CHRISTEN, Circuit Judge:
Reynaldo Medrano Ayala appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C.
On April 26, 1985, Jose Rositas, Marcos Zamora, and Ernesto Dominguez Mendez ("Dominguez") were murdered execution-style in an auto body shop located on 43rd Street in San Diego, California.
The murders occurred around 8 p.m. Within a few hours, San Diego gang intelligence detective Carlos Chacon urged his counterparts in the San Diego homicide unit to investigate brothers Hector and Reynaldo Ayala and their associate Juan Manuel Meza as potential suspects.
Ayala was arrested in June of 1985 and charged with three counts of murder, one count of attempted murder, one count of robbery, and three counts of attempted robbery. See Cal. Penal Code §§ 187 (murder), 664 (attempt), 211 (robbery). Hector and Joe Moreno were arrested and charged around the same time.
In February 1987, San Diego police officers arrested Juan Manuel Meza for drug distribution. Meza pleaded guilty to possession of cocaine several weeks after his arrest and entered into a plea agreement that provided he would serve four years in prison. Detective Chacon, who knew Meza from childhood, visited Meza in jail several times during the spring of 1987. Meza admitted to Chacon that he helped the Ayalas plan the 43rd Street murders, even though he ultimately did not participate. Meza met with the district attorneys involved in Ayala's case in April or May 1987 and agreed to testify against Ayala, Hector, and Moreno. In the summer of 1987, a district attorney appeared at Meza's sentencing on the drug possession charge. The D.A. asked the judge to sentence Meza pursuant to Cal. Penal Code § 1170(d) so he could "recall the sentence
Ayala and Hector were believed to be members of the Mexican Mafia — or EME — a prison gang with an active street program that operated throughout southern California, but all parties agreed that the 43rd Street murders were not gang related. Ayala's lawyers filed a pretrial motion in limine in which they argued that mention of the Mexican Mafia or Ayala's gang affiliation at trial would be unduly prejudicial and of questionable relevance to the case.
The state trial judge was initially disinclined to rule on the motion. He agreed with the prosecution that it would be difficult to rule on the admissibility of gang affiliation evidence before hearing each witness's testimony. The defense team pursued this pre-trial ruling for months, persistently arguing that, without a ruling, they would not be able to "strategize [and] determine what course of action to take with regard to jury selection and cross-examination." The judge ultimately relented and ruled as follows:
The trial judge also said he would instruct witnesses not to mention gangs in their cross-examination testimony, but "if the question calls for that response, then so be it." As the trial progressed, the court ruled that each witness could mention "group" or "association" if necessary, but not "EME" or "Mexican Mafia."
Ayala's trial began in August 1988 and lasted two months.
Castillo testified that Dominguez and Zamora sold heroin from the shop and that he was also involved in the heroin distribution
Castillo did not immediately identify the Ayalas or Joe Moreno as the perpetrators of the crime. Rather, "while in the ambulance on the way to the hospital, [he] said he did not know the killers [but] that one of them was wearing a red plaid shirt." Id. 96 Cal.Rptr.2d 682, 1 P.3d at 15. The next day at the hospital, Castillo repeated "that one of the killers was wearing a red Pendleton shirt" when he was interviewed by a detective. Id. But the day after that, Castillo identified the Ayalas and Joe Moreno as the killers and also picked them out of a photo array. Id. 96 Cal.Rptr.2d 682, 1 P.3d at 14.
In addition to providing an eyewitness account of the crimes, Castillo's testimony corroborated the prosecution's theory of the case: He told the jury that Hector inquired about Dominguez's whereabouts roughly a week before the murders when Dominguez was in jail for minor offenses. Id. 96 Cal.Rptr.2d 682, 1 P.3d at 12. Pursuant to Dominguez's request, Castillo told Hector that Dominguez was in Mexico rather than revealing that he was in jail. Id.
Juan Meza was also an important witness for the State because he testified that he helped plan the murders before backing out on the day of the crime. Meza told the jury that he and Hector went to the body shop to acquire drugs more than ten times between January and April 1985. He explained that about three weeks before the murders, the Ayala brothers became angry with Dominguez over a drug transaction, and Ayala proposed robbing and killing Dominguez and some of the people who worked with him. Meza testified that in the weeks before the murder, he and the Ayalas talked about Dominguez's trip to Tijuana to buy a large amount of drugs, tying the victims, and the types of guns they would use to commit the crime. Meza also described how, about a week before the murders, Hector recruited Joe Moreno to serve as the getaway driver. Meza testified that he went along with the Ayalas' plan but he never intended to participate in the murders because he feared the Ayalas would use the crime as an opportunity to kill him. According to Meza, Hector told him to be ready to be picked up on April 26 between 5 and 6 p.m., but Meza avoided his home at the appointed time.
The defense presented evidence that "Castillo was in league with the probable actual killers: two young Latino men, one of whom was wearing a red plaid shirt of the Pendleton brand or type." Id. 96 Cal.Rptr.2d 682, 1 P.3d at 15. The defense also focused on raising reasonable doubt by discrediting the State's primary witnesses.
Ayala's trial counsel offered the testimony of Traci Pittman in support of the
The defense also called Rafael Mendoza Lopez ("Rafa") as a witness. Rafa was a long-time friend of Dominguez who frequented the body shop to purchase drugs. Id. 96 Cal.Rptr.2d 682, 1 P.3d at 15-16. On direct examination, Rafa testified that he went to the body shop on the day of the murders to get heroin from Castillo, and he saw several strangers whom he perceived to be from Mexico. Rafa testified that he did not see the Ayalas at the shop that day. Rafa described standing next to Castillo when Castillo opened the trunk of a car and took out two guns that were buried in a pile of dirty clothes. Rafa recalled Castillo telling him "that he was waiting for some people from Mexico."
The defense endeavored to weaken the State's case by impeaching its primary witnesses, Castillo and Meza. Counsel cross-examined Castillo about his role in the body shop's drug distribution business and false statements he made during the preliminary hearing in which he denied any knowledge of drug-related activity at the body shop. Id. 96 Cal.Rptr.2d 682, 1 P.3d at 14-15. The defense emphasized that Castillo did not initially identify Ayala as the killer, but rather said the killer was a stranger "wearing a red Pendleton shirt." Id. 96 Cal.Rptr.2d 682, 1 P.3d at 15. Counsel impeached Meza with the fact that he was testifying in the hope of getting his sentence reduced, inconsistencies in his story, that it took more than a year for him to come forward, meetings he had with Chacon before deciding to testify, and a statement he made to his parole officer in which he admitted he had a propensity for lying.
