideration of the challenged conduct as seen ‘from

17

counsel’s perspective at the time.’”), quoting Strickland, 466 U.S. at 688-89 (internal

18

citation omitted).

In any

19

Again, Petitioner faults counsel for failing to investigate and present evidence that

20

Petitioner was tortured by the Mexican police and in jail, failing to present evidence of

21

Petitioner’s prior incarcerations, and the lack of violence on Petitioner’s part, failing to

22

investigate and present evidence, such as a mental health expert, about Petitioner’s struggle

23

with drug abuse, and failing to investigate and present testimony by Petitioner’s family

24

members about his difficult childhood, including that he had been subjected to physical

25

discipline and potentially struggled with childhood disabilities.

26

After reviewing the record, it is apparent that Petitioner’s argument is premised more

27

upon a disagreement with the penalty phase strategy defense counsel pursued than on

28

whether the defense investigation and presentation was itself deficient or unreasonable.
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While trial counsel admits conducting a “less than complete” investigation into Petitioner’s

2

background, the record shows that the defense made numerous efforts to gather information

3

about Petitioner’s family history, mental health, and criminal history, including that he had

4

been subjected to torture, prior to making a reasonable, tactical choice to employ a penalty

5

phase strategy that focused on sympathy and avoided character testimony in order to keep

6

evidence of Petitioner’s prior criminal activity from the jury. See Strickland, 466 U.S. at

7

690-91 (“[S]trategic choices made after thorough investigation of law and facts relevant to

8

plausible options are virtually unchallengeable; and strategic choices made after less than

9

complete investigation are reasonable precisely to the extent that reasonable professional

10

judgments support the limitations on investigation.”) That Petitioner now posits a different

11

strategy may have been more successful does not mean that the defense presented at trial

12

fell below constitutional guarantees. See Raley, 470 F.3d at 799 (“A disagreement with

13

counsel’s tactical decisions does not provide the basis for declaring that the representation

14

was constitutionally deficient.”), citing Mayo, 646 F.2d at 375.

15

Investigator Alicia Vicars, who was part of the trial defense team, characterizes the

16

penalty phase investigation as “very thin,” as well as “embarrassing and deficient,” and

17

states that it “was the sideshow in comparison to the guilt phase.” (Lodgment No. 110, Ex.

18

49 at 1-2.) Meanwhile, attorney Herrera states that the defense “did nothing to develop

19

Mr. Hoyos’ life story, and came to believe that we had nothing to present to the jury by

20

way of mitigating evidence.” (Id., Ex. 44 at 7-8.) Yet, available records show that

21

members of the defense team, including both investigators and attorneys, repeatedly visited

22

and interviewed Petitioner’s family members and friends in Tecate and elsewhere, in an

23

effort to obtain information on Petitioner’s background and upbringing. Herrera states that:

24

“I can not [sic] remember any efforts to gather school records or other documents about

25

Mr. Hoyos. I do not believe we ever did a social history about Mr. Hoyos, or any history

26

of his drug addictions, or any record of head injuries in childhood or adolescence.” (Id. at

27

6.) Vicars states that she attempted to go to Petitioner’s school, “but it was not open.” (Id.,

28

Ex. 49 at 2.) Moreover, contrary to the detailed information now provided by these same
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1

family members, the information Petitioner’s friends and family members provided prior

2

to trial failed to mention that Petitioner had any history of head injuries, of any significant

3

drug use or abuse, that he suffered any physical abuse, nor offered any indication that

4

Petitioner may have had childhood disabilities. Nor has Petitioner presented the Court with

5

any documentary evidence, such as medical reports or hospital records, concerning such

6

matters.

7

Public defender travel records show that investigators made numerous trips to Tecate

8

in March, May, July and September 1993 to visit and interview Petitioner’s family

9

members in preparing for the penalty phase proceedings. (See Lodgment No. 113, Ex. 98.)

10

Investigator Vicars specifically recalls traveling to Tecate with another investigator to visit

11

and interview Petitioner’s family members, and states that they “didn’t find extreme

12

poverty, sexual or physical abuse. The family was intact. They grew up in a beautiful

13

location near Rancho la Puerta. At the time, it seemed to me he had a childhood any of us

14

would have loved to have had. We brought back what we had, and the lawyers basically

15

gave up, saying that we didn’t have much.” (Lodgment No. 110, Ex. 49 at 2.) Case

16

coordinator Bunny Amendola agrees, noting: “There was nothing usable for the penalty

17

phase in his background either. The family seemed fine,” and that: “This case only had

18

drugs; Jaime seemed to just get involved in drugs.” (Id., Ex. 48 at 4.) Trial counsel

19

similarly states that “[o]ur efforts to find evidence of dire poverty, sex abuse, or serious

20

physical abuse in Mr. Hoyos’s past, led us nowhere.” (Id., Ex. 44 at 7.)

21

Petitioner’s sister Maria Elena, when interviewed in May 1993, told investigators

22

that Petitioner had many friends who visited the ranch and loved animals; she stated that

23

they had a “normal family growing up” and that the “family was always close.” (Lodgment

24

No. 113, Ex. 95 at 1.) She said that her family “did not comment too much about Jaime’s

25

problems” and that “she never saw Jaime being involved in drug use and said he never had

26

an alcohol problem.” (Id. at 2.) Maria Elena told investigators that her brother worked at

27

the family ranch after his marriage, was loving towards children and would not hurt a child.

28

(Id.) An interview with Petitioner’s brother Eusebio, conducted outside the South Bay jail
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1

in January 1993, was slightly more detailed. (Id., Ex. 96.) Eusebio stated that their father

2

“was a strong disciplinarian and would scold them or spank them if they did not behave,”

3

and Petitioner “was always a little more mischievous and active” than the other siblings.

4

(Id. at 1.) Eusebio stated that their father drank when they were young, but “was never an

5

alcoholic,” and like Maria Elena, Eusebio stated that Petitioner liked animals, including

6

horses and dogs. (Id. at 1-2.) Eusebio told the investigators that “the first time Jaime got

7

into difficulties he was still very young. He had heard it was something over drugs and

8

says that maybe his parents discussed this problem with his older brothers.” (Id. at 2.)

9

Eusebio recalled finding out about Petitioner’s drug troubles when Petitioner was detained

10

in Tijuana, and said that “even though there was not a lot of money to give to Jaime he

11

never saw that he had a problem with drugs or alcohol.” (Id.) Eusebio also stated that

12

Petitioner was loving with his children, and he could not believe Petitioner could hurt a

13

child. (Id.) Augustin Eiraut, a friend of the Hoyos family who was interviewed in May

14

1993 in Tecate, stated that Petitioner worked with horses when he was younger and was

15

always willing to help out. (Id., Ex. 97.)

16

Vicars recalls that the defense investigators also spoke with Petitioner’s father, but

17

did not speak with Petitioner’s mother, despite the fact that she was home at the time of

18

their visit. (Lodgment No. 110, Ex. 49 at 2.) Vicars also recalls speaking to Eusebio and

19

another brother home during that visit, adding that: “I also recall seeing the sister

20

somewhere a second time other than the day we interviewed her.” (Id.) Attorney Herrera

21

recalls visiting the family’s ranch in Tecate with co-counsel once, visiting Petitioner’s

22

home once, and visiting the ranch on another occasion. (Id., Ex. 44 at 6.) Petitioner’s

23

mother Leticia recalls the visits by counsel and consular officials: “I remember Mexican

24

consular officials spoke with my husband and I during Jaime’s trial investigation and I

25

remember than Jaime’s trial attorneys came to Tecate two times, each visit lasting about

26

three hours. My husband was scared and distrustful of the American legal system because

27

it was so unfamiliar to him.” (Lodgment No. 114, Ex. 79 at 34.) Two of Petitioner’s

28

siblings state that they would have provided additional information had they been asked.
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1

Petitioner’s brother Eusebio states: “I remember Jaime’s trial attorneys and investigators

2

only visited Tecate a couple of times and they didn’t stay for that long. If they had stayed

3

longer and asked more questions I would have given them more information.” (Id., Ex. 82

4

at 4.) Maria Elena states that: “Jaime’s trial defense team only came to Tecate two times

5

staying a few hours on each visit. I don’t have any idea what information might have been

6

useful, but I would have given a lot more information had they really wanted to talk to me.”

7

(Id., Ex. 83 at 5.) Petitioner himself acknowledges that he “did not fully open up to his

8

attorneys,” explaining that he did not fully understand the proceedings or trust his counsel

9

due to the difficulties in understanding the differences between the Mexican and American

10

systems, the fact that he did not speak English and he was not provided with translations

11

of some documents, and the fact that he felt his attorneys did not visit him sufficiently.

12

(Lodgment No. 115, Ex. 84A at 14-15.)

13

The record also reflects that the defense retained an expert to evaluate Petitioner’s

14

mental health. Attorney Herrera, who asked psychologist Dr. MacSpeiden to interview

15

and evaluate Petitioner, states that: “I did not know of any head injuries or loss of

16

consciousness by Jaime as a child. I did not bring to Dr. McSpeiden’s [sic] attention the

17

fact that Mr. Hoyos was tortured, or any issues related to drug use or addiction, and I did

18

not direct his attention to any of those things. The materials we provided him, so far as I

19

can now recall, related only to the crimes for which Mr. Hoyos was charged.” (Lodgment

20

No. 110, Ex. 44 at 7.) Dr. MacSpeiden conducted an extensive interview and evaluation

21

of Petitioner, meeting with him on five separate occasions between January and April 1993,

22

conducting numerous psychological tests and compiling extensive background and offense

23

information, resulting in a 24 page psychological evaluation. (See Lodgment No. 113, Ex.

24

93.) A review of the background information reveals that, similar to Petitioner’s family

25

members, Petitioner downplayed his drug use, stating that “he had misused only heroin” in

26

his early twenties and “no more than ‘several times.’” (Id. at 7.) Petitioner stated that his

27

father “was okay,” and noted that his father was more strict than his mother, as he would

28

punish the children and “[s]ometimes he’d spank us.” (Id. at 3.) Petitioner failed to
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1

mention any history of head injuries or loss of consciousness to the psychologist, as

2

Petitioner “initially said he had suffered no unusual illnesses, accidents or physical

3

abnormalities, but then pointed out he is absent the thumb on his right hand.” (Id. at 4.)

