ANTHONY W. ISHII, District Judge.
Petitioner is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Nina Rivkind, Esq., California Bar Number 79173, and David Harshaw III, Esq. of the Office of the Federal Defender.
Respondent Kevin Chappell
Before the court for a decision on the merits is the petition (ECF No. 38). Also before the Court are Petitioner's motions for evidentiary hearing (ECF No. 120) and to preserve testimony (ECF No. 150).
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by court trial on August 3, 1988 of the first degree murders of Juan Bocanegra ("Mr. Bocanegra") and Juanita Bocanegra ("Mrs. Bocanegra") (Cal. Pen. Code § 187), and of the separate (non-capital) first degree murder of Woodrow Tatman ("Mr. Tatman") (Cal. Pen. Code § 187). The multiple-murder special-circumstance allegation (Cal. Pen. Code § 190.2, subd. (a)(3)) as to the murders of Mr. Bocanegra and Mrs. Bocanegra was found true. The trial court also found Petitioner used a deadly and dangerous weapon in the murders of the Mr. Bocanegra and Mrs. Bocanegra (Cal. Pen. Code § 12022, subd. (b)), and that Petitioner was guilty of the robbery of Mr. Tatman. (Cal. Pen. Code § 211.)
On September 21, 1988, a penalty phase jury was empaneled. During the penalty phase, the prosecution introduced evidence (see Cal. Pen. Code § 190.3) that in 1982 Petitioner was involved in the use of, or attempted use of, force or violence against a store owner, Mr. Ammarie, and against a friend, Mr. Pena. Defendant in turn offered evidence of his dysfunctional and impoverished upbringing and use of drugs and alcohol and mental issues and conditions.
On October 6, 1988, the jury returned a verdict of death. On October 31, 1988, the trial court denied Petitioner's motion to modify the verdict (Cal. Pen. Code § 190.4) and sentenced Petitioner to death for aiding and abetting the stabbing deaths of Mr. & Mrs. Bocanegra; to 25 years to life for the Tatman murder; to 5 years for the Tatman robbery; and to 2 years for the weapon enhancement.
On December 14, 1995, the California Supreme Court affirmed the judgment and sentence on direct appeal.
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The state petition was summarily denied on October 22, 1997.
On September 17, 1998, Petitioner filed his federal petition for writ of habeas corpus arguing insufficient evidence, actual innocence, prosecutorial misconduct and ineffective assistance of counsel based on allegations he did not assist Joey Bocanegra ("Joey") in killing Mr. Bocanegra, Joey's father, and that his assistance in the murder of Mrs. Bocanegra, Joey's mother, does not make him eligible for the death penalty.
Respondent filed an answer on October 19, 1998 and an amended answer on February 8, 1999, admitting jurisdictional and procedural allegations (except paragraphs, 1, 16, 18-20), asserting procedural defenses, and denying all claims 1 through 61.
On December 9, 1998, the Court found all claims to be fully exhausted.
On April 5, 1999, Petitioner filed a memorandum of points and authorities in support of the petition. On July 1, 1999, Respondent filed a memorandum of points and authorities in support of his answer. On August 16, 1999, Petitioner filed a reply to Respondent's memorandum.
Petitioner was granted discovery of law enforcement records relating to: the Bocanegra crime scene, Petitioner's jail records, jailhouse informants Charles Seeley ("Seeley") and Rufus Hernandez ("Hernandez"), and coroner Dr. Holloway's autopsy notes. Petitioner was also authorized to take the deposition of Kern County District Attorney Investigator Dwight Pendleton regarding Seeley, and the deposition of Bakersfield Police Detective Stratton regarding Hernandez's heroin use.
Petitioner's request to expand the record was granted (ECF No. 134) for Exhibits 144-151 (declarations), Exhibits 421-434 (law enforcement records), Exhibits 527-528 (depositions), Exhibits 529-532 (Kern County court records), Exhibits 604-608 (Kern County jail records), and Exhibits 818-819 (other documents regarding Charles Seeley). Expansion of the record was denied for Exhibits 524-526 (court orders), but with judicial notice to be taken of proceedings in the Northern District of California in
Petitioner filed a motion for evidentiary hearing on March 18, 2003 (ECF No. 120), seeking a hearing on forty-one of the sixty-one claims in his petition, twenty-six guilt and special circumstance phase claims and fifteen penalty phase claims.