Rafa dramatically recanted his testimony in the prosecution's rebuttal. Called back to the witness stand, he told the jury that he invented the story about Castillo taking guns from the trunk of a car and commenting about waiting for people "from Mexico." He also admitted, contrary to his earlier account, that he did see the Ayalas at the body shop late in the afternoon on the day of the murders.
When asked why he lied on Ayala's behalf, Rafa testified that he did it because Ayala asked him to, and because he was afraid that if he refused to help the Ayalas, he "might, you know, get killed or something." According to Rafa, Ayala asked him to testify falsely for the defense at a jailhouse visit that occurred shortly after Ayala's arrest in the summer of 1985. Rafa explained that Ayala pressed a piece of paper against the visiting room glass separator. A handwritten note on the paper instructed Rafa to get in touch with a defense investigator and tell him "that [the Ayalas] weren't [at the shop] on that date, make it seem like it was some Mexicans from across the border that Pete [Castillo] had hired to come and do the hit." Rafa testified that the note described the guns
Lead defense counsel vigorously cross-examined Rafa about his flip-flopped testimony. Counsel questioned the plausibility of Rafa's meeting with Ayala, including how Ayala could write such intricate directions on a piece of paper small enough to avoid detection by prison guards. Id. 96 Cal.Rptr.2d 682, 1 P.3d at 16. She also introduced evidence that cast doubt on the credibility of Rafa's recantation. Id. In particular, though Rafa testified that a person with the nickname "Rudy Green Eyes" Ybarra accompanied him on the visit to see Ayala in jail, counsel showed that "Rudy Green Eyes" was incarcerated at that time. Id.
Defense counsel also explored a meeting Rafa had with Detective Chacon during which, counsel believed, Chacon coerced Rafa into recanting. Chacon visited Rafa shortly after Rafa testified for the defense, when Rafa was in a holding cell awaiting transport back to prison. During this visit, Chacon accused Rafa of perjuring himself to get into the good graces of the prison's "Southern" group, with which Ayala was affiliated. Chacon told Rafa he believed this effort failed and that Rafa would face danger from both the "Southern" group and a rival "Northern" group once he returned to prison. Rafa admitted that Chacon discussed protecting him against these groups, and defense counsel accused Rafa of trading his testimony for the relative safety Chacon promised. On redirect, Rafa confirmed that he feared the "Southern" and "Northern" groups and believed Ayala had "influence over what other people in this Southern group might do," but he denied that Chacon frightened him into recanting his testimony. Rafa maintained that he willingly told Chacon the truth because he was angry that people affiliated with Ayala "show[ed him] no kind of respect" even after he promised to lie on Ayala's behalf.
Detective Carlos Chacon testified only briefly at trial, but Ayala argues that Chacon played a significant behind-the-scenes role in this case. Chacon was a San Diego gang intelligence officer whose regular duties required that he gather intelligence about prison gangs operating in southern California, including the Mexican Mafia. Chacon had pre-trial contact with several of the witnesses in Ayala's trial.
In addition to meeting with Rafa just before he agreed to recant the testimony he gave on Ayala's behalf, Chacon visited Juan Meza after Meza's February 1987 drug arrest, and the two discussed the 43rd Street murders. Meza was a Mexican Mafia affiliate who spent much of the decade between 1975 and 1985 in prison. Chacon was well acquainted with Meza because the two grew up in the same neighborhood. Chacon frequently visited Meza in jail to elicit information about gangs. Several weeks after one such visit, Meza admitted to his involvement in planning the 43rd Street murders, and several months after that, he agreed to testify against the Ayalas.
After deliberating for less than a week, the jury found Ayala guilty of all charges. Id. 96 Cal.Rptr.2d 682, 1 P.3d at 11, 1 P.3d at 14. The trial court sentenced him to death in early January 1989, and Ayala appealed.
Ayala filed a state habeas corpus petition in the California Supreme Court while his direct appeal was pending. The petition raised several claims for relief and requested an evidentiary hearing. The California Supreme Court decided Ayala's direct appeal in June 2000, affirming Ayala's
Ayala timely filed a federal habeas corpus petition in the Southern District of California. Shortly thereafter, the district court stayed the federal proceedings so Ayala could return to state court and exhaust several of his claims.
Ayala filed his first amended petition for writ of habeas corpus (henceforth, "Exhaustion Petition") in the California Supreme Court in September 2002. He filed two exhibits with his Exhaustion Petition: (1) a declaration by defense investigator Eric Hart; and (2) a declaration by Strickland expert Steven L. Harmon. He also requested an evidentiary hearing. The California Supreme Court summarily denied each of Ayala's claims on the merits the following year. "[S]eperately and independently," the court found many of Ayala's claims to be procedurally barred as untimely.
Ayala then filed a first amended petition for writ of habeas corpus in federal district court in which he asserted seventy-five claims for relief. Between February 2008 and June 2009, the district court issued three orders resolving cross-motions for summary judgment on most of Ayala's claims. The court decided that some of Ayala's ineffective assistance of counsel and witness intimidation claims were potentially meritorious, and it granted Ayala's request for an evidentiary hearing on them.
The district court's evidentiary hearing on Ayala's ineffective assistance of counsel and witness intimidation claims spanned twenty court days over a period of nine months in 2010. The district court took testimony from about twenty witnesses, and the parties introduced nearly 120 exhibits. Following this hearing, Ayala filed a third amended habeas corpus petition for the sole purpose of adding a new claim, the seventy-sixth, based on testimony adduced at the hearing.
On March 28, 2013, the district court issued a lengthy, well-reasoned order granting the State's motion for summary judgment on Ayala's remaining exhausted claims. See Ayala v. Chappell, No. 01CV0741-BTM, 2013 WL 1315127 (S.D. Cal. Mar. 28, 2013). In a separate order, it granted the State's motion for summary judgment, and denied Ayala's request for a certificate of appealability (COA), on Ayala's unexhausted seventy-sixth claim. The court issued a final judgment and granted a COA on twenty-six claims, including sixteen of the seventeen claims raised here. Ayala timely filed a notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court's denial of Ayala's habeas corpus petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs Ayala's petition because he filed it after 1996. AEDPA substantially limits the power of federal courts to grant habeas relief to state prisoners. See id. Under AEDPA, a federal court may not grant a prisoner's petition on a claim that was decided on the merits in state court unless the state court's adjudication of the claim:
28 U.S.C. § 2254(d); see also Glebe v. Frost, ___ U.S. ___, 135 S.Ct. 429, 430, 190 L.Ed.2d 317 (2014).
"`[C]learly established Federal law' ... is the governing legal principle or principles set forth by the Supreme Court [in its holdings] at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). A state court's decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is an unreasonable application of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08, 120 S.Ct. 1495. A state court's factual findings are unreasonable if "reasonable minds reviewing the record" could not agree with them. Brumfield v. Cain, ___ U.S. ___, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356 (2015) (alteration omitted) (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010)). In any case, "[f]or relief to be granted, a state court merits ruling must be `so lacking in justification that there was an error ... beyond any possibility for fairminded disagreement.'" Bemore v. Chappell, 788 F.3d 1151, 1160 (9th Cir. 2015) (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).