4

After detailing the events leading up to the amputation, the report stated that “[o]therwise

5

he thought his medical history unremarkable.”

6

MacSpeiden that his adolescent and young adult years were rather unremarkable, that he

7

got “regular” grades in school, was suspended on a few occasions for pranks but did not

8

get in trouble with the law, and was truant on occasion. (Id. at 4-5.) He told the

9

psychologist of his working life, family life and children, and legal troubles as an adult,

10

stating that his incarceration at La Mesa prison was “uneventful.” (Id. at 5.) With respect

11

to the testing conducted, Dr. MacSpeiden reported that: “This client’s MMPI-2 clinical

12

profile is within normal limits and no clinical diagnosis is provided.” (Id. at 21.) The

13

psychologist noted that the testing raised the possibility that Petitioner suffered from

14

addictive problems, and he recommended that: “Further evaluation of alcohol or drug usage

15

is recommended.” (Id.)

16

pressing need for psychological treatment, and restrictive administrative management will

17

probably not be necessary for him.”

18

recollections are consistent, as she states that: “Dr. MacSpeiden ran psychological tests on

19

Jaime for us. He was an expert that the Public Defender’s office frequently used.

20

MacSpeiden said that Jaime tested more psychologically normal than any person he had

21

dealt with. He was startled by how normal Jaime’s psychological results were. It seemed

22

strange to us too.” (Lodgment No. 110, Ex. 48 at 4.) Herrera states that after receiving the

23

psychological evaluation, he declined to order any additional testing, explaining that: “My

24

thinking then was focused entirely on whether or not Mr. Hoyos suffered from

25

psychological problems. When my own belief in his normality in this area was confirmed

26

by Dr. MacSpeiden, I made no further consideration of using any expert to examine Mr.

27

Hoyos’s mental functioning.”

28

disbursements to a psychiatrist in addition to those to the psychologist, but the record does

(Id.)

Petitioner similarly told Dr.

Dr. MacSpeiden also indicated that: “There appears to be no
(Id.)

Case coordinator Bunny Amendola’s

(Id., Ex. 44 at 7.)

Public defender records show

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1

not provide details about the reason for the former expenditure. (Lodgment No. 113, Ex.

2

98.)

3

Herrera also states that “Mr. Hoyos informed me that he had been tortured, but he

4

said no more, and I did not ask him to provide me any details.” (Lodgment No. 110, Ex.

5

44 at 7.) Yet, the record reflects that even if counsel did not question Petitioner, the defense

6

did investigate the matter, as counsel obtained court records on Petitioner’s prior

7

convictions and criminal activities and consulted Professor Alfaro, a social anthropologist

8

who studied and wrote about the use of torture in Baja Mexico, stating: “We were prepared

9

to use him as an expert witness if the judge was inclined to allow the priors into evidence

10

as aggravating factors during the penalty phase of Mr. Hoyos’ trial.” (Id. at 4.) Counsel

11

states that the conviction records the defense obtained “made it clear that Mr. Hoyos’s

12

convictions were the result of coercion, and probably torture.” (Id.) As mentioned above,

13

the trial record reflects that the defense’s penalty phase presentation was shaped by the fact

14

that the trial court disallowed introduction of Petitioner’s prior convictions as aggravation

15

“on grounds that they were unreliable and coerced confessions.” (See id.; see also RT

16

4511-13.) Herrera recalls that “the court did allow the prosecutor to ask ‘have you heard’-

17

type questions to any character witness we might present, to see if they knew about these

18

prior convictions, or had heard about the actions Mr. Hoyos was alleged to have done.”

19

(Lodgment No. 110, Ex. 44 at 4.) Herrera states that the defense investigation did not

20

uncover significant evidence in mitigation, and that: “Therefore, we chose to avoid any

21

kind of character evidence or expert testimony, in order to completely exclude any

22

questioning of witnesses by the prosecutor along the lines of whether or not they knew

23

about the actions Mr. Hoyos had done in order to have been convicted of a felony in

24

Mexico.” (Id. at 8; see also RT 4511-13.) Professor Alfaro’s recollection is consistent

25

with that reflected in the trial record, as he indicates that: “I was contacted in 1994 by Mr.

26

Hoyos’ trial attorneys, as asked to testify on his behalf about the routine use of torture to

27

obtain confessions of crimes. I agreed to do so, and would have testified then to what I

28

have said in this declaration. However, trial counsel told me that the judge had agreed not
216
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1

to allow the presentation of Mr. Hoyos [sic] prior convictions and that I would not be

2

necessary.” (Lodgment No. 115, Ex. 86A at 4.)

3

Under Strickland, a reviewing court must give deference to trial counsel’s decisions

4

and refrain from concluding that trial counsel was ineffective based solely on a

5

disagreement with those decisions. See Strickland, 466 U.S. at 689 (“It is all too tempting

6

for a defendant to second-guess counsel’s assistance after conviction or adverse sentence,

7

and it is all too easy for a court, examining counsel’s defense after it has proved

8

unsuccessful, to conclude that a particular act or omission was unreasonable.”) However,

9

because the California Supreme Court rejected this claim on the merits, this Court’s review

10

must afford deference not only to trial counsel’s decisions pursuant to Strickland, but to

11

the state court decision as well. See Richter, 562 U.S. at 105 (“When § 2254(d) applies,

12

the question is not whether counsel’s actions were reasonable. The question is whether

13

there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”)

14

Here, there is a reasonable argument that counsel acted in a constitutionally

15

acceptable manner in the investigation and presentation of the penalty phase case, despite

16

the omissions noted above. The record reflects that members of the defense team,

17

including attorneys and investigators, traveled to Tecate and other areas on numerous

18

occasions to investigate Petitioner’s family history, including speaking to a number of

19

Petitioner’s family members and friends. Counsel also retained a mental health expert to

20

interview and evaluate Petitioner’s psychological makeup, the results of which were

21

generally normal. Counsel investigated the torture angle with respect to Petitioner’s prior

22

criminal activity and convictions, including obtaining his criminal records and consulting

23

with a relevant expert, and in doing so, succeeded in excluding their introduction from the

24

penalty phase proceedings. It is also apparent from the record that, in light of the

25

information obtained during the defense investigation into Petitioner’s background, trial

26

counsel made a strategic decision to focus on sympathy and avoid introducing character

27

testimony to keep evidence of the prior criminal activity from the jury. (See RT 4511-13;

28

Lodgment No. 110, Ex. 44 at 7-8.)
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1

The California Supreme Court could have reasonably concluded that trial counsel’s

2

strategic decision supported the limits on the defense investigation, including the decision

3

not to present mental health testimony experts or offer character testimony from family

4

members in order to avoid jeopardizing the defense’s success in excluding mention of

5

Petitioner’s prior criminal activities. See Richter, 562 U.S. at 102 (“Under § 2254(d), a

6

habeas court must determine what arguments or theories supported or, as here, could have

7

supported, the state court’s decision; and then it must ask whether it is possible fairminded

8

jurists could disagree that those arguments or theories are inconsistent with the holding in

9

a prior decision of this Court.”) “There are countless ways to provide effective assistance

10

in any given case. Even the best criminal defense attorneys would not defend a particular

11

client in the same way.” Strickland, 466 U.S. at 689. Petitioner fails to show that the

12

defense investigation, and the decisions of trial counsel reflected in the record, fell below

13

constitutional guarantees.

14

The California Supreme Court could have also reasonably rejected this contention

15

based on Petitioner’s failure to demonstrate prejudice under Strickland. See Mirzayance,

16

556 U.S. at 122 (“[A] defendant must show both deficient performance and prejudice in

17

order to prove that he has received ineffective assistance of counsel.”), citing Strickland,

18

466 U.S. at 687. As mentioned above, the Ninth Circuit instructs that: “In a case in which

19

counsel’s error was a failure adequately to investigate, demonstrating Strickland prejudice

20

requires showing both a reasonable probability that counsel would have made a different

21

decision had he investigated, and a reasonable probability that the different decision would

22

have altered the outcome.” Bemore, 788 F.3d at 1169, citing Wiggins, 539 U.S. at 535-36.

23

Herrera now states that: “I believe now that we should have investigated further than we

24

did, in large part because we did not quickly find evidence of what we thought to be the

25

only mitigating factors. I understand that just because Mr. Hoyos did not grow up in a

26

typically impoverished environment, and was not badly abused as a child, did not mean

27

that he was not acting under compulsion and with significant limitations, and was not an

28

individual.” (Lodgment No. 110, Ex. 44 at 9.) Herrera also appears to leave open the
218
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1

possibility that the defense strategy could have differed depending on what could have been

2

developed from a more complete investigation, and states that: “Mr. Hoyos’s prior

3

convictions that led to prison terms in Mexico (drug transporting, a driver for a robbery of

4

a telegraph office) were serious, but not remotely as serious as the commitment offense.”

5

(Id. at 8.)

6

Yet, Petitioner ultimately fails to establish a reasonable probability that employing

7

the strategy advanced here would have led to different penalty phase outcome, given the

8

strength of the aggravating evidence, particularly the circumstances of the crime. See

9

Wiggins, 539 U.S. at 534 (“In assessing prejudice, we reweigh the evidence in aggravation

10

against the totality of available mitigating evidence.”); see also Williams, 529 U.S. at 397-

11

98, Wong, 558 U.S. at 26 (“[T]he reviewing court must consider all the evidence-the good

12

and the bad-when evaluating prejudice.”), citing Strickland, 466 U.S. at 695-96.