On March 3, 2004, Petitioner filed a second motion to expand the record to rebut Respondent's arguments in opposition to the motion for evidentiary hearing. The motion to expand the record was granted on September 27, 2005 (ECF No. 145) as to the supplemental declaration of defense psychologist, Dr. Froming, and as to records of Mr. Huffman, who was Petitioner's lawyer on unrelated burglary charges.
On June 25, 2014, Petitioner filed a motion to preserve testimony (ECF No. 150), seeking to depose seven witnesses, each of whom filed a declaration in support of instant petition. Petitioner filed a renewed motion to preserve testimony on May 1, 2015.
On May 1, 2015, Petitioner filed a motion requesting a case management conference (ECF No. 159) to discuss the above motion for evidentiary hearing.
On June 23, 2015, Respondent filed a supplemental notice of lodging newly obtained state court documents, California Penal Code § 987.9 records # EE through # QQ, (ECF No. 161), and filed notice of his request to seal lodged documents # II and # QQ, (ECF No. 162).
This factual summary is taken from the California Supreme Court's summary of the facts in its December 14, 1995 opinion. Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state court's summary of facts is presumed correct. Petitioner does not present clear and convincing evidence to the contrary; thus, the Court adopts the factual recitations set forth by the state appellate court.
On the afternoon of February 4, 1987, McGrew noticed that Tatman's drapes were still drawn and that he had not yet picked up his mail, which included his Social Security check. McGrew entered the room and found Tatman's body, lying on the floor near his bed. He was covered with a bedspread. Tatman's television, radio and electric skillet were missing from the room.
The autopsy report indicated that Tatman was killed by "massive blunt force injury to the left chest" which collapsed his left lung and caused substantial hemorrhaging. The blow to the chest was consistent with a heel stomp or with the application of an instrument approximately two inches by three inches in size.
Tatman also sustained several superficial stab wounds to the chest and lower abdomen, as well as a head injury. It appeared that the superficial injuries had been inflicted intra or post mortem, and none contributed to death. It could not be determined what instrument caused the lower abdominal injuries, although it appeared that the chest wounds were inflicted by a screwdriver. Dr. John Holloway, the forensic pathologist who performed the autopsy, could not determine whether the wounds were caused by one or more individuals.
a. Statements Made to Jailhouse Informant Hernandez
Rufus Hernandez was incarcerated with defendant for two months during 1987. He had been charged with receiving stolen property and second degree burglary. Defendant spoke to Hernandez about the Bocanegra murders and Hernandez entered into a plea bargain whereby he received six months in county jail and three years' probation in exchange for his testimony.
Hernandez testified that defendant told him he went with Joey Bocanegra to the Bocanegra house. Hernandez's testimony was inconsistent as to whether defendant said they went with the plan of robbing the Bocanegras or only with the plan of borrowing money from Juan Bocanegra. Defendant waited outside for Joey, but entered the house when he heard Joey and Juan arguing in the hallway. Defendant claimed he tried unsuccessfully to stop the fight by hitting Juan with a curved metal bar. He thereafter threw the bar in the front yard. Defendant did not say whether Joey had stabbed Juan before or after defendant hit him.