When considering whether a state court's decision was unreasonable under § 2254(d)(1), we may consider only "the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).
We apply AEDPA's standards to the state court's last reasoned decision on the merits of a petitioner's claims. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). The California Supreme Court decided seven of the claims at issue here in its reasoned decision on direct review. See Ayala, 96 Cal.Rptr.2d 682, 1 P.3d at 17-42, 48-52. Ayala raised the remaining claims in his Exhaustion Petition, so the only merits decision on those claims is the California Supreme Court's September 2003 summary denial. See Harrington, 562 U.S. at 98, 131 S.Ct. 770 (holding that a summary denial from the California Supreme Court is an "adjudicat[ion] on the merits" under AEDPA). For claims that the California Supreme
We first address the State's threshold argument that the procedural bar doctrine prevents us from reaching the merits on several of Ayala's claims. The procedural bar doctrine prohibits a federal court from granting relief on the merits of a state prisoner's federal claim when the state court denied the claim based on an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The doctrine is implicated where, as here, the state court's "reliance upon [the state's] procedural bar rule was an independent and alternative basis for its denial of the petition." Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000). Even if the procedural bar doctrine otherwise precludes relief on a prisoner's claim, he or she "may obtain federal review of [that] claim by showing cause for the default and prejudice from a violation of federal law." Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 1316, 182 L.Ed.2d 272 (2012).
In its 2003 summary denial of Ayala's Exhaustion Petition, the California Supreme Court ruled that many of the seventy-five claims included in the petition were "procedurally barred ... as untimely" in addition to denying them on the merits. See In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509,855 P.2d 729, 737-62 (1993). The State argued before the district court that the procedural bar doctrine prevented the court from granting relief on claims the California court dismissed as untimely.
The district court still declined to resolve Ayala's federal petition on procedural grounds. Having concluded the 20-day evidentiary hearing and foregone defense counsel's offer to brief cause and prejudice,
The State renews its procedural bar argument here, and we follow the same tack as the district court. The State is correct that Walker precludes relief on several of Ayala's claims unless Ayala demonstrates cause and prejudice for his procedural default, see Walker, 562 U.S. at 316, 131 S.Ct. 1120, but the parties did not develop a record on cause and prejudice. See, e.g., Loveland, 231 F.3d at 644-45 (remanding for the district court to hold an evidentiary hearing on cause and prejudice). Thus, in keeping with Franklin's admonishment that where claims are "clearly not meritorious," "appeals courts are empowered to, and in some cases should, reach the merits of habeas petitions... despite an asserted procedural bar," 290 F.3d at 1232, we proceed to evaluate Ayala's claims on the merits.
Ayala first argues that his defense team was constitutionally ineffective because his lawyers failed to present evidence that would have called into question the credibility of key prosecution witnesses Meza and Castillo.
"The clearly established federal law for ineffective assistance of counsel ["IAC"] claims, as determined by the Supreme Court, is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ...." Andrews v. Davis, 798 F.3d 759, 774 (9th Cir. 2015). To prevail on an IAC claim, a defendant must establish that his counsel's performance was constitutionally deficient, and that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Strickland's "deficient performance" prong requires a defendant to show "that counsel's representation fell below an objective standard of reasonableness" such that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687-88, 104 S.Ct. 2052. In evaluating a lawyer's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Strickland's "prejudice" prong requires a defendant to show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
"Under the AEDPA, the primary issue is whether the state court adjudication
Long before trial started, Ayala's defense team decided on a plan to insulate the jury from hearing evidence that Ayala was affiliated with the Mexican Mafia. This plan informed defense counsels' decisions not to present the testimony of several impeachment witnesses whom they believed were affiliated with prison gangs. Ayala now argues that his lawyers' decisions not to call these witnesses amounted to deficient performance under Strickland, and that the California Supreme Court's denial of this IAC claim was unreasonable. We analyze this argument by considering first whether the California Supreme Court reasonably applied Strickland's deferential standard when it upheld the defense's "no-gang" trial plan, and then whether the defense team's decision not to call individual witnesses was consistent with the plan.
The California court did not evaluate counsels' overall "no-gang" plan in a reasoned decision, so we "determine what arguments or theories ... could have supported[] the state court's decision[] and then ... ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of" the Supreme Court. Harrington, 562 U.S. at 102, 131 S.Ct. 770. We conclude that the California Supreme Court reasonably deferred to defense counsels' choices regarding exclusion of gang affiliation evidence.
The record leaves no doubt that counsels' effort to avoid mention of the Mexican Mafia or EME at trial was a carefully considered, deliberately undertaken strategy, the likes of which we cannot second-guess on federal habeas review. In People v. Cardenas, 31 Cal.3d 897, 184 Cal.Rptr. 165, 647 P.2d 569 (1982), the California Supreme Court recognized that gang affiliation evidence is prejudicial because it invites a jury to find a defendant guilty by association. Id., 184 Cal.Rptr. 165, 647 P.2d at 572. Ayala's lawyers cited Cardenas's progeny in their motion in limine to exclude gang affiliation evidence, where they argued that mention of the Mexican Mafia would unduly prejudice Ayala.
Ayala nevertheless argues that his lawyers' failure to call witnesses with any connection to a gang was overly cautious and unduly hindered Ayala's defense. We disagree. Ayala's argument assumes that defense counsel could have controlled the extent to which the trial court would have allowed the prosecution to explore a witness's gang affiliation on cross-examination if the subject had been broached on direct examination. But the record refutes that assumption. The trial court did not categorically prohibit all gang-related testimony because, as the court made clear in its ruling on the defense motion in limine, a witness's gang affiliation could be highly relevant to his or her motive to lie on Ayala's behalf. The court correctly ruled that such testimony might be admitted on cross examination if "the people perceive a need to deal with the credibility issue" or "if [a] question calls for that response," and it did not specify whether or to what extent a witness's mention of gangs might open the door to evidence that could connect Ayala to the Mexican Mafia. And even though the trial court cautioned each witness not to mention the Mexican Mafia, defense counsel risked losing command of a witness's testimony once the witness was on the stand. See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1089 (9th Cir. 2010) (en banc) (recognizing the inherent unpredictability in presenting witness testimony). For these reasons, calling any witness with a gang connection necessarily entailed some risk of tainting Ayala in the jury's eyes, and the defense team's cautious approach to these witnesses was well within the broad "range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also id. at 690, 104 S.Ct. 2052 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.").