13

First, trial counsel only notes two prior crimes, while the trial prosecutor voiced an

14

intention to ask about five separate instances of previous criminal activity, spanning well

15

over a decade, had the defense introduced character testimony. (See RT 4511-18.) While

16

testimony about Petitioner’s childhood and upbringing, including evidence about his strict

17

and physically abusive father, Petitioner’s history of drug addiction and that he suffered

18

multiple instances of torture at the hands of legal and correctional authorities in Mexico

19

would have certainly been mitigating, the impact of such evidence would have been

20

tempered by the prosecutor’s stated intention to ask any character witnesses if they had

21

heard about Petitioner’s prior criminal activity. Petitioner’s lengthy and varied criminal

22

history, while not as steeped in violence as the circumstances of the instant offenses, would

23

have at a minimum diluted the weight of such mitigating evidence, particularly considering

24

that the prior crimes evinced Petitioner’s long-standing involvement in drug trafficking

25

activities, and the murders at issue in the instant case were clearly drug-related.

26

While Petitioner could have introduced family members’ anecdotal accounts of his

27

prior head injuries, he fails to offer evidence showing how such injuries, on their own,

28

constitute mitigating evidence. The psychologist who evaluated Petitioner prior to trial
219
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1

asked about previous injuries and Petitioner failed to disclose any such history, nor has

2

Petitioner offered any indication how the expert’s evaluation or conclusions may have

3

differed had such injuries been disclosed. While Dr. Weinstein, who evaluated Petitioner

4

during post-conviction proceedings, states that Petitioner may be intellectual disabled, he

5

refrains from actually rendering such a diagnosis without further investigation. In any

6

event, any failures by Dr. MacSpeiden cannot be attributed to trial counsel. See Fairbank

7

v. Ayers, 650 F.3d 1243, 1252 (9th Cir. 2011) (“An expert’s failure to diagnose a mental

8

condition does not constitute ineffective assistance of counsel, and [a petitioner] has no

9

constitutional guarantee of effective assistance of experts.”), quoting Earp v. Cullen, 623

10

F.3d 1065, 1077 (9th Cir. 2010) (emphasis and bracket in original). Petitioner also asserts

11

that trial counsel should have procured a mental health expert to investigate the reasons for

12

his drug use and contends that counsel also failed to present the jury with evidence that

13

Petitioner’s childhood behavior indicated that he suffered from learning disabilities.

14

However, Petitioner only speculates that an expert would have concluded Petitioner

15

suffered from learning disabilities, or that exploring his history of drug use would have

16

provided additional mental health mitigating evidence. In addition, Petitioner admits that

17

he withheld evidence of his drug use and addiction from counsel. Without declarations or

18

other evidence outlining the expert testimony counsel allegedly should have presented,

19

Petitioner cannot establish prejudice. See Grisby, 130 F.3d at 373 (“Speculation about

20

what an expert could have said is not enough to establish prejudice.”)

21

Thus, even had trial counsel pursued the strategy Petitioner now espouses, the Court

22

remains unpersuaded that the additional evidence in mitigation would have overcome the

23

substantial aggravating evidence. Again, the introduction of the mitigating evidence would

24

have allowed repeated reference to Petitioner’s prior criminal activity, which, while not as

25

serious or grave as the crimes at issue at trial, showed that Petitioner had a substantial

26

criminal history that spanned over a decade. Moreover, wholly apart from this criminal

27

history, the circumstances of the crimes against the Magoon family were extremely brutal

28

and amounted to significant evidence in aggravation, as Mary Magoon suffered numerous
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1

blunt force injuries to her head and back prior to her death, as well as several gunshot

2

wounds, including one to the back of the head. Her three-year-old son was shot in the head

3

and was likely near his mother at the time of his wounding and her death. Her husband

4

was also shot and killed. Two individuals killed and a child severely wounded, for cash

5

and drugs. Evidence of Petitioner’s childhood, drug abuse and the other evidence now

6

offered in mitigation does not offset the powerful evidence in aggravation.

7

Therefore, to the extent the California Supreme Court’s rejection of Petitioner’s

8

claim of ineffective assistance of trial counsel at the penalty phase was due to a failure to

9

demonstrate prejudice, Petitioner fails to show that such a resolution was either contrary

10

to, or an unreasonable application of, Strickland or that it was based on an unreasonable

11

determination of the facts. See Richter, 562 U.S. at 112 (“The likelihood of a different

12

result must be substantial, not just conceivable.”) Claim 23 does not merit habeas relief.

13

Given Petitioner’s failure to satisfy section 2254, an evidentiary hearing is not

14

warranted on Claim 23. See Sully, 725 F.3d at 1075 (“[A]n evidentiary hearing is pointless

15

once the district court has determined that § 2254(d) precludes habeas relief.”)

16

E.

Systemic Claims

17

1.

18

Petitioner contends that “[t]he California capital sentencing statute contains

19

numerous invalidities, including the over-breadth of Penal Code section 190.2; the

20

pervasive arbitrariness and capriciousness in the imposition of death sentences; and in the

21

absence of adequate safeguards to ensure any death sentence is reliably and fairly imposed

22

in conformity with the demands of the Eighth Amendment,” and “is equally incompatible

23

with international law and basic standards of decency.” (SAP at 167.) Petitioner does not

24

outline or detail these challenges in the SAP itself, but instead notes that “[t]he deficiencies

25

in the California statute are set forth in detail in Appellant’s Opening Brief, Argument XV.”

26

(Id.)

27
28

Claim 24

Petitioner presented this claim to the California Supreme Court on direct appeal,
which the state court rejected in a reasoned decision as follows:
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1
2

Defendant attacks the constitutionality of California’s death penalty
statute on numerous grounds. We reaffirm the decisions that have rejected
similar claims and decline to reconsider such authorities, as follows:

3
4
5
6
7
8
9
10
11
12
13
14

That certain noncapital sentencing proceedings may require jury
unanimity or proof beyond a reasonable doubt does not mean the death penalty
statute violates the equal protection clause of the Fourteenth Amendment.
(People v. Rogers (2006) 39 Cal.4th 826, 893, 48 Cal.Rptr.3d 1, 141 P.3d 135
(Rogers); Blair, supra, 36 Cal.4th at p. 754, 31 Cal.Rptr.3d 485, 115 P.3d
1145; People v. Davis (2005) 36 Cal.4th 510, 571–572, 31 Cal.Rptr.3d 96,
115 P.3d 417.) “The death penalty law is not unconstitutional for failing to
impose a burden of proof—whether beyond a reasonable doubt or by a
preponderance of the evidence—as to the existence of aggravating
circumstances, the greater weight of aggravating circumstances over
mitigating circumstances, or the appropriateness of a death sentence.” (Lewis
and Oliver, supra, 39 Cal.4th at p. 1066, 47 Cal.Rptr.3d 467, 140 P.3d 775,
citing People v. Brown, (2004) 33 Cal.4th 382, 401, 15 Cal.Rptr.3d 624, 93
P.3d 244.) Indeed, the trial court need not and should not instruct the jury as
to any burden of proof or persuasion at the penalty phase. (Rogers, supra, 39
Cal.4th at p. 893, 48 Cal.Rptr.3d 1, 141 P.3d 135; Blair, supra, 36 Cal.4th at
p. 753, 31 Cal.Rptr.3d 485, 115 P.3d 1145.)

15
16
17
18
19
20
21
22
23
24

The Eighth and Fourteenth Amendments do not require that a jury
unanimously find the existence of aggravating factors or that it make written
findings regarding aggravating factors. (Rogers, supra, 39 Cal.4th at p. 893,
48 Cal.Rptr.3d 1, 141 P.3d 135; Blair, supra, 36 Cal.4th at p. 753, 31
Cal.Rptr.3d 485, 115 P.3d 1145.) In addition, the United States Supreme
Court’s recent decisions interpreting the Sixth Amendment’s jury trial
guarantee (United States v. Booker (2005) 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621; Blakely v. Washington (2004) 542 U.S. 961, 125 S.Ct. 21, 159
L.Ed.2d 851; Ring v. Arizona (2002) 536 U.S. 584, 122 S.Ct. 2428, 153
L.Ed.2d 556; Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348,
147 L.Ed.2d 435) have not changed our prior conclusions regarding burden
of proof or jury unanimity at the penalty phase. (Lewis and Oliver, supra, 39
Cal.4th at p. 1066, 47 Cal.Rptr.3d 467, 140 P.3d 775; Rogers, supra, 39
Cal.4th at 893, 48 Cal.Rptr.3d 1, 141 P.3d 135.)

25
26
27
28

Section 190.2—setting out the special circumstances that, if found true,
render a defendant eligible for the death penalty—adequately narrows the
category of death-eligible defendants in conformity with the requirements of
the Eighth and Fourteenth Amendments. (Rogers, supra, 39 Cal.4th at pp.
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09cv0388 L (NLS)

1
2

892-893, 48 Cal.Rptr.3d 1, 141 P.3d 135; Blair, supra, 36 Cal.4th at p. 752,
31 Cal.Rptr.3d 485, 115 P.3d 1145; People v. Barnett (1998) 17 Cal.4th 1044,
1179, 74 Cal.Rptr.2d 121, 954 P.2d 384.)

3
4
5
6

Section 190.3, factor (a)—which permits consideration of the
“circumstances of the crime” as an aggravating factor—is not impermissibly
vague and provides adequate guidance to a jury in sentencing. (People v.
Prieto (2003) 30 Cal.4th 226, 276, 133 Cal.Rptr.2d 18, 66 P.3d 1123 (Prieto);
People v. Lewis (2001) 26 Cal.4th 334, 394, 110 Cal.Rptr.2d 272, 28 P.3d 34.)

7
8
9
10
11
12

There is no requirement under the jury trial guarantee of the Sixth
Amendment, the cruel and unusual punishment clause of the Eighth
Amendment, or the due process or equal protection guarantees of the
Fourteenth Amendment that a jury find the existence of unadjudicated
criminal activity under section 190.3, factor (b), unanimously or beyond a
reasonable doubt. (Rogers, supra, 39 Cal.4th at 894, 48 Cal.Rptr.3d 1, 141
P.3d 135; Blair, supra, 36 Cal.4th at p. 753, 31 Cal.Rptr.3d 485, 115 P.3d
1145.)