Juanita, who heard the commotion from another room, came out of the bedroom yelling. Defendant slipped in a puddle of blood as he jumped over Juan to reach Juanita. He thereafter grabbed Juanita and told Joey that he should "shut up" his mother. Joey then stabbed his mother repeatedly and pushed her into the sewing room, where she was found. Defendant did not tell Hernandez that he did anything other than hold Juanita; instead defendant claimed that he saw Joey stab both victims with a kitchen knife. Defendant ended his story with the comment that after the murders he threw the bar into the front yard, and that the knife was thrown into a canal. Defendant noted that Joey took the television, a toolbox, and his parents' hatchback automobile. Hernandez thereafter reported defendant's statements to police investigator Stratton.
b. Statements Made to Police Investigator Stratton
On February 19, 1987, Stratton met with defendant in the Kern County jail. Defendant had contacted the police through his attorney because he wished to offer statements about the Bocanegra crimes. Before commencing the interview, defendant waived his right to counsel after receiving the admonitions required by
One week later, Stratton again spoke to defendant. At this point, defendant asked Stratton a series of hypothetical questions, including: "What if I was present in the house; what if Joey hit his dad after his dad had refused to give him some money; and what if Joey's dad hit him back and what if Joey got real mad and grabbed a knife and started stabbing his dad; what if Joey's mother didn't know what was happening because she was in another room?"
c. Statements Made to Homicide Detective Boggs
On March 27, 1987, after waiving his Miranda rights, defendant was interviewed about the Tatman murder by Homicide Detective Boggs. Defendant had already been arrested for the Bocanegra murders and agreed to talk to the officer because he believed he could be spending the rest of his life in prison.
Boggs testified that defendant told him he wanted to rob Tatman of his refrigerator because he needed one. Defendant told Boggs that, because he was so intoxicated (from ingesting alcohol and drugs) at the time of the robbery, he could not remember the sequence of events.
According to Boggs, defendant asked Reyes to pry open Tatman's bathroom window with Reyes's screwdriver. Once inside, Reyes removed the contents of Tatman's refrigerator, and defendant moved it to a room next door that had been rented by Vicky Ornalez, a friend of the perpetrators.
Defendant told Boggs that when he returned to Tatman's room, Tatman was awake and Reyes was standing over him with a screwdriver in his hand. Defendant claimed he had no idea why Reyes was acting this way because both men had discussed trying not to awaken Tatman while they removed his property. Reyes then hit Tatman in the chest, pulled Tatman off the bed and onto the floor, and made multiple lunging movements downward with the screwdriver in his hand. Defendant asserted that the bed partially blocked his view, but he nonetheless believed Reyes was stabbing Tatman. After Reyes completed the murder, both defendant and Reyes returned to Vickie Ornalez's room.
d. Defendant's Post-Arrest Comments to Michael Trihey
Michael Trihey was a reporter for the Bakersfield Californian. Prior to trial, he interviewed defendant five times about the charges pending against him. On April 25, 1988, the paper published a Trihey article entitled, Accused Asks for Own Death, System Says No. According to Trihey, defendant told him that he was a "triple murderer" and that the Bocanegras and Tatman were killed for their Social Security checks.
B. Penalty Phase Evidence
The prosecution introduced evidence of defendant's criminal activity involving the use or attempted use of force or violence. (§ 190.3, factor (b).) On May 7, 1982, defendant assaulted store owner Hassan Ahmad Ammarie after defendant asked Ammarie to "get him some bacon" and Ammarie refused. Defendant stabbed Ammarie in the left shoulder and neck. Ammarie was hospitalized for two weeks following the attack.
On June 2, 1982, defendant attacked an acquaintance, Arthur Melendez Pena, after Pena refused to comply with defendant's demand for money.
Several witnesses who had testified at the preliminary hearing also testified at the penalty phase. Homicide Detective Boggs testified defendant had told him that after removing Tatman's possessions to Ornalez's room, he and Reyes "kicked back, drank some whiskey, smoked some dope, ate some food and just relaxed for the rest of the evening." Informant Rufus Hernandez and Police Detective Stratton also testified that defendant told Hernandez that he took an active role in the Bocanegra and Tatman slayings-including beating Juan and Juanita Bocanegra, and beating and assisting Reyes in stabbing Tatman. Stratton repeated Hernandez's statements to him that defendant and Joey Bocanegra went to Juan and Juanita's house and planned to rob them and that Tatman was robbed for his Social Security check. Rose McGrew, the Bakersfield Inn maid, repeated her guilt phase testimony about how she discovered Tatman's body.