Ayala's primary IAC claim is that his lawyers were constitutionally ineffective because they failed to impeach Juan Meza with the testimony of inmate Richard Savocchio.
Defense counsel subpoenaed Savocchio in anticipation of his testifying on Ayala's behalf. Savocchio's prison file showed that he had some sort of problem with the Mexican Mafia while incarcerated so, consistent with its pre-trial ruling, the trial court required him to testify at a hearing outside of the jury's presence to determine the extent to which he could be impeached before the jury with evidence of gang ties. Ayala, 96 Cal.Rptr.2d 682, 1 P.3d at 31.
Savocchio said that he and Meza were incarcerated together after the 43rd Street murders and that Meza told him: "these guys [the Ayalas] are going down anyhow, and I'm going to get something out of it. It's all bullshit. I don't know anything about it, they are going anyways." Defense counsel argued that "Savocchio understood the meaning of the conversation to be that Mr. Meza was cutting a deal for himself to testify in the case about which he knew nothing." The prosecution and the defense both asked Savocchio about the gang notation in his prison file, and Savocchio denied any gang affiliation. He testified that he was not acquainted with any Mexican Mafia members. Savocchio explained that the gang notation in his file related to a lie he told years earlier: In order to manipulate
After hearing Savocchio's testimony outside the presence of the jury, the trial court ruled that if the defense called Savocchio to testify, the prosecution would be allowed to impeach Savocchio with his admission that he lied to prison officials and that the lie involved the Mexican Mafia. The defense expressed concern that the prosecutor's cross-examination about the Mexican Mafia might backfire and harm Ayala and so decided against calling Savocchio.
Ayala argued on direct appeal that his trial counsel was constitutionally ineffective for declining to call Savocchio, and the California Supreme Court rejected this argument in a reasoned decision. Id. 96 Cal.Rptr.2d 682, 1 P.3d at 32-33. Ayala raised the same Savocchio-based IAC claim on federal habeas review with slightly better results. The district court ruled that the California Supreme Court's resolution of this claim was unreasonable under 28 U.S.C. § 2254(d)(1) because the state court's rationale for denying it was inconsistent with its reasoning on a related evidentiary ruling.
We agree that the cost-benefit analysis associated with Savocchio's testimony significantly changed after Rafa recanted. Recalled to the witness stand by the prosecutor, Rafa told the jury that he had seen the Ayala brothers at the shop on the day of the murders and that he lied when he said otherwise because Ayala asked him to. He testified that he knew of (and feared) the "Northern group" and the "Southern group" at Donovan State Prison. When asked by the prosecutor whether he "believe[d] that the defendant in this case has any influence over what other people in this Southern group might do, as it pertains to you," Rafa answered "[y]es." He
More importantly, counsel did not make their decision regarding Savocchio in a vacuum but instead had to gauge the likely value to be gained from Savocchio's testimony. Even after Rafa recanted, there were several reasons to think that Savocchio's testimony might have been more harmful than helpful: (1) Savocchio did not have a close relationship with Meza before Meza allegedly admitted to him that he was testifying falsely against Ayala, and it is unclear why Meza would have chosen to confide in Savocchio; (2) Savocchio's testimony that he knew almost nothing about prison gangs despite spending most of his life in prison may have appeared unbelievable; (3) Savocchio had a number of prior convictions; and (4) Savocchio admitted that he lied to prison officials to get transferred to another prison. For these reasons, defense counsel had good reason to question whether the jury would have believed Savocchio and thus whether Savocchio's testimony would have effectively impeached Meza. And calling Savocchio to testify entailed the certain, if unquantifiable, risk that the prosecutor's cross-examination would concretely link Ayala to the Mexican Mafia. We have held that when "the risks associated with calling [certain witnesses] to testify outweighed the potential benefits ... it is reasonable to conclude that counsel wasn't ineffective in failing to call" those witnesses. Zapien v. Martel, 805 F.3d 862, 870 (9th Cir. 2015).
The California Supreme Court denied this claim because it reasoned that defense counsel believed their "victory regarding mention of gangs" was intact even after Rafa recanted. See Ayala, 96 Cal.Rptr.2d 682, 1 P.3d at 33. We agree that defense's "no-gang" plan was probably preserved to some degree, but we also acknowledge that Rafa's recantation left the defense scrambling. Outside of the jury's presence, defense counsel sought a continuance because Rafa's changed testimony altered "the entire complexion of the case." But the defense ultimately elected not to abandon the "no-gang" strategy and we cannot find statements in the state court record in which counsel or the court acknowledged that Rafa's testimony revealed Ayala's gang affiliation to the jury.
We owe considerable deference to the California Supreme Court under the standards dictated by AEDPA, see Glebe, 135 S.Ct. at 430, and the California Supreme Court owed considerable deference to defense counsel under the standards dictated by Strickland, see Harrington, 562 U.S. at 105, 131 S.Ct. 770. There is room for fairminded jurists to disagree about whether defense counsels' decision not to call Savocchio to testify fell below an objectively reasonable standard of care. See id. at 103, 131 S.Ct. 770. More to the point, even if we agreed with the district court that the California court's analysis of Savocchio's testimony was internally inconsistent and therefore unreasonable under AEDPA, we also agree with the district court that,
On de novo review we consider evidence the parties elicited at the 2010 evidentiary hearing. See Crittenden, 804 F.3d at 1010. This evidence substantially undermines Ayala's Savocchio-based IAC claim. In 2010, Savocchio admitted that he did owe a debt to someone affiliated with the Mexican Mafia around the time of Ayala's trial. Savocchio testified at the evidentiary hearing that he embellished the details of his connection to the Mexican Mafia in the 1980s to secure the transfer to another prison, but he denied that he wholly invented his fear of the gang. It is impossible to know which version of history Savocchio would have told if defense counsel had called him to testify at trial, but if Savocchio told the jury that his fear of the Mexican Mafia was real — which is what he said during the 2010 hearing — the prosecutor surely would have asked whether this fear motivated him to testify on Ayala's behalf. Even after Rafa recanted, this line of questioning would have damaged Ayala in two ways: (1) the jury would have had another reason to disbelieve Savocchio; and (2) it would have crystalized the impression that Ayala was a dangerous gang member thereby suggesting guilt by association.
Defense counsel also testified at the 2010 hearing. Lead counsel confirmed that she initially chose not to call Savocchio because she was unsure whether his testimony would open the door to damaging gang affiliation evidence:
Lead counsel explained that she reviewed Savocchio's prison file with him before the 1988 in limine hearing, and although she lacked specific recollection of her pre-trial meeting with Savocchio, she surmised that she was aware of his debt to someone connected with the Mexican Mafia.