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The use of restrictive adjectives—i.e., “extreme” and “substantial”—in
the list of mitigating factors in section 190.3 does not act unconstitutionally
as a barrier to the consideration of mitigation. (People v. Harris (2005) 37
Cal.4th 310, 365, 33 Cal.Rptr.3d 509, 118 P.3d 545; Brown, supra, 33 Cal.4th
at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30 Cal.4th at p. 276,
133 Cal.Rptr.2d 18, 66 P.3d 1123.)
Intercase proportionality review is not required by the due process,
equal protection, fair trial, or cruel and unusual punishment clauses of the
federal Constitution. (Rogers, supra, 39 Cal.4th at p. 894, 48 Cal.Rptr.3d 1,
141 P.3d 135; Blair, supra, 36 Cal.4th at p. 753, 31 Cal.Rptr.3d 485, 115 P.3d
1145.)
Capital punishment per se does not violate the Eighth Amendment’s
proscription against cruel and unusual punishment. (People v. Moon (2005)
37 Cal.4th 1, 47, 32 Cal.Rptr.3d 894, 117 P.3d 591; People v. Staten (2000)
24 cal.4th 434, 462, 101 Cal.Rptr.2d 213, 11 P.3d 968.) We have recently
rejected the argument that we should reconsider our position in light of the
abolition of the death penalty by the nations of Western Europe, and the
United States Supreme Court’s ruling in Atkins v. Virginia (2002) 536 U.S.
304, 122 S.Ct. 2242, 153 L.Ed.2d 335 that the execution of mentally retarded
persons constitutes cruel and unusual punishment. (Moon, supra, 37 Cal.4th
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09cv0388 L (NLS)

1
2

at pp. 47–48, 32 Cal.Rptr.3d 894, 117 P.3d 591.)
Hoyos, 41 Cal. 4th at 925-27 (footnote omitted).

3

A.

Failure to Narrow

4

Petitioner asserts that “California’s death penalty statute does not meaningfully

5

narrow the pool of murderers eligible for the death penalty,” and that the “death penalty is

6

imposed randomly on a small fraction of those who are death-eligible,” in violation of the

7

Eighth and Fourteenth Amendments. (SAP at 167; Lodgment No. 100 at 298.)

8

Petitioner fails to cite to Supreme Court authority supporting his contention that the

9

California capital statute fails to comply with constitutional guarantees in this manner and

10

indeed conceded in the state court that “[t]he issue presented here has not been addressed

11

by the United States Supreme Court. (Id. at 302.) Meanwhile, the Ninth Circuit has on

12

multiple occasions rejected arguments asserting that the California capital statute fails to

13

perform the narrowing function, as follows:

14

With regard to this claim, we reject Karis’ argument that the scheme does not
adequately narrow the class of persons eligible for the death penalty. The
California statute satisfies the narrowing requirement set forth in Zant v.
Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The special
circumstances in California apply to a subclass of defendants convicted of
murder and are not unconstitutionally vague. See id. at 972, 103 S.Ct. 2733.
The selection requirement is also satisfied by an individualized determination
on the basis of the character of the individual and the circumstances of the
crime. See id. California has identified a subclass of defendants deserving of
death and by doing so, it has “narrowed in a meaningful way the category of
defendants upon whom capital punishment may be imposed.” Arave v.
Creech, 507 U.S. 463, 476, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993).

15
16
17
18
19
20
21
22
23

Karis v. Calderon, 283 F.3d 1117, 1141 n. 11 (9th Cir. 2002); see also Mayfield v.

24

Woodford, 270 F.3d 915, 924 (9th Cir. 2001) (en banc) (“A reasonable jurist could not

25

debate, therefore, that the 1978 California statute, which narrowed the class of death-

26

eligible defendants at both the guilt and penalty phases, was constitutional.”)

27

///

28

///
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09cv0388 L (NLS)

1

Given the absence of Supreme Court authority, the Court is unable to conclude that

2

the state court’s rejection of this claim is contrary to, or an unreasonable application of,

3

clearly established federal law.

4

B.

Section 190.3(a)

5

Petitioner contends that Cal. Penal Code section 190.3(a) “has been applied in such

6

a wanton and freakish manner that almost all features of every murder, even features

7

squarely at odds with features deemed supportive of death sentences in other cases, have

8

been characterized as ‘aggravating’ within the statute’s meaning.” (SAP at 167; Lodgment

9

No. 100 at 303.) Specifically, Petitioner argues that the aggravating factor, which allows

10

the jury to consider the circumstances of the crime, “is being relied upon as an aggravating

11

factor in every case, by every prosecutor, without any limitation whatever [sic].” (Id. at

12

310.) Petitioner acknowledges that factor (a) has been upheld by the Supreme Court, yet

13

argues that its application is so arbitrary and contradictory as to violate due process and the

14

Eighth Amendment. (Id. at 305.)

15

As Petitioner recognizes, the Supreme Court has specifically rejected challenges of

16

vagueness with respect to several California capital sentencing factors, including factor (a).

17

See Tuilaepa v. California, 512 U.S. 967, 975-78 (1994). The Tuilaepa Court stated that

18

“vagueness review is quite deferential,” and explained that “a factor is not unconstitutional

19

if it has some ‘common-sense core of meaning . . . that criminal juries should be capable

20

of understanding.’” Tuilaepa, 512 U.S. at 973, quoting Jurek, 428 U.S. at 279 (White, J.,

21

concurring).

22

deferential” and has explicitly upheld the constitutionality of factor (a), Petitioner fails to

23

offer any persuasive argument demonstrating that the state supreme court’s rejection of

24

this claim is either contrary to, or an unreasonable application of, clearly established federal

25

law.

26

///

27

///

28

///

Because the Supreme Court instructs that vagueness review is “quite

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1

C.

Lack of Safeguards

2

Petitioner alleges that the California capital scheme is unconstitutional due to its

3

failure to require a burden of proof and unanimity in finding the existence of aggravating

4

factors, failure to require written findings, failure to require that the jury find that the

5

aggravation outweighs the mitigation beyond a reasonable doubt or a preponderance of the

6

evidence before imposing the death penalty, allowing the introduction of unadjudicated

7

criminal activity as evidence in aggravation, failure to require or allow proportionality

8

review, and the use of terms that act as barriers to the consideration of mitigation. (SAP at

9

167; Lodgment No. 100 at 311-52.)

10

1.

Failure to Require Unanimity

11

First, Petitioner argues that the Supreme Court’s decisions in Apprendi v. New

12

Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002), compel a

13

conclusion that a capital penalty jury must unanimously find factors in aggravation to be

14

true beyond a reasonable doubt, and renders the California capital statute unconstitutional.

15

(SAP at 167; Lodgment No. 100 at 313-14.)

16

In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction,

17

any fact that increases the penalty for a crime beyond the prescribed statutory maximum

18

must be submitted to a jury, and proved beyond a reasonable doubt.” Id., 530 U.S. at 490.

19

“Ring altered the range of permissible methods for determining whether a defendant’s

20

conduct is punishable by death, requiring that a jury rather than a judge find the essential

21

facts bearing on punishment,” by holding that “‘a sentencing judge, sitting without a jury,

22

[may not] find an aggravating circumstance necessary for imposition of the death penalty.’”

23

Schriro v. Summerlin, 542 U.S. 348, 353 (2004), quoting Ring, 536 U.S. at 609 (bracket

24

in original).

25

However, “[a] defendant in California is eligible for the death penalty when the jury

26

finds him guilty of first-degree murder and finds one of the § 190.2 special circumstances

27

true.” Tuilaepa, 512 U.S. at 975, citing California v. Ramos, 463 U.S. 992, 1008 (1983);

28

see also Cal. Penal Code § 190.2. As such, a California penalty phase jury’s finding that
226
09cv0388 L (NLS)

1

the aggravation significantly outweighs the evidence in mitigation does not “increase” the

2

penalty for first-degree murder beyond the statutory maximum and Petitioner fails to

3

persuasively show that it is implicated by either Apprendi or Ring. Petitioner fails to

4

demonstrate that the state supreme court’s rejection of this claim was contrary to, or an

5

unreasonable application of, clearly established federal law.

6

2.

Failure to Require Written Findings

7

Next, Petitioner alleges that the California capital statute fails to require specific or

8

written findings regarding aggravating factors, violating Petitioner’s right to due process

9

and meaningful appellate review. (SAP at 167; Lodgment No. 100 at 341-45.)

10

The Ninth Circuit has held that California’s death penalty statute “need not require

11

written jury findings in order to be constitutional.” Williams v. Calderon, 52 F.3d 1465,

12

1484-85 (9th Cir. 1995), citing Harris v. Pulley, 692 F.3d 1189, 1195-96 (9th Cir. 1982),

13

reversed on other grounds by Pulley v. Harris, 465 U.S. 37, 53-54 (1984). Petitioner fails

14

to cite to any clearly established law compelling a conclusion that written findings are

15

constitutionally required.

16

In the absence of any such authority, Petitioner fails to show that the state court’s

17

rejection of this claim was contrary to, or an unreasonable application of, clearly

18

established federal law.

19

3.

Failure to Require Burden of Proof

20

Petitioner also insists that the California capital statute is infirm because

21

constitutional guarantees of due process and against cruel and unusual punishment require

22

the penalty phase jury be instructed that they can only impose a death sentence if they find

23

beyond a reasonable doubt that the evidence in aggravation outweighs that in mitigation

24

and the death sentence is warranted. (SAP at 167; Lodgment No. 100 at 331.)

25

Petitioner’s jury was instructed pursuant to California law that they were to weigh

26

the “totality” of the evidence in aggravation against the “totality” of that in mitigation and

27

“[t]o return a judgment of death, each of you must be persuaded that the aggravating

28

circumstances are so substantial in comparison with the mitigating circumstances that it
227
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1

warrants death instead of life without parole.” (RT 4839-40, 4898, CT 3311-12.) The

2

argument lacks support, as the Supreme Court has upheld the constitutionality of the

3

California capital statute, stating that: “A capital sentencer need not be instructed how to

4

weigh any particular fact in the capital sentencing decision.” Tuilaepa, 512 U.S. at 979

5

(“‘Once the jury finds that the defendant falls within the legislatively defined category of

6

persons eligible for the death penalty, . . . the jury then is free to consider a myriad of

7

factors to determine whether death is the appropriate punishment.’”), quoting Ramos, 463

8

U.S. at 1008. Moreover, the Ninth Circuit has explicitly rejected this argument. See

9

Williams, 52 F.3d at 1485 (“[T]he failure of the statute to require a specific finding that

10

death is beyond a reasonable doubt the appropriate penalty does not render it

11

unconstitutional.”) Accordingly, Petitioner fails to show that the state court’s rejection of

12

this claim was contrary to, or an unreasonable application of, clearly established federal

13

law.