With regard to the Bocanegra murders, Hernandez testified that defendant entered the house with a bar and "ran up to Joey's father and grabbed him and held him there until Joey went and got the knife and they just beat him and stabbed him." When Juanita walked out of her sewing room, defendant "rushed" her: "That's when they both started killing her.... They just stabbed her numerous times and hit her in the head a few times with the bar, and the time, at the same time of doing that I guess Joey somehow managed to get her back inside the room, I guess, while he was hitting her...." The prosecution also introduced six color photographs of the victims and forty-eight other color photographs of the Bocanegra and Tatman crime scenes. Criminalist Greg Laskowski testified that the blood splatter in the hallway of the Bocanegra house was consistent with the prosecution's theory that multiple stabbings occurred there.
Defendant's penalty phase evidence consisted of testimony by friends, relatives, and a social anthropologist to the effect that defendant's dysfunctional and poverty-stricken, migratory family life severely hampered his ability to live a productive life. Defendant was rejected by his mother following his birth and was sent to live with his grandparents. When he was three years old, defendant's mother and stepfather unexpectedly wrenched defendant from his grandparents' home to move to Arkansas. Shortly thereafter, defendant's mother left defendant's stepfather, and took defendant and his half-brother to California. Defendant's mother remarried a man with three children, and the couple thereafter had five additional children.
Defendant's mother and his stepfather were alcoholics and drug abusers who were violent with each other and the children. His grandparents, who were often in charge of defendant, also drank heavily and abused drugs. Both defendant's mother and stepfather died in their middle 30's of acute alcoholism. Defendant tried to take care of his siblings, but took drugs to escape his difficult life. He eventually turned to crime because he had no marketable job skills to prepare him for life as an adult.
Penalty phase defense counsel Gary Frank attempted to persuade the jury that defendant should receive a sentence of life without the possibility of parole and "spend the remainder of his life in prison."
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3);
This action was initiated on November 20, 1997. Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply.
Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d);
As a threshold matter, this Court must "first decide what constitutes `clearly established Federal law, as determined by the Supreme Court of the United States.'"
If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of," [the] clearly established Federal law."
"Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case."
Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent.
The AEDPA requires considerable deference to the state courts. "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits," and "evidence introduced in federal court has no bearing on 2254(d)(1) review."
If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court considers that claim de novo.
In this case, many of Petitioner's claims were raised and rejected by the California Supreme Court on direct appeal. However, many of his claims were raised in his state habeas petition to the California Supreme Court, and summarily denied on the merits. In such a case where the state court decision is unaccompanied by an explanation, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief."
When reviewing the California Supreme Court's summary denial of a petition, this Court must consider that the California Supreme Court's summary denial of a habeas petition on the merits reflects that court's determination that:
For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1).
All of Petitioner's claims have been raised to the California Supreme Court and denied on the merits. In addition, some of his claims were denied as procedurally barred. As to those claims, Respondent has argued that California's timeliness rule for state habeas petitions, California's rule barring claims on state habeas that could have been presented on direct appeal, and California's contemporaneous objection rule are all adequate and independent state grounds that bar federal habeas review. The Court will not address procedural default with this order because all of the claims lack merit, and the Court finds the question of procedural default to be relatively complicated in this case.
In claims 1 and 3, Petitioner states that he was convicted and sentenced for the first degree murders of Mr. Bocanegra and Mrs. Bocanegra on insufficient evidence that he acted with deliberation and premeditation,
A federal habeas court reviews challenges to the sufficiency of the evidence by determining whether in "viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
The AEDPA adds another layer of deference over the already deferential
Evidence is sufficient under the due process clause where "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
The state supreme court, on direct appeal, considered claimed insufficiency of the evidence and rejected Petitioner's claim of "wading into [the] fight" and being ineffectual in the assaults; finding instead that the evidence clearly reflects that defendant aided and abetted Joey in killing both Mr. Bocanegra and Mrs. Bocanegra, as follows:
There was also ample evidence of motive. The evidence supports a strong inference that Joey entered his parents' house to rob them. When his father resisted the robbery, Joey was motivated to murder him in order to gain access to both money and tangible goods, including a television set. Substantial evidence supports a finding that Joey believed Juan stood in the way of his plan.