Counsel acknowledged at the 2010 hearing that she would have pursued a different trial strategy if she had known Rafa was going to recant. But as we have observed, counsel could not have known this would happen; indeed, Rafa's recantation was a devastating development for the defense because it came so late in the trial and counsel built their defense on a "no-gang" strategy. From the outset, the defense team prepared with the aim of keeping evidence of Ayala's gang affiliation from the jury. This meant that the defense team did not extensively voir dire the jury on their attitudes about gangs because they did not want to suggest that the 43rd Street murders were gang related. It also meant the defense did not present expert testimony to explain the distinction between prison gangs and street gangs, or that Ayala's gang was different from those that terrorized southern California in the mid-1980s. After Rafa recanted, the defense requested and received a continuance to regroup. It considered abandoning its "no-gang" strategy, but it had no voire dire record from which to predict how the jury would react and no expert testimony that might have allowed it to contextualize Ayala's participation in the Mexican Mafia. Worse, shifting strategies would have forced counsel to admit to the jury that the defense withheld key facts about Ayala's gang-involvement. Ayala does not explain how defense counsel could have completed such a maneuver without ruining her credibility with the jury, and Ayala's own Strickland expert acknowledged that
In sum, we agree with the district court that the initial decision not to present Savocchio's testimony did not fall below an objective standard of reasonableness. See Bemore, 788 F.3d at 1163 ("[A] tactical decision may constitute constitutionally adequate representation even if, in hindsight, a different defense might have fared better."). We also agree with the district court's analysis of counsel's decision not to reopen the defense case after Rafa testified. In light of the risks and difficulties presented by pivoting away from a "nogang" strategy, the decision not to make such a dramatic transition did not fall below an objectively reasonable standard of care. Indeed, a holding to the contrary would be the type of "Monday morning quarterbacking" Strickland prohibits. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (reviewing courts must "eliminate the distorting effects of hindsight"). Habeas relief is not warranted on this claim.
Ayala also argues that trial counsel was ineffective for failing to impeach: (1) Meza by calling inmate Raul Garcia to testify that Meza admitted to knowing nothing about the 43rd Street murders; and (2) Castillo, with evidence that he solicited Juan Mendez (and possibly Luis "Bobo" Garcia) to kill victim Zamora in the months before the murders.
Ayala did not name these "other witnesses" in his Exhaustion Petition or in the declarations he filed with the California Supreme Court. There, he alleged only that counsel was ineffective for failing to impeach Meza with evidence that he "had confessed to numerous witnesses, including Richard Sovacchio [sic] among many others-known to Petitioner's counsel" that he had no idea wither Petitioner had actually participated in the 43rd street murders. Similarly, Ayala's Exhaustion Petition and the supporting declarations alleged only that counsel was ineffective for failing to impeach Castillo with evidence that he "had, prior to the murders, solicited two different witnesses to kill victim Zamora." Under Pinholster, we review these IAC claims as Ayala presented them to the California Supreme Court. 563 U.S. at 187 n.11, 131 S.Ct. 1388 ("Even if the evidence adduced in the District Court additionally supports [a claim presented to the state court], we are precluded from considering it."). Therefore, we do not consider evidence that specific individuals — including Raul Garcia, Mendez, and Luis Garcia — were willing to testify on Ayala's behalf in 1988. See id. at 181, 131 S.Ct. 1388 ("[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.").
Ayala also argues that defense counsel failed to independently investigate the gang affiliation of numerous witnesses before deciding not to call them. He claims defense counsel entered "into an agreement with the prosecution, whereby counsel provided to the prosecution the names of [Ayala's] prospective witnesses, and would agree not to call certain witnesses upon receiving any representation or threat from the prosecution of possible gang-related affiliations relating to that witness."
Ayala correctly argues that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). But the record before the state court does not support Ayala's claim that his lawyers abdicated this duty. Instead, it shows that counsel located potential witnesses and sought access to their prison files before deciding whether to call them to testify. For example, counsel reviewed Savocchio's prison file before he testified at the in limine hearing. And counsel stated during pretrial hearings that she subpoenaed "department of corrections' files" for key witnesses in part to learn whether those witnesses were gang-affiliated. The trial court ordered the State to turn over "[a]ll notes or memoranda, handwritten or typed, by an investigating officer, peace officer, or deputy district attorney of their conversations with any witnesses which is relevant to said witness[es]' credibility," and one of the district attorneys confirmed that her office delivered this discovery, including requested prison files, to the defense team. Because of these efforts by defense counsel, Ayala's case is unlike Thomas v. Chappell, a pre-AEDPA case where we granted relief because the defense "conducted no investigation for supporting witnesses or corroborating evidence outside" the community in which the murder took place (and in which petitioner lived), despite sworn testimony that the victims and another suspect came from a different community. 678 F.3d 1086, 1096 (9th Cir. 2012); see also id. at 1104 (counsel's "failure to call [the witness] cannot be excused as a tactical decision because [counsel] did not have sufficient information with which to make an informed decision"). Ayala's defense team opted against calling some potential witnesses; it did not overlook them.
To the extent Ayala argues that his lawyers performed deficiently because they relied to some degree on the prosecution's information about potential witnesses, that argument is also without merit. Defense counsel was concerned not only with what prospective witnesses'
But even if we reviewed this claim de novo, Ayala would not be eligible for relief. Defense counsel confirmed during the 2010 evidentiary hearing that she purposely chose not to call many witnesses, including Raul Garcia and Mendez, because those witnesses were or had been gang affiliated. Exhibits Ayala introduced at the 2010 hearing show that counsel investigated these witnesses to evaluate potential exposure to harmful gang affiliation evidence. For example, Ayala submitted defense counsel's pre-trial notes in which she described her impressions of Raul Garcia: "Claims he was approached by Meza to make up a story about the killings. He knows Ronnie well. My reading between the lines is that this is possible B.S. and he is very impeachable re relationship with Ronnie." Cf. Cannedy v. Adams, 706 F.3d 1148, 1160-61 (9th Cir. 2013) (granting relief when uncontradicted evidence showed that trial counsel failed to interview a key witness). Ayala also introduced notes from defense counsel's pretrial interviews with Juan Mendez in which she wrote that Mendez "ha[d] been reported in his prison file [as] ... EME affiliated," that Mendez knew Ayala from the prison gang, and that Mendez had done favors for the gang during his time in prison. These notes show that trial counsel's decision not to call "numerous witnesses" was consistent with her trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Relief under Strickland is not available.