14

4.

Unadjudicated Criminal Activity

15

Petitioner also asserts that the introduction and consideration of unadjudicated

16

criminal activity at the penalty phase violates constitutional guarantees, and argued that

17

Ring and Apprendi require that “all of the findings prerequisite to a sentence of death must

18

be made beyond a reasonable doubt by a jury acting as a collective entity,” which includes

19

findings pertaining to prior criminal activity. (SAP at 167; Lodgment No. 100 at 350-51.)

20

First, Petitioner’s reliance on Ring and Apprendi is misplaced for the reasons

21

discussed above. Moreover, California law specifically provides for the introduction of

22

prior uncharged criminal conduct at capital penalty phase proceedings. See Cal. Penal

23

Code §190.3(b). The Supreme Court has generally noted that “[s]entencing courts have

24

not only taken into consideration a defendant’s prior convictions, but have also considered

25

a defendant’s past criminal behavior, even if no conviction resulted from that behavior.”

26

United States v. Nichols, 511 U.S. 738, 747 (1994). The Ninth Circuit has specifically

27

upheld the admission of unadjudicated criminal activity into evidence at penalty phase

28

proceedings. See McDowell v. Calderon, 107 F.3d 1351, 1366 (9th Cir. 1997), amended
228
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1

116 F.3d 364 (9th Cir. 1997), vacated in part by 130 F.3d 833, 835 (9th Cir. 1997) (en

2

banc). Petitioner fails to show that Supreme Court authority supports his contention and

3

as such, the Court cannot conclude that state court’s rejection of this claim was either

4

contrary to, or an unreasonable application of, clearly established federal law.

5

5.

Lack of Proportionality Review

6

Petitioner argues that the California Supreme Court has interpreted the California

7

capital statute as forbidding inter-case proportionality review and that the state court’s

8

refusal to engage in such review violates the federal Constitution. (SAP at 167; Lodgment

9

No. 100 at 345-50.)

10

The Ninth Circuit has specifically rejected the contention that the California death

11

penalty statute violates the federal Constitution due to a lack of proportionality review,

12

reasoning that such an “argument is foreclosed by the Supreme Court’s holding in Pulley

13

v. Harris, 465 U.S. 37, 43-46, 104 S.Ct 871, 79 L.Ed.2d 29 (1984), that neither the Eighth

14

Amendment nor due process requires proportionality review in imposing the death

15

penalty.” Allen v. Woodford, 395 F.3d 979, 1018 (9th Cir. 2005). In light of the lack of

16

clearly established authority supporting his argument, Petitioner fails to demonstrate that

17

the state supreme court’s rejection of this claim was contrary to, or an unreasonable

18

application of, clearly established federal law.

19

6.

Barriers to the Consideration of Mitigation

20

Petitioner asserts that the use of the terms “extreme” and “substantial” in Cal. Penal

21

Code section 190.3 factors (d) and (g) “acted as barriers to the consideration of mitigation,”

22

in violation of the Constitution. (SAP at 167; Lodgment No. 100 at 352.)

23

Petitioner fails to cite to clearly established law that compels the outcome he seeks.

24

In fact, the Supreme Court rejected a challenge to another state capital sentencing statute

25

that employs the terms “extreme” and “substantially” in a similar manner, rejecting the

26

argument that “these instructions impermissibly precluded the jury’s consideration of

27

lesser degrees of disturbance, impairment, or duress,” and reasoning that the “judge at

28

petitioner’s trial made clear to the jury that these were merely items it could consider, and
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1

that it was also entitled to consider ‘any other mitigating matter concerning the character

2

or record of the defendant, or the circumstances of his offense.’” Blystone v. Pennsylvania,

3

494 U.S. 299, 308 (1990); see also Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir.

4

1992) (use of term “extreme” in penalty phase instructions did not impermissibly prevent

5

jurors from considering relevant evidence in mitigation), citing Blystone, 494 U.S. at 308.

6

Like those cases, the trial court in Petitioner’s case also instructed the penalty phase jury

7

that it, pursuant to factor (k), could consider “any other circumstance which extenuates the

8

gravity of the crime even though it is not a legal excuse for the crime and any sympathetic

9

or other aspect of the defendant’s character or record that the defendant offers as a basis

10

for a sentence less than death, whether or not related to the offense for which he is on trial.”

11

(RT 4897, CT 3310.)

12
13

Accordingly, the California Supreme Court’s rejection of this contention was neither
contrary to, or an unreasonable application of, clearly established federal law.

14

D.

Equal Protection

15

Petitioner argues that “California’s death penalty scheme provides significantly

16

fewer procedural protections for persons facing a death sentence than are afforded persons

17

charged with non-capital crimes,” and that “[t]his differential treatment violates the

18

constitutional guarantee of equal protection of the laws.” (SAP at 167; Lodgment No. 100

19

at 352.)

20

“The Equal Protection Clause of the Fourteenth Amendment commands that no State

21

shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

22

essentially a direction that all persons similarly situated should be treated alike.” City of

23

Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985), quoting Plyler v.

24

Doe, 457 U.S. 202, 216 (1982). The Supreme Court has held that “the penalty of death is

25

qualitatively different from a sentence of imprisonment, however long,” and as such, “there

26

is a corresponding difference in the need for reliability in the determination that death in

27

an appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280,

28

305 (1976). However, because capital and non-capital defendants are not “similarly
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1

situated” to one another, Petitioner fails to persuasively demonstrate that differences in

2

procedural rules implicate equal protection principles. See Massie v. Hennessey, 875 F.2d

3

1386, 1389 (9th Cir. 1989) (“The relevant comparison for equal protection purposes is

4

between two defendants, both of whom are sentenced to death.”)

5

Given the lack of Supreme Court authority supporting his contention, Petitioner has

6

not shown that the California Supreme Court’s rejection of this claim on appeal was either

7

contrary to, or an unreasonable application of, clearly established federal law.

8

E.

International Norms

9

Finally, Petitioner argues that the state of California’s use of the death penalty “falls

10

short of international norms” and violates the Eighth and Fourteenth Amendments to the

11

United States Constitution. (SAP at 167; Lodgment No. 100 at 362.)

12

capital punishment is “unconstitutional in this country inasmuch as international law is a

13

part of our law.” (Id. at 365.)

He asserts that

14

This claim is similar in scope and aim to the contention raised in Claim 26. As

15

discussed below with respect to that claim, Petitioner fails to offer any clearly established

16

federal law that supports his claim of constitutional error. In the absence of controlling

17

authority, Petitioner has not shown that the state supreme court’s rejection of this claim

18

was contrary to, or an unreasonable application of, clearly established federal law.

19

F.

Systemic Delay

20

In the merits brief, Petitioner adds a “supplemental citation and argument as to the

21

failure of the California capital sentencing scheme to comply with the Eighth Amendment,”

22

citing to and relying on Jones v. Chappell, 31 F.Supp.3d 1050 (C.D. Cal. 2014), a case in

23

which a federal district court in California vacated a capital petitioner’s death sentence,

24

holding that California’s capital system was unconstitutional due to arbitrariness and delays

25

in the post-conviction review process. (Pet. Brief at 51.) Petitioner argues that his case

26

“demonstrat[es] the same systemic delay that cumulatively constituted cruel and unusual

27

punishment in Jones,” and also similar to Jones, “the state habeas corpus proceedings were

28

inadequate to provide a reasonable determination of the habeas claims.” (Id. at 52.) Setting
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1

aside the significant hurdle posed by Petitioner’s failure to present and exhaust this

2

contention with the California Supreme Court, even had Petitioner previously raised and

3

exhausted an identical claim in state court, the district court’s decision is not binding on

4

this Court. Moreover, since the briefing, the Ninth Circuit reversed the district court’s

5

decision, finding that the relief sought was barred by Teague. See Jones v. Davis, 806 F.3d

6

538, 553 (9th Cir. 2015) (“Because Petitioner asks us to apply a novel constitutional rule,

7

we may not assess the substantive validity of his claim.”), rehearing and rehearing en banc

8

denied (9th Cir. 2016); but see Alfaro v. Johnson, 862 F.3d 1176, 1185 n. 5 (9th Cir. 2017)

9

(citing recent Supreme Court decisions in Welch v. United States, 578 U.S. ___, 136 S.Ct.

10

1257 (2016) and Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718 (2016), which

11

“suggest[] that, under the Supreme Court’s evolving interpretation of Teague, the rule she

12

seeks to advance may present a substantive rule,” but noting that “because Alfaro’s petition

13

can be resolved on alternative procedural grounds, we do not now decide the continued

14

vitality of our holding to the contrary in Jones.”) As it currently stands, Petitioner fails to

15

provide any clearly established authority in support of his claim for relief, in addition to

16

his failure to exhaust. Habeas relief is not warranted.

17

2.

18

Petitioner asserts that he “suffers from serious mental disabilities of a

19

neuropsychological nature that are the functionally [sic] equivalent of mental retardation

20

with respect to diminishing his culpability, and that should also be deemed a bar to the

21

imposition of capital punishment,” relying on Atkins v. Virginia, 536 U.S. 304 (2002), in

22

which the Supreme Court barred the execution of intellectually disabled offenders. (SAP

23

at 168.) Petitioner requests an evidentiary hearing on this claim. (Id. at 55.)

Claim 25

24

Petitioner raised this claim as Claim XIV in the first state habeas petition and the

25

California Supreme Court rejected it on the merits without a statement of reasoning. (See

26

Lodgment Nos. 106, 118.)