Finally, the trial court could infer from the evidence that the manner of killing tended to demonstrate Joey acted with premeditation and deliberation. The attack occurred in a series of rooms, indicating that Juan's repeated attempts to break away from his murderers were consistently thwarted by the attackers' relentless pursuit of him, even after he was gravely wounded. A rational finder of fact could infer that the manner of killing, when combined with Joey's retrieval of the knife in the kitchen, and defendant's retrieval of a metal bar used in clubbing a defenseless Juan, is sufficient to support the trier of fact's implied finding that Joey formed the plan to kill his parents during the altercation, located the murder weapon, and along with defendant, deliberately murdered his father. [Citation]
The same evidence supports the trial court's finding that defendant shared Joey's intent and plan to kill Juan, and thus was liable, as an aider and abettor, for Juan's murder. [Citation] The killing of Juan ended after a prolonged knife attack and beating from which Juan attempted to defend himself. Defendant's personal involvement in the murder was substantial. Far from merely acting as a lookout, or beating Juan after he was already dead, defendant was actively involved in assisting Joey in Juan's murder. Defendant's admitted act of arming himself with a curved metal bar before joining the altercation between Joey and Juan indicates he shared Joey's plan. [Citation] From this evidence, the trier of fact could reasonably infer defendant knowingly engaged or assisted in Juan's murder as an aider and abettor. [Citation]
As to Juanita's murder, defendant asserts the evidence similarly does not support the conviction. He claims that he "did not personally kill Juanita [because] she was stabbed to death by Joey." He asserts that there is "no evidence in the record that [he] held Juanita down, helped push her back to the sewing room, or had any contact with her while Joey was stabbing her." He contends that there is no evidence to support the People's theory that defendant aided Joey by hitting Juanita with a bar and that "[t]here is simply no evidence that [his] initial grabbing of Juanita actually aided, or even was intended to aid, Joey's subsequent stabbing of his mother." Finally, defendant asserts in his reply brief that his "efforts to tie and gag Juanita are altogether inconsistent with an intent to kill her."
Again, the evidence supports the court's verdicts and refutes defendant's contention. Hernandez testified defendant told him that during the murder of Juan, Juanita screamed. Defendant grabbed Juanita and told Joey to "shut her up." Joey then stabbed his mother 26 times. A bloodstained garment was wrapped around Juanita's neck, and her wrists had been tied together with a piece of fabric. The pathologist (Holloway) opined that Juanita died of the stab wounds and that the ligature constriction of her neck was a possible contributing cause. She also had severe scalp injuries that Holloway concluded were consistent with those inflicted by a long bar or pipe less than one-half inch in diameter, similar to the instrument used by defendant to inflict Juan's scalp wounds. The trial court could reasonably infer from the evidence that Juanita was killed in order to keep her from being a percipient witness to the murder of her husband. Thus, viewing the evidence in the light most favorable to the People, we conclude a "rational trier of fact" could have been persuaded "that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse." [Citation] Defendant's participation in Juanita's murder, like his aiding and abetting in Juan's killing, clearly supports a finding that defendant aided and abetted her murder. [Citation]
Under California law, "[m]urder is the unlawful killing of a human being . . . with malice aforethought." Cal. Pen. Code § 187, subd. (a). "[A]ll murder which is perpetrated . . . by any kind of willful, deliberate, and premeditated killing . . . is murder of the first degree . . . ." Cal. Pen. Code § 189;
A person "aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime."
The state court could reasonably have concluded that the fight with Mr. Bocanegra resulted from pursuit of the joint motive of Joey and Petitioner to obtain money from Mr. Bocanegra, the stated reason for their going to the Bocanegra home. (See Clerk's Transcript on Appeal, hereinafter "CT", 502-504.) After the murders, in furtherance of this motive, Petitioner assisted Joey in removing property from the Bocanegra home (CT 484.) Some of this property was later found in Petitioner's room, or sold by him. (Reporter's Transcript on Appeal, hereinafter "RT", 25-29, 35-37, 67-69.)