Finally, Ayala asks us to stay his federal proceedings so he can seek reconsideration of his IAC claims in the California Supreme Court. See Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011) (staying federal case to give petitioner the opportunity to present to the state court evidence first adduced in federal court). In particular, Ayala seeks the chance to submit in state court evidence he first presented in the federal proceedings, including evidence that Juan Mendez, Raul Garcia, and Luis Garcia were willing to testify on Ayala's behalf in 1988. But the district court held an extended evidentiary hearing on Ayala's IAC claims, and its lengthy and well-reasoned order concluded that Ayala's petition failed even in light of this newly presented evidence. See Ayala v. Chappell, No. 01CV0741-BTM, 2013 WL 1315127 (S.D. Cal. Mar. 28, 2013). We agree with the district court that the 2010 evidence does not strengthen Ayala's IAC claims, and we decline Ayala's invitation to stay his federal case.
Ayala argues that de novo review of his Strickland claims is warranted because the state court's fact-finding process was deficient. He requested an evidentiary hearing in his initial state habeas corpus petition, which the California Supreme Court summarily denied in June 2000, and in his Exhaustion Petition, which the California Supreme Court summarily denied in September 2003. Ayala raised his IAC claims in both state court petitions, and he now argues that it was unreasonable for the California Supreme Court to resolve these claims without first granting him an evidentiary hearing. We disagree.
We have recognized that a state court's decision may be based on an "unreasonable determination of the facts," 28 U.S.C. § 2254(d)(2), if "the [fact-finding] process employed by the state court [was] defective," Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004); see also Woods, 764 F.3d at 1128. "To find the state court's [fact-finding] process defective ... `we must more than merely doubt whether the process operated properly. Rather, we must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate.'" Hurles, 752 F.3d at 778 (citation omitted). A state court's denial of a petitioner's request for an evidentiary hearing does not necessarily render its fact-finding procedure defective. Woods, 764 F.3d at 1128 (concluding that it "was not unreasonable for the Washington Supreme Court to deny Woods's request for a[n evidentiary] hearing"); see also Harrington, 562 U.S. at 97, 131 S.Ct. 770 (denying relief on an IAC claim where the California Supreme Court did not grant petitioner an evidentiary hearing).
Turning first to Ayala's Savocchio-based IAC claim, we have no trouble concluding that the California Supreme Court's decision to deny Ayala an evidentiary hearing was not unreasonable. The record before the California Supreme Court included a complete transcript of the trial court's in limine hearing where defense counsel explained her decision not to call Savocchio as a witness. The California court "reasonably concluded that the evidence already adduced was sufficient to resolve" the question of counsel's performance on this score. Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012).
We come to the same conclusion on Ayala's IAC claim based on "other witnesses." As explained, Ayala alleged in his Exhaustion Petition that the defense team's "no-gang" strategy drove their decision not to call numerous other impeachment witnesses, and this remains the crux of his
Ayala's next group of claims arises from Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Ayala argues in these claim, that the State failed to disclose impeachment evidence about its key witness, Juan Meza, who testified at trial that Ayala enlisted him to plan and participate in the 43rd Street murders. Ayala argues the State "failed to disclose specific details of Meza's long history as a prosecution informant, his years-long relationship with Chacon as a snitch, the fact that Meza previously denied having any personal knowledge of the 43rd Street murders, and the full extent of the consideration that Meza received for his testimony against Ayala." The State also allegedly concealed evidence that Detective Chacon orchestrated Meza's decision to come forward to testify nearly two years after the murders. This issue draws from several certified claims (namely, claims 5, 6, and 8), but Ayala focused his argument in our court on uncertified claim 76.
Claim 76 arose from Meza's testimony at the 2010 evidentiary hearing wherein he discussed benefits he received in exchange for testifying against Ayala in 1988. Ayala interpreted this hearing testimony as revealing previously undisclosed evidence about Meza's immunity agreement. Ayala raised claim 76 in his third amended habeas corpus petition, asserting that the State failed to disclose the scope of the immunity Meza received in exchange for his trial testimony. The district court granted the State's motion for summary judgment on claim 76, ruling that the claim was unexhausted and lacked merit.
Brady is the clearly established law governing the state's duty to disclose impeachment evidence favorable to the defense. 373 U.S. at 87, 83 S.Ct. 1194. Brady holds 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." Id. "Evidence favorable to [the] accused" includes evidence that would help a defendant impeach prosecution witnesses. See Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). To establish a Brady violation, a defendant must show: "(1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence was suppressed by the government, regardless of whether the suppression was willful or inadvertent; and (3) the evidence
Ayala concedes in his opening brief that claim 76 is unexhausted because it is based on testimony elicited for the first time in federal district court. See 28 U.S.C. § 2254(b)(1)(A); Woods, 764 F.3d at 1129-30. He asks us to review it on the merits because it is closely connected to several of his exhausted, certified claims, but he cites no authority for this proposition and we cannot create any here. Ayala alternatively asks us to stay his federal proceedings so that he may present claim 76 to the California Supreme Court. He bases this request on our decision in Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011).
In Gonzalez, the State concealed critical impeachment documents until petitioner's state post-conviction proceedings were complete, a flagrant and continuing Brady violation. Id. at 976. "Because the suppressed materials substantially strengthened the petitioner's Brady claim, we remanded that portion of the petitioner's case to the district court, with instructions to stay the habeas proceedings until the petitioner had an opportunity to present the new evidence to the California Supreme Court." Thompson v. Runnels, 705 F.3d 1089, 1100 (9th Cir. 2013) (discussing Gonzalez). We stayed Gonzales's federal case, thereby enabling him to present this new evidence in state court, because: (1) the evidence first uncovered in federal court gave rise to a potentially meritorious claim; and (2) the petitioner diligently pursued that evidence in the state court. See Gonzalez, 667 F.3d at 979-80.
Ayala's case is not analogous to Gonzalez because Meza's 2010 hearing testimony did not give rise to a potentially meritorious Brady claim. The State disclosed Meza's written immunity agreement to defense counsel before Ayala's trial in 1988, and the agreement was admitted as a trial exhibit. The agreement showed that Meza testified against Ayala in exchange for use and derivative use immunity and a favorable recommendation regarding resentencing on his February 1987 drug conviction. Ayala concedes that the State properly disclosed Meza's written agreement, but he argues that Meza and the State also had a broader unwritten immunity agreement that was undisclosed at trial. According to Ayala, the State verbally guaranteed it would not prosecute Meza for "anything else [that] came up" during Meza's discussions with the district attorneys about Ayala's case, including past assaults, stabbings, and potentially a murder. Ayala also argues that the unwritten agreement guaranteed Meza's immediate release from custody.