27

“Capital punishment must be limited to those offenders who commit ‘a narrow

28

category of the most serious crimes’ and whose extreme culpability makes them ‘the most
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1

deserving of execution.’” Roper v. Simmons, 543 U.S. 551, 568 (2005), quoting Atkins,

2

536 U.S. at 319. In accordance with this reasoning, the Supreme Court has specifically

3

held that certain classes of defendants, such as juveniles and the intellectually disabled, are

4

ineligible for the death penalty. See e.g. Roper, 543 U.S. at 571 (“Retribution is not

5

proportional if the law’s most severe penalty is imposed on one whose culpability or

6

blameworthiness is diminished, to a substantial degree, by reason of youth and

7

immaturity.”); Hall v. Florida, 572 U.S. ___, 134 S.Ct. 1986, 1992 (2014) (“No legitimate

8

penological purpose is served by executing a person with intellectual disability.”), citing

9

Atkins, 536 U.S. at 317, 320; see also Moore v. Texas, 581 U.S. ___, 137 S.Ct. 1039, 1048

10

(2017) (“In Atkins v. Virginia, we held that the Constitution ‘restrict[s] . . . the State’s

11

power to take the life of’ any intellectually disabled individual.”), quoting Atkins, 536 U.S.

12

at 321 (brackets and emphasis in original).

13

Petitioner contends that he “suffers from serious mental disabilities of a

14

neuropsychological nature that are the functionally [sic] equivalent of mental retardation

15

with respect to diminishing his culpability, and that should also be deemed a bar to the

16

imposition of capital punishment.” (SAP at 168.) Yet, Petitioner fails to cite any clearly

17

established federal law supporting his contention that Atkins bars the execution of

18

individuals with an arguably “equivalent” impairment, given that Atkins simply and clearly

19

holds only that “persons with intellectual disability may not be executed.” Hall, 134 S.Ct.

20

at 1992, citing Atkins, 536 U.S. at 321. As such, Petitioner fails to show that the state

21

court’s rejection of this argument was objectively unreasonable. See Richter, 562 U.S. at

22

101 (“[I]t is not an unreasonable application of clearly established Federal law for a state

23

court to decline to apply a specific legal rule that has not been squarely established by this

24

Court.”), quoting Mirzayance, 556 U.S. at 122 (bracket in original). However, in an

25

abundance of caution, and to the extent Petitioner alleges that his mental disabilities and

26

brain damage establish his intellectual disability and thus render him ineligible for the death

27

penalty under Atkins/Hall, the Court will consider that argument on the merits.

28

///
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1

“[T]he Eighth and Fourteenth Amendments to the Constitution forbid the execution

2

of persons with intellectual disability.” Hall, 134 S.Ct. at 1990, citing Atkins, 536 U.S. at

3

321. The State of California has developed rules and procedures to adjudicate claims of

4

intellectual disability,22 and has defined the term as follows: “As used in this section,

5

‘intellectual disability’ means the condition of significantly subaverage general intellectual

6

functioning existing concurrently with deficits in adaptive behavior and manifested before

7

18 years of age.” Cal. Penal Code § 1376(a). California’s definition of intellectual

8

disability was developed in accordance with the standards discussed by the Supreme Court

9

in Atkins. See In re Hawthorne, 35 Cal. 4th 40, 47 (2005) (noting that “the clinical

10

definitions referenced in Atkins . . . conform to section 1376.”); Hall, 134 S.Ct. at 1994

11

(“As the Court noted in Atkins, the medical community defines intellectual disability

12

according to three criteria: significantly subaverage intellectual functioning, deficits in

13

adaptive functioning (the inability to learn basic skills and adjust behavior to changing

14

circumstances), and onset of these deficits during the developmental period.”), citing

15

Atkins, 536 U.S. at 308, n. 3.

16
17
18
19
20
21

In order to state a claim of intellectual disability in state post-conviction proceedings,
California sets forth the following standard:
To state a prima facie case for relief, the petition must contain ‘a declaration
by a qualified expert stating his or her opinion that the (petitioner) is mentally
retarded . . . .’ (§1376 subd. (b)(1).) Not only must the declarant be a qualified
expert, i.e., an individual with appropriate education, training, and experience,
the declaration must explain the basis for the assessment of mental retardation
in light of the statutory standard.

22
23

24

The current version of Cal. Penal Code § 1376 replaces the term “mentally
retarded,” used in a previous version of the statute, with “intellectual disability.” This
change in terminology has been adopted by numerous entities, including the Supreme
Court. See e.g. Hall, 134 S.Ct. at 1990 (“Previous opinions of this Court have employed
the term ‘mental retardation.’ This opinion uses the term ‘intellectual disability’ to
describe the identical phenomenon.”) The Court will similarly use the term “intellectual
disability” unless directly quoting from a source that uses the prior terminology.

25
26
27
28

22

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09cv0388 L (NLS)

1

Hawthorne, 35 Cal. 4th at 47. Moreover, California requires that “the expert’s declaration

2

must set forth a factual basis for finding the petitioner has significantly subaverage

3

intellectual functioning and deficiencies in adaptive behavior in the categories enumerated

4

above. The evidence must also establish that the intellectual and behavioral deficits

5

manifested prior to the age of 18.” Id. at 48.

6

In the first state habeas petition, Petitioner did not assert that he was intellectually

7

disabled. Instead, he argued that “[w]hether or not Mr. Hoyos is mentally retarded, he

8

suffers from moderate to severe brain damage,” and that “[a]side from the question of

9

whether or not Mr. Hoyos is retarded, the reasoning and logic of Atkins v. Virginia (2002)

10

536 U.S. 304, applies to Mr. Hoyos, whose mental disorders render him volitionally

11

incapacitated. When the U.S. Supreme Court concluded that mentally retarded murderers

12

are categorically so lacking in moral blameworthiness as to be ineligible for the death

13

penalty, its rationale for doing so compels the conclusion that the volitionally incapacitated

14

are likewise ineligible.” (Lodgment No. 106 at 205) (footnote omitted.)

15

Petitioner provided the California Supreme Court with the evaluation of clinical

16

psychologist Thomas MacSpeiden, Ph.D., who examined Petitioner in 1993 in advance of

17

trial, as well as a declaration from clinical psychologist Ricardo Weinstein, Ph.D., who

18

specializes in neuropsychology and examined Petitioner in 2006. (See Lodgment No. 113,

19

Exs. 93, 99.) However, as discussed below, neither expert offers an opinion that Petitioner

20

is intellectually disabled. Petitioner conceded this point in his state habeas petition,

21

acknowledging in a footnote that whether he was intellectually disabled was “an open

22

question that can only be resolved by further investigation,” citing Dr. Weinstein’s

23

declaration. (Lodgment No. 106 at 205 n. 29.)

24

Dr. MacSpeiden reported that testing showed Petitioner’s Verbal IQ was 79,

25

Performance IQ was 85, and his Full Scale IQ was 79. (Lodgment No. 113, Ex. 93 at 16.)

26

He stated that Petitioner was verbally “borderline,” his motor performance was in the “low

27

average range,” and that overall Petitioner was in the “borderline range,” and that while

28

the tests “were somewhat conservative estimates of his intellectual ability because of
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1

cultural factors,” he opined “[i]t is probable that his overall intelligence is in the low

2

average range.” (Id.) Dr. MacSpeiden concluded that: “Jaime Armando Hoyos functions

3

intellectually in the low average range. His verbal IQ tested in the borderline range, but

4

his poor verbal aptitude appeared secondary to the cultural bias of the intelligence test.”

5

(Id. at 22.) Dr. MacSpeiden’s evaluation does not contain any discussion on or offer any

6

opinion as to whether Petitioner is intellectually disabled.

7

Meanwhile, as a result of the 2006 testing, Dr. Weinstein concluded that “Mr. Hoyos

8

is functioning at the mental retardation level of intelligence.” (Lodgment No. 113, Ex. 99

9

at 3.) Dr. Weinstein reported that Petitioner’s verbal IQ was 73, Performance IQ was 75,

10

and Full Scale IQ was 72. (Id.) Dr. Weinstein also noted Petitioner’s “history of multiple

11

brain insults dating back to his childhood” as well as during both Petitioner’s

12

developmental ages and adulthood, in addition to “many instances of loss of

13

consciousness,” and “a long history of severe drug addiction.” (Id.) Dr. Weinstein faulted

14

Dr. MacSpeiden for failing to note that history, as well as for using an interpreter instead

15

of suggesting that the tests should have been conducted by an expert fluent in Spanish. (Id.

16

at 3-4.) Dr. Weinstein stated that: “It is my opinion with a high degree of scientific

17

certainty that Mr. Hoyos suffers from significant brain dysfunction and possibly from

18

mental retardation.” (Id. at 4.) However, Dr. Weinstein further qualified his conclusion

19

that Petitioner “possibly” suffers from an intellectual disability, explaining that:

20

The IQ scores obtained from the instruments utilized indicate that Mr. Hoyos
falls within the range of mental retardation (approximately 2 standard
deviations below the mean). There are also significant suggestions of
adaptive deficits in Mr. Hoyos’s background. Although his ability for
thinking abstractly and rationally is severely limited, as is typical in mentally
retarded individuals, the diagnosis of mental retardation can not be confirmed
without further work and investigation, since many of the potential causes of
his current low intellectual functioning may have occurred after the age of 18.
All currently operative definitions of mental retardation require that the
limitations have originated and manifested prior to the age of 18 years old.

21
22
23
24
25
26
27

(Id.)

28

///
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09cv0388 L (NLS)

1

At oral arguments, Petitioner alleged that the California Supreme Court should have

2

issued an order to show cause on the evidence presented, namely the MacSpeiden and

3

Weinstein declarations. (ECF No. 142 [“Oral Arg. RT”] at 77-78.) Respondent maintained

4

that all three criteria (significantly subaverage intellectual functioning, adaptive deficits,

5

and onset prior to age 18) needed to be met to satisfy Cal. Penal Code § 1376, and Petitioner

6

did not do so, as Dr. Weinstein stated he could not confirm Petitioner’s limitations

7

manifested prior to age 18. (Id. at 79-80.) Respondent stated that “the burden to show that

8

he met Atkins or met California Penal Code 1376 was not met on habeas corpus in the

9

California Supreme Court, and this Court should defer to that finding.” (Id. at 80.)