Petitioner disclaims premeditation and deliberation in the murders, claiming Joey, and by extension Petitioner, acted rashly and on impulse. But the extended nature and duration of the struggles with Mr. Bocanegra and Mrs. Bocanegra, with Joey taking time to get a kitchen knife (CT 504; RT 2854), and Petitioner attempting to subdue and restrain each of the victims during Joey's assault on them, seeing Joey stab them, along with the multiple stab and blunt force wounds inflicted during room to room struggle with the victims, could reasonably suggest a plan to kill them. (CT112-120; 149-153; 181; 192-194; 357-383; 479-483; 488.) Each victim suffered multiple stab wounds, Mrs. Bocanegra was stabbed at least 26 times and had 6 scalp wounds and Mr. Bocanegra was stabbed at least eight times and had nine scalp wounds. (Id.) Both victims were left unassisted to bleed to death. (CT 112-114, 117-119.) There was evidence Mrs. Bocanegra's wrists had been tied together and that she had been gagged. (CT 113, 149-150, 153.) Jailhouse informant Hernandez consistently testified Petitioner told him that when fighting broke out between Joey and Mr. Bocanegra (CT 479-505), in the hallway (id.; RT 2843, 2852-2853), Petitioner responded by hitting Mr. Bocanegra on the head nine times with a curved bar (CT 479-505; CT 112-114; 117-119), that when Mrs. Bocanegra came out of a back bedroom and started yelling Petitioner grabbed her and told Joey to "shut her up." (CT 483, 488, 504.) Petitioner's claim that it was Joey who stabbed his parents to death (CT 488; RT 121-122), does not undermine evidence above that Petitioner aided and abetted Joey to that end.
The physical evidence is consistent with Hernandez's testimony. The evidentiary record reasonably suggests that Mr. Bocanegra was initially assaulted in the hallway and then murdered in the kitchen (CT 355-381). The coroner, Dr. Holloway, opined Mr. Bocanegra died from multiple stab wounds and that other conditions were the multiple blunt force trauma wounds to Mr. Bocanegra's head (CT 117-119); that Mrs. Bocanegra died from multiple stab wounds and had six wounds to her scalp (CT 112-115;, 153-154); that the scalp wounds were caused by an instrument different from that used to inflict the stab wounds; and that ligature construction was a possible contributing cause. (CT 112-119.)
Both at the preliminary hearing and the penalty phase, Hernandez testified that Petitioner struck Mr. Bocanegra with a bar (CT 479-482, 500-501, RT 2843-2844, 2854), and that he grabbed or "rushed" Mrs. Bocanegra, a witness to Mr. Bocanegra's murder (id.; RT 153, 189) and told Joey to "shut her up" (CT 483, 504; RT 2844). Hernandez testimony that the altercation between Mr. Bocanegra and Joey started in the hallway and moved to the kitchen is consistent with the bloodstain pattern evidence, (CT 355-383; 479, 487-488, 500-501; RT 2843-2845) and other crime scene evidence. (Id.) Petitioner's claim that a third person, Robert Reyes ("Reyes"), was in the house during the murders and may have aided Joey in the murders, is not substantially supported by the evidentiary record. (Id.; CT 131-133)
Petitioner attempts to discount testimony that he intended to rob the Bocanegras prior to their murder. Petitioner correctly notes that the trial court did not find him guilty of robbing the Bocanegras and found the robbery-murder special circumstance untrue on grounds Petitioner's intent to rob arose after the murders. (CT 906; RT 235-237.) Even so, Petitioner has not controverted evidence that he used a metal bar during the murders. (CT 479-482, 500-501, RT 2843-2844, 2854RT 236). The trial court rejected Hernandez testimony, favorable to Petitioner, that Petitioner merely grabbed Mrs. Bocanegra. (CT 483.)