The record does not support Ayala's contention that a broad unwritten agreement ever existed. Ayala's lawyer conceded at oral argument that the only evidence of a "sidebar" immunity agreement is Meza's 2010 evidentiary hearing testimony. That testimony consisted mostly of Meza responding "yes" to leading questions from Ayala's lawyer:
Contrary to Ayala's claim 76, Meza also testified that, years before Ayala's trial, the State declined to prosecute him for crimes he committed in prison because "they just couldn't prove it," not because of a sweeping, unwritten immunity deal he received in exchange for testifying against Ayala. The record is likewise inconsistent with Ayala's argument that the State promised Meza immediate release from custody: Exhibits introduced at the 2010 hearing establish that the prosecution requested Meza be resentenced on his February 1987 drug arrest, not that any reduction was guaranteed. This Brady claim also fails because Ayala's trial lawyers knew Meza was testifying in the hope of receiving a reduction in his jail time. Because Meza's 2010 testimony does not persuade us that the State guaranteed Meza immunity or benefits beyond that which it disclosed in 1988, we decline to stay Ayala's federal case, deny claim 76 on the merits, and deny as moot Ayala's request for a COA.
In his certified Brady claims, Ayala argues: (1) "the prosecution failed to disclose all material information regarding its use of jailhouse snitches with known gang affiliations, including but not limited to Juan Meza"; (2) "[t]he prosecution was aware that Juan Meza had a long term informant relationship with Detective Chacon and that in the years preceding the trial Meza had received favors and/or sweetheart deals for a number of criminal offenses, and that said consideration had been instigated by Detective Chacon"; and (3) the State concealed evidence that Chacon and Meza met several times before Meza decided to testify about his role in planning the 43rd Street murders.
The state court record shows that the government did not conceal this information about Meza. In fact, in his Exhaustion Petition, Ayala asserted that defense counsel knew (and failed to use for impeachment purposes) many facts about Meza that Ayala now claims the government suppressed. The Exhaustion Petition averred:
Either counsel knew about these facts and allegations and failed to use them, or the State concealed this information from counsel; Ayala cannot have it both ways.
The trial transcript confirms that counsel knew these facts and allegations. Meza testified outside the jury's presence that he had known Chacon since childhood, and that Chacon frequently visited him in jail. Meza confirmed that Chacon visited him in jail in May or June 1985 but he denied that he and Chacon discussed Meza's involvement in the 43rd Street murders at that meeting. Chacon visited Meza again in February 1987, shortly after Meza was arrested on the unrelated drug charge, and Meza gave Chacon some information about the 43rd Street murders. By April 1987, Meza admitted that he was involved in planning the murders, and by May of that year, Meza told Chacon that he had decided to testify against the Ayalas. Defense counsel questioned Meza about previous "sweetheart" deals he received because of his relationship with Chacon, but Meza repeatedly denied the existence of such deals, and Ayala points to no evidence that other deals were actually made. Because Ayala has not established that the State suppressed the information that underpins his certified Brady claims, the state court's summary denial of them was not unreasonable. See Sedaghaty, 728 F.3d at 899 (to establish a Brady violation, defendant must show that evidence was "suppressed by the government").
Ayala next claims the State violated Brady by concealing evidence that Detective Carlos Chacon had a longstanding bias against the Ayala brothers.
In support of the claim that Detective Chacon was biased against the Ayala brothers, Ayala alleged the following to the California Supreme Court: (1) Chacon had a long-standing personal grudge against the Ayalas stemming from his belief that the Ayalas were involved in the 1977 murder of Chacon's close friend, Eduardo Cruz; (2) Chacon previously accused the Ayalas of "complicity in many murders previous to the 43rd Street murders"; (3) Chacon was related by marriage to the Sosa family, whose gang — Nuestra Familia — was a rival of the Mexican Mafia's; and (4) the district attorneys in charge of Ayala's case considered removing Chacon from the investigation. Ayala submitted a declaration by defense investigator Hart to support these allegations. In it, investigator Hart attested "on information and belief" that Chacon was biased against the Ayalas for each of these reasons.
Ayala's next claim is primarily a due process-based witness intimidation claim. Ayala argues that Detective Chacon intimidated and threatened Rafa and his wife, Jenifer, and that Rafa recanted his testimony in favor of Ayala as a result of the threats and intimidation. Ayala also asserts that the State violated Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by failing to correct Rafa's testimony that Detective Chacon did not threaten him.
As explained, when Ayala initially called Rafa as a defense witness, Rafa's testimony implicated Pete Castillo in the 43rd Street murders and tended to exonerate the Ayalas. Shortly after Rafa testified for Ayala, Detective Chacon visited him in jail, and accused him of lying in court to benefit Ayala. After some discussion about the risks Rafa would face from gangs upon his return to prison, Rafa admitted to Chacon
Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam), is the clearly established law governing claims of witness intimidation by government officials. In Webb, the trial judge strongly admonished a defense witness about the risks of perjury before the witness testified. Id. at 95-96, 93 S.Ct. 351. The judge singled out this witness, telling him:
Id. at 96, 93 S.Ct. 351. The witness chose not to testify. Id. The Supreme Court reversed Webb's conviction because "the unnecessarily strong terms used by the judge could well have exerted such duress on the witness' mind as to preclude him from making a free and voluntary choice whether or not to testify." Id. at 98, 93 S.Ct. 351. Because the judge's remarks "effectively drove that witness off the stand," the judge violated the defendant's due process right to present a defense, and reversal of his conviction was warranted. Id. Under Webb, "[i]t is well established that `substantial government interference with a defense witness's free and unhampered choice to testify amounts to a violation of due process.'" Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005) (quoting United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998)).
The California Supreme Court's rejection of Ayala's witness intimidation claim was not contrary to or an unreasonable application of Webb. See 28 U.S.C. § 2254(d)(1). The California court had before it Rafa's trial testimony and Hart's declaration when it decided this claim. Hart declared "that Detective Chacon threatened, coerced, manipulated and/or intimidated potential and actual witnesses, including but not limited to" Rafa, and alleged that Chacon accomplished this coercion in part by threatening to investigate Rafa's wife Jenifer for smuggling drugs into prison. Standing alone (and taken as true), these allegations could amount to "substantial ... interference" with Rafa's choice to testify. See Earp, 431 F.3d at 1170. But Hart's declaration does not provide sources for its conclusions, and it was directly contradicted by Rafa's 1988 trial testimony that Chacon did not threaten him. Rafa denied that Chacon told him he was on a hit list and testified that he always knew his life was in danger because of his involvement with gangs. He told the jury "[t]he only thing [Chacon] said [was]... `I don't see why you're helping these people out when you know' — `they' — you know, `they don't care about you,' you know." Rafa also denied that Chacon threatened Jenifer as a way of pressuring him to recant. Rather, he explained that he originally testified for the defense as a favor, but was motivated to recant because, despite his promise to testify, people associated with Ayala tried to engage Jenifer in illegal activity:
Defense counsel vigorously cross-examined Rafa about whether Chacon threatened or intimidated him into recanting his testimony, but Rafa consistently denied that this was the case. With nothing to support Hart's allegations, the California court did not unreasonably apply Webb when it rejected Ayala's witness intimidation claim.