10

Petitioner asserted that with respect to the state court proceedings, “[c]ounsel took

11

their best shot with the resources that they had, but they exhausted the financial resources

12

provided by the California Supreme Court, applied for additional funding to conduct more

13

investigation, and were denied. So that - - so to the extent that counsel is saying that the

14

Weinstein declaration and the MacSpeiden declaration don’t get the ball all the way down

15

the field into the touchdown zone of a prima facie case, that’s not attributable to defective

16

- - or inadequate performance on the part of state post-conviction counsel. That’s equally

17

attributable to the California Supreme Court not providing resources for further

18

investigation that they - - that they requested and were denied.” (Id. at 82-83.)

19

Petitioner’s filing subsequent to oral arguments supports his contention that state

20

habeas counsel requested such funding, which the state supreme court denied. (See ECF

21

No. 140.) In September 2007, during state habeas proceedings, counsel for Petitioner

22

submitted a confidential application for additional habeas corpus investigation funds,

23

explained that the standard $25,000 permitted for investigation and expert services was

24

“inadequate” and requested supplemental funding for additional investigation, including

25

an additional $7,430 for investigation related to a “Potential Retardation analysis.” (ECF

26

No. 140-1 at 2-3, 12.) Counsel acknowledged the lack of a diagnosis by Dr. Weinstein and

27

stated that: “According to Dr. Weinstein, a definitive diagnosis would require three days

28

in and around Tecate, California, the town where petitioner grew up and where his family
237
09cv0388 L (NLS)

1

remains; two days in San Quentin, to review his medical files and talk with people who

2

have know [sic] him since his arrival at San Quentin in 1994, and one day at La Mesa, the

3

Baja California prison in which he was incarcerated for approximately eight years,” and

4

requested funding for this purpose. (Id. at 10-12) (footnote omitted). In October 2007, the

5

California Supreme Court denied the request. (ECF No. 140-2 at 1.)

6

In his response to Petitioner’s filing, Respondent asserted that the California

7

Supreme Court followed its own rules in denying funding, as state habeas counsel had

8

already exhausted the $25,000 granted for habeas investigation before requesting

9

additional investigative funding. (ECF No. 141 at 2.) Respondent notes that the state

10

court’s own order denying funding cited “Supreme Ct. Policies Regarding Cases Arising

11

from Judgments of Death, Policy 3, Compensation stds., std. 2-2.1,” which states in

12

relevant part that the court “will not authorize counsel to expend, nor will it reimburse

13

counsel, for habeas corpus investigation exceeding $25,000 before the issuance of an order

14

to show cause.” (Id. at 2-3, quoting Sup. Ct. Policy 3, std. 2-2.1.) Respondent argues that

15

Petitioner’s failure to state a prima facie case and the state court’s denial of an OSC “readily

16

explains” this denial of additional funding. (Id. at 4.)

17

At oral arguments, Petitioner asserted that the state court’s rejection of this claim

18

without issuing an OSC was unreasonable, and also argued that any pleading deficiencies

19

in state court were at least partially attributable to the state court’s denial of supplemental

20

investigative funds. (Oral Arg. RT at 77-78, 82-83.) In light of the recent submission, it

21

is clear that state habeas counsel sought additional funding to complete the investigation

22

and attempt to reach a definitive diagnosis on whether Petitioner was intellectually

23

disabled, and that the California Supreme Court denied the request for supplemental

24

funding.

25

The Ninth Circuit has stated that “a federal court may not second-guess a state

26

court’s fact-finding process unless, after review of the state-court record, it determines that

27

the state court was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366

28

F.3d 992, 999 (9th Cir. 2004). The Ninth Circuit also cautioned that a reviewing court
238
09cv0388 L (NLS)

1

“must be particularly deferential to our state court colleagues” and instructed that “before

2

we can determine that the state-court factfinding process is defective in some material way,

3

or perhaps non-existent, we must more than merely doubt whether the process operated

4

properly. Rather, we must be satisfied that any appellate court to whom the defect is

5

pointed out would be unreasonable in holding that the state court’s fact-finding process

6

was adequate.” Taylor, 366 F.3d at 1000.

7

Yet, Petitioner fails to show that the state court acted unreasonably in failing to issue

8

an OSC on his Atkins claim. The California Supreme Court has outlined the procedures

9

for considering a habeas petition, stating in relevant part that: “An appellate court receiving

10

such a petition evaluates it by asking whether, assuming the petition’s factual allegations

11

are true, the petitioner would be entitled to relief. If no prima facie case for relief is stated,

12

the court will summarily deny the petition. If, however, the court finds the factual

13

allegations, taken as true, establish a prima facie case for relief, the court will issue an

14

OSC.” People v. Duvall, 9 Cal. 4th 464, 474-75 (1995) (in bank) (internal and external

15

citations omitted). The Duvall Court also stated that: “Issuance of an OSC signifies the

16

court’s preliminary determination that the petitioner has pleaded sufficient facts that, if

17

true, would entitle him to relief.” Id. at 475.

18

Here, because the California Supreme Court issued a summary denial of Petitioner’s

19

Atkins claim, it is presumed that the state court concluded Petitioner’s allegations failed to

20

state a prima facie case for relief. See Duvall, 9 Cal. 4th at 474-75; see also Pinholster 563

21

U.S. at 188, n.12 (“Under California law, the California Supreme Court’s summary denial

22

of a habeas petition on the merits reflects that court’s determination that ‘the claims made

23

in th[e] petition do not state a prima facie case entitling the petitioner to relief.’ In re Clark,

24

5 Cal. 4th 750, 770, 21 Cal.Rptr.2d 509, 855 P.2d 729, 741-41 (1993).”)

25

Reviewing Petitioner’s claim in light of state law concerning claims of intellectual

26

disability and California’s procedures for considering a habeas petition, the state court’s

27

conclusion was not unreasonable. Again, under California law, in order to state a claim of

28

intellectual disability in state post-conviction proceedings, the habeas petition must be
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09cv0388 L (NLS)

1

accompanied by “‘a declaration by a qualified expert stating his or her opinion that the

2

(petitioner) is mentally retarded . . . .’” See Hawthorne, 35 Cal. 4th at 47, quoting Cal.

3

Penal Code § 1376(b)(1). Specifically, “the expert’s declaration must set forth a factual

4

basis for finding the petitioner has significantly subaverage intellectual functioning and

5

deficiencies in adaptive behavior in the categories enumerated above. The evidence must

6

also establish that the intellectual and behavioral deficits manifested prior to the age of 18.”

7

Id. at 48.

8

Even taking all of Petitioner’s factual allegations, including those in the MacSpeiden

9

and Weinstein declarations, to be true, it is evident that Petitioner did not state a prima

10

facie case for relief, as neither expert stated an opinion that Petitioner was intellectually

11

disabled. Dr. Weinstein indicated he could only state that Petitioner “possibly” met the

12

definition. (Lodgment No. 113, Ex. 99 at 3-4.) Dr. MacSpeiden’s declaration, meanwhile,

13

did not offer an opinion that Petitioner was intellectually disabled or even any discussion

14

of that topic. (See Lodgment No. 113, Ex. 93 at 16.) Given the clear lack of an expert

15

declaration stating an opinion that Petitioner was intellectually disabled, particularly the

16

lack of any showing that Petitioner’s asserted deficits occurred prior to age 18, it is clear

17

that the state court’s rejection of Petitioner’s Atkins claim was not erroneous, much less

18

unreasonable.

19

Nor can the Court conclude that the state court fact-finding process was defective.

20

The record reflects that the state court allocated $25,000 in investigative funds for

21

Petitioner’s habeas proceedings, and Petitioner exhausted that funding. The state supreme

22

court’s own policies specified that investigative expenses exceeding that amount were not

23

allowed prior to the issuance of an OSC. See Supreme Court Policies Regarding Cases

24

Arising From Judgments of Death, Policy 3, std. 2-2.1 (providing in relevant part that “The

25

court will reimburse counsel for expenses up to $25,000 that were reasonably incurred

26

pursuant to the duty to investigate as described in standard 1-1, but it will not authorize

27

counsel to expend, nor will it reimburse counsel for, habeas corpus investigation expenses

28

exceeding $25,000 before the issuance of an order to show cause.”)
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1

As Respondent correctly notes, the California Supreme Court followed, and cited to,

2

its own policy in denying Petitioner’s supplemental request. In light of California law on

3

the requirements for stating a prima facie case for relief on a claim of intellectual disability,

4

Petitioner’s failure to satisfy that standard, and the state supreme court’s own rules, the

5

rejection of supplemental funding was reasonable and not indicative of a “deficient” or

6

“non-existent” state court fact-finding process. See Taylor, 366 F.3d at 1000. The state

7

court authorized investigative funds during Petitioner’s habeas proceedings, which were

8

used in part to retain Dr. Weinstein to test and evaluate Petitioner, and state habeas counsel

9

presumably made decisions concerning the best use of those investigative funds. Petitioner

10

has not offered any indication that had those funds been used differently, or had the state

11

court authorized additional funding even prior to the issuance of an OSC, Petitioner could

12

have stated a claim for relief. As such, the inability to plead a successful claim does not

13

appear readily attributable to inadequacies in the state court process. Petitioner fails to

14

provide evidence supporting a conclusion that he actually meets the definition of

15

intellectual disability. Even taking his factual allegations to be true, the strongest support

16

is Dr. Weinstein’s assertion that Petitioner “suffers from significant brain dysfunction and

17

possibly from mental retardation.” (Lodgment No. 113, Ex. 99 at 4.)