No facts or discrepancies between the testimony and the physical evidence establish or compel the conclusion that Hernandez, by virtue of his alleged substance addiction, his plea deal, or otherwise, was motivated to and did testify falsely or inaccurately. For reasons discussed in claim 7, the state court could reasonably have found Hernandez received no undisclosed sentence concession in return for his testimony. (State Habeas Corpus Petition, hereinafter "SHCP", Ex. 900, pp. 4, 11; State Court Response to Petition, hereinafter "SResp.", Ex. B.)
The state court could reasonably conclude that Petitioner, sharing Joey's motive of obtaining money from Mr. Bocanegra, took Joey's side in the struggles with Mr. Bocanegra and Mrs. Bocanegra, verbally assisting and encouraging him and physically restraining and assaulting both victims. Petitioner's statements to Hernandez, Detective Stratton and reporter Trihey, and the physical evidence in the Bocanegra home are evidence of his guilt. Any inconsistencies in Hernandez's preliminary hearing testimony and his penalty phase testimony are not substantially material or probative of and do not preclude the possibility of his guilt and sentence to death.
Moreover, Petitioner inculpated himself in the murders. He asked Bakersfield detective Stratton "what if [he] was present at the Bocanegra home during the murders." (CT 77-78). He told newspaper reporter Trihey he was a "triple murderer." (RT 16-18.)
A rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt based on the evidence in the record. The state court's denial of these claims was not contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d);
In claims 2 and 4, Petitioner claims actual innocence of the first degree murders of Mr. Bocanegra and Mrs. Bocanegra based on evidence existing before trial and later discovered evidence, such that his conviction and sentence represent a fundamental miscarriage of justice violating the Fifth, Sixth, Eighth and Fourteenth Amendments.
The showing required for a free standing claim of actual innocence, i.e., a claim irrespective of constitutional error at trial or sentencing, is "extraordinarily high" and must be "truly persuasive."
In
"The petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."
California law requires an aider and abettor to share the specific intent of the perpetrator.
The California Supreme Court denied these claims as raised in Petitioner's state petition for habeas corpus (State Petition for Habeas Corpus, hereinafter "SHCP" or "SPet.", Claims A & B), to the extent they duplicated sufficiency of evidence claims rejected on appeal. To the extent Petitioner's actual innocence claims are free standing claims based on the state record, they fail for the reasons stated in claims 1 and 3. To the extent these claims are free standing claims based on alleged newly discovered evidence, the claims not cognizable (see
The actual innocence claims also fail as gateway claims because it is not likely any reasonable juror would have reasonable doubt that the essential elements of the criminal counts could have been found beyond a reasonable doubt. Petitioner's statements to jailhouse informant Hernandez, Detective Stratton and reporter Trihey, and the physical evidence in the Bocanegra home all are substantial evidence of his guilt.
Hernandez's testimony at both preliminary hearing and penalty phase that the altercation between Mr. Bocanegra and Joey started in the hallway and moved to the kitchen is consistent with the bloodstain evidence. (CT 355-383; 479, 487-488, 500-501; RT 2843-2845) and other crime scene evidence. (CT 355-380.) His preliminary hearing testimony that Petitioner heard Joey and Mr. Bocanegra arguing, "walked into the house, tried to break `em up" (CT 479) and that he (Petitioner) hit Mr. Bocanegra with the bar is not materially inconsistent with Hernandez's penalty phase testimony that Petitioner grabbed and held Mr. Bocanegra until Joey got the knife and that Petitioner beat Mr. Bocanegra with a bar.
Hernandez testimony at the preliminary hearing and the penalty phase was consistent that during Joey's struggles with Mr. Bocanegra, Petitioner struck Mr. Bocanegra with a bar (CT 479-482, 500-501, RT 2843-2844, 2854), and that he grabbed or "rushed" Mrs. Bocanegra and told Joey to "shut her up" during his struggles with Mrs. Bocanegra (CT 483, 504; RT 2844). Petitioner saw Joey wield