Nor did the California Supreme Court misapply federal law when it rejected Ayala's Napue claim. See Napue, 360 U.S. at 269, 79 S.Ct. 1173 ("[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment."). Ayala only offers Hart's declaration to buttress the allegation that Rafa lied in his recanted testimony, and, as discussed, Rafa's testimony refutes this charge. The California Supreme Court reasonably denied this claim.
Ayala argues that the trial court committed several other errors that deprived him of certain federal constitutional rights. We address each alleged error in turn.
Ayala argues that the trial court committed constitutional error when it declined to strike juror Cosgrove for cause.
Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), is the clearly established law applicable to this biased-juror claim. Morgan holds that "[a] defendant has a constitutional due process right to remove for cause a juror who will automatically vote for the death penalty." See United States v. Mitchell, 502 F.3d 931, 954 (9th Cir. 2007) (citing Morgan, 504 U.S. at 719, 112 S.Ct. 2222).
The California Supreme Court's rejection of this claim was not contrary to or an unreasonable application of Morgan because juror Cosgrove was not an automatic death penalty voter. Cosgrove told counsel during voire dire that he "would probably be 80 percent to 20 percent saying that if [he] felt that somebody did commit murder, that the death penalty should be applied," but he also said that "if there were mitigating circumstances, [he] would take them into effect and weigh them." Habeas relief is not warranted on this claim. See Mitchell, 502 F.3d at 955 (affirming on plain error review
Ayala argues that the trial court violated his constitutional right to present a defense when it excluded under California's hearsay rules the exculpatory statements of a deceased witness, Arthur Castro.
During trial, Ayala moved to admit statements that Castro made to defense investigator Bill Papenhausen. The defense proffered Papenhausen to testify that Castro heard two people arguing in Spanish with Dominguez about a large sum of money on the day before the murders, and that Castro later saw "three males driving away in a large car with blue and white Mexican plates." The trial court denied Ayala's motion to admit Papenhausen's testimony under California's residual hearsay rule. See Ayala, 96 Cal.Rptr.2d 682, 1 P.3d at 28-29. The California Supreme Court affirmed this ruling on direct review, see id. 96 Cal.Rptr.2d 682, 1 P.3d at 27-30, and the district court denied federal habeas relief.
Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), is the applicable "clearly established Federal law." See 28 U.S.C. § 2254(d)(1). In Chambers, the Supreme Court held that a state court may not prohibit a defendant from presenting directly exculpatory evidence when the evidence is essential to the defendant's case and bears sufficient indicia of reliability. See 410 U.S. at 300-01, 93 S.Ct. 1038. The facts in Chambers were extreme: After police officers arrested Leon Chambers for murder, his friend, Gable McDonald, confessed to three different people that he, not Chambers, committed the crime. Id. at 288-89, 93 S.Ct. 1038. The trial court prohibited Chambers from presenting the testimony of these three witnesses under a Mississippi common-law evidentiary rule. Id. at 289, 93 S.Ct. 1038. Without this evidence, the jury convicted Chambers of murder. Id. at 285, 93 S.Ct. 1038. The Supreme Court reversed the conviction, holding "the exclusion of this critical evidence ... denied [Chambers] a trial in accord with traditional and fundamental standards of due process." Id. at 302, 93 S.Ct. 1038. The Court rejected Mississippi's argument that McDonald's prior confessions were hearsay and therefore unreliable because the confessions bore substantial indicia of reliability: they were against McDonald's penal interest, corroborated by other evidence, spontaneous, and McDonald was available for cross-examination. Id. at 300-01, 93 S.Ct. 1038.
In his closing arguments, the prosecutor told the jury that several witnesses, including Meza, Castillo, Rafa, and Eduardo "Lalo" Sanchez,
Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), is the relevant clearly established federal law. In Darden the Court "explained that a prosecutor's improper comments will be held to violate the Constitution only if they `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2153, 183 L.Ed.2d 32 (2012) (quoting Darden, 447 U.S. at 181, 100 S.Ct. 2069). Darden creates
The California Supreme Court's rejection of Ayala's misconduct claim was not an unreasonable application of Darden because the prosecutor's statements that several witnesses feared Ayala were reasonably drawn from the witnesses' testimony. See Trillo v. Biter, 769 F.3d 995, 1002 (9th Cir. 2014) (prosecutors are entitled to make reasonable inferences from the facts). Castillo told the jury that he "had worries, concern for my family. There was just three people shot, and I was shot and almost killed.... There was some people out there that actually kill people." Rafa told the jury that he originally testified for Ayala in part because "I was afraid that if I, you know, didn't want to cooperate with them ... I might, you know, get killed or something." Meza likewise explained that, although he helped plan the 43rd Street robbery, he did not participate because he feared the Ayalas would use the opportunity to kill him.
Also, the prosecutor's closing argument adhered to the trial court's order concerning the admissibility of gang affiliation evidence. He did not mention gangs, the Mexican Mafia, or the EME, but instead argued that witnesses were afraid of "what the defendant stood for" and "those with whom the defendant associates." The jury could have understood these statements to mean that Ayala was a gang member, but it also could have understood them to mean that witnesses feared Ayala simply because he had been accused of triple murder. The prosecutor's comments about fear and association were not so prejudicial that they undermined the fundamental fairness of Ayala's trial. "Indeed, Darden itself held that a closing argument considerably more inflammatory than the one at issue here did not warrant habeas relief." Parker, 132 S.Ct. at 2155; Darden, 477 U.S. at 180 nn.9-11, 106 S.Ct. 2464. Habeas relief is not warranted on this claim.
Nor was it unreasonable for the California Supreme Court to reject Ayala's related IAC claim. Counsel "was not constitutionally ineffective for failing to object to the prosecutorial statements ... [because t]hose statements were based on reasonable inferences from the record." See Trillo, 769 F.3d at 1002; see also Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) ("[A]bsent egregious misstatements, the failure to object during closing argument and opening statement is within the `wide range' of permissible professional legal conduct." (quoting United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993))).
In the penalty phase, the trial court permitted the State to submit evidence that, nearly ten years before trial, Ayala murdered an inmate named John Casas while the two were incarcerated together.
Habeas relief is not warranted on this claim because Ayala has not shown he
Ayala next argues that the cumulative impact of his lawyers' deficiencies, the State's Brady violations, Detective Chacon's intimidation of witnesses, and the trial court's errors requires reversal of his conviction.
Ayala's final claim is that he is actually innocent of these murders.
For the foregoing reasons, we affirm the district court's denial of Ayala's petition for writ of habeas corpus.