18

Had the state court provided for further investigation and development of this claim,

19

the Court acknowledges a possibility Petitioner could have obtained and provided evidence

20

showing an onset prior to age 18. At the same time, however, the Court must recognize

21

that further investigation could have instead revealed the onset of Petitioner’s condition

22

occurred after 18. Again, Petitioner himself acknowledged during state habeas proceedings

23

that the issue of whether he was intellectually disabled was “an open question that can only

24

be resolved by further investigation.” (Lodgment No. 106 at n. 29.) Dr. Weinstein’s

25

evaluation and declaration also clearly allowed for either outcome, as he indicated only

26

that Petitioner “possibly” suffered from intellectual disability. While Dr. Weinstein

27

appeared to clearly find that Petitioner met the first criteria, stating that Petitioner

28

functioned at a significantly subaverage intelligence level, the expert was much less firm
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1

concerning the second criteria, indicating only that there were “significant suggestions of

2

adaptive deficits” in Petitioner’s history. (Lodgment No. 113, Ex. 99 at 4) (emphasis

3

added.) Finally, Dr. Weinstein cited an inability to reach any conclusion on the third

4

criteria, or to actually confirm a diagnosis, as he could not determine whether the onset was

5

prior to 18, and indeed explicitly conceded that “many of the potential causes of his current

6

low intellectual functioning may have occurred after the age of 18.” (Id.) It is also notable

7

that Dr. MacSpeiden, who examined Petitioner in 1993 prior to trial, found Petitioner’s

8

intelligence to be “low average,” which is clearly contrary to Dr. Weinstein, who in 2006

9

found Petitioner to be “functioning at the mental retardation level of intelligence.”

10

(Compare Lodgment No. 113, Exs. 93 (MacSpeiden) and 99 (Weinstein).)

11

“Atkins stated in clear terms that ‘we leave to the State(s) the task of developing

12

appropriate ways to enforce the constitutional restriction upon (their) execution of

13

sentences.’” Schriro v. Smith, 546 U.S. 6, 7 (2005) (per curiam), quoting Atkins, 536 U.S.

14

at 317 and Ford v. Wainwright, 477 U.S. 399, 416-17 (1986). Petitioner failed to

15

demonstrate, as required by California law to state a claim for relief, that he suffered from

16

“significantly subaverage intellectual functioning and deficiencies in adaptive behavior”

17

and “that the intellectual and behavioral deficits manifested prior to the age of 18.”

18

Hawthorne, 35 Cal. 4th at 47-48. Accordingly, the Court cannot conclude that the

19

California Supreme Court’s rejection of this claim without providing for additional

20

investigation was in error, much less that it was objectively unreasonable so as to merit

21

relief under AEDPA.

22

Ultimately, Petitioner fails to show that the California Supreme Court’s rejection of

23

this claim was either contrary to, or an unreasonable application of, Atkins, or that the

24

California Supreme Court’s conclusion was based on an unreasonable determination of the

25

facts. As such, neither habeas relief nor an evidentiary hearing is warranted on Petitioner’s

26

Atkins claim. See Sully, 725 F.3d at 1075.

27

///

28

///
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1

3.

2

Petitioner asserts that his death sentence “not only violates the Eighth Amendment

3

of the United States Constitution as construed in Atkins, but also the various sources of

4

international law bearing on this issue, including Article 53 of the Vienna Convention.”

5

(SAP at 168-69.)

Claim 26

6

Petitioner raised this claim as Claim XV in the first state habeas petition, and the

7

California Supreme Court rejected it on the merits without a statement of reasoning. (See

8

Lodgment Nos. 106, 118.)

9

Petitioner fails to offer any support for his contention that the international

10

agreements and statements discussed in the state habeas petition are enforceable on federal

11

habeas review, nor does he cite to any clearly established federal law that supports his

12

claim of constitutional error. In the absence of any controlling authority supporting this

13

argument, Petitioner has not shown that the state supreme court’s rejection of this claim

14

was objectively unreasonable. Habeas relief is not warranted on Claim 26.

15

4.

16

Petitioner contends that “capital sentencing in California is overall deficient because

17

of the disparate practices in the 58 separate counties” and that “[t]he result is akin to

18

discrimination on the basis of geographic coincidence,” in violation of the Fifth, Sixth,

19

Eighth and Fourteenth Amendments. (SAP at 169.)

20

substantial equal protection law that when fundamental rights are at stake, uniformity of

21

procedures among counties within the state is essential. Bush v. Gore, 531 U.S. 98 (2000).”

22

(Id.)

Claim 27

He also asserts that “[t]here is

23

Petitioner raised this claim as Claim XVII in the first state habeas petition, and the

24

California Supreme Court rejected it on the merits without a statement of reasoning. (See

25

Lodgment Nos. 106, 118.)

26

Petitioner’s reliance upon Bush v. Gore is misplaced, as that decision involved legal

27

challenges arising from the 2000 presidential election, and the Supreme Court specifically

28

stated in that case that “[o]ur consideration is limited to the present circumstances, for the
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1

problem of equal protection in election processes generally presents many complexities.”

2

Id., 531 U.S. at 109 (emphasis added).

3

As for Petitioner’s general assertion that variances among the California counties in

4

charging, prosecution and sentencing violates constitutional principles, he fails to offer

5

clearly established law supporting his position. Indeed, the Supreme Court has on multiple

6

occasions rejected the contention that prosecutorial discretion in capital charging violates

7

constitutional principles. See e.g. Jurek v. Texas, 428 U.S. 262, 274 (1976); Proffitt v.

8

Florida, 428 U.S. 242, 254 (1976); Gregg v. Georgia, 428 U.S. 153, 199-200 (1976). The

9

California Supreme Court, citing those same holdings, has similarly rejected this argument.

10

See e.g. People v. Williams, 16 Cal. 4th 153, 278 (Cal. 1997), quoting People v. Keenan,

11

46 Cal. 3d 478, 505 (Cal. 1988) (“[P]rosecutorial discretion to select those eligible cases

12

in which the death penalty will actually be sought does not in and of itself evidence an

13

arbitrary and capricious capital punishment system or offend principles of equal protection,

14

due process, or cruel and/or unusual punishment.”), citing Jurek, 428 U.S. at 274, Profitt,

15

428 U.S. at 254, Gregg, 428 U.S. at 199-200.

16

In light of this authority, Petitioner fails to show that the California Supreme Court’s

17

rejection of this claim was either contrary to, or an unreasonable application of, clearly

18

established federal law. Habeas relief is unavailable on Claim 27.

19

5.

20

Petitioner alleges that he “was substantially prejudiced at both phases of the trial

21

proceedings because of the combined errors, misconduct, and deficient performance by the

22

trial court, the prosecutor, and defense counsel, rending this trial fundamentally unfair

23

under the Fifth, Sixth, Eighth, and Fourteenth Amendments.” (SAP at 170.)

24
25
26
27
28

Claim 28

Petitioner raised this claim on direct appeal, which the California Supreme Court
rejected, reasoning as follows:
Defendant requests that we consider the cumulative effect of any errors in the
pretrial stage, guilt phase, or penalty phase in deciding whether to reverse
defendant’s convictions and death sentence. Because we conclude there were
no individual errors of any kind, we reject defendant’s claim that any
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1

cumulative effect warrants reversal.

2

Hoyos, 41 Cal. 4th at 927. Petitioner re-raised the claim as Claim XVI of his first state

3

habeas petition, and the California Supreme Court denied the claim on the merits without

4

a statement of reasoning. (Lodgment No. 106, 118.)

5

“The Supreme Court has clearly established that the combined effect of multiple trial

6

court errors violates due process where it renders the resulting criminal trial fundamentally

7

unfair.”

8

Mississippi, 410 U.S. 284, 298, 302-03 (1973). “The cumulative effect of multiple errors

9

can violate due process even where no single error rises to the level of a constitutional

Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007), citing Chambers v.

10

violation or would independently warrant reversal.”

11

Chambers, 410 U.S. at 290 n.3. Here, Petitioner failed to demonstrate the existence of any

12

error, much less multiple errors that could combine to sustain a claim of cumulative error.23

13

See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (“Because there is no single

14

constitutional error in this case, there is nothing to accumulate to a level of a constitutional

15

violation.”)

Parle, 505 F.3d at 927, citing

16

Petitioner fails to show that the California Supreme Court’s rejection of this claim

17

was either contrary to, or an unreasonable application of, clearly established federal law,

18

or that it was based on an unreasonable determination of the facts. Habeas relief is not

19

warranted on Claim 28.

20

///

21

///

22
23

24

In the merits briefing, “Counsel for petitioner request leave to provide additional
briefing on the cumulative prejudice argument after this Court rules as to the existence of
constitutional errors whose prejudice must be weighed cumulatively.” (Pet. Brief at 5455.) Because Petitioner fails to show the existence of any single instance of constitutional
error, much less multiple instances, Petitioner fails to demonstrate a possibility of
cumulative error. Accordingly, the Court finds no need for additional briefing on this
matter.

25
26
27
28

23

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1

VI. CERTIFICATE OF APPEALABILITY

2

In a habeas case, a certificate of appealability [“COA”] may be granted “only if the

3

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

4

§ 2253(c)(2). “A certificate of appealability should issue if ‘reasonable jurists could debate

5

whether’ (1) the district court’s assessment of the claim was debatable or wrong; or (2) the

6

issue presented is ‘adequate to deserve encouragement to proceed further.’” Shoemaker v.

7

Taylor, 730 F.3d 778, 790 (9th Cir. 2013), quoting Slack v. McDaniel, 529 U.S. 473, 484

8

(2000); see also Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (“Indeed, a claim can be

9

debatable even though every jurist of reason might agree, after the COA has been granted

10

and the case has received full consideration, that petitioner will not prevail.”) Meanwhile,

11

the Ninth Circuit has repeatedly characterized the standard required for granting a COA as

12

“relatively low” or “modest.” See e.g. Jennings v. Woodford, 290 F.3d 1006, 1010 (9th

13

Cir. 2002), Silva v. Woodford, 279 F.3d 825, 832 (9th Cir. 2002), quoting Lambright v.

14

Stewart, 220 F.3d 1022, 1024 (9th Cir. 2000). In light of this standard, the Court finds

15

Claims 1, 5, 13, 14, 22, 23, and 25 appropriate for a COA.

16

VII. CONCLUSION

17

For the reasons discussed above, the Court DENIES Respondent’s request to

18

dismiss Claims 14-16 on the basis of state procedural bars, DENIES Petitioner’s motion

19

for an evidentiary hearing on Claims 13-23 and 25, and DENIES Petitioner’s request for

20

relief on the merits of all claims in the SAP. In the final order, the Court will GRANT a

21

COA on Claims 1, 5, 13, 14, 22, 23, and 25.

22

IT IS SO ORDERED.

23

Dated: October 4, 2017

24
25
26
27
28
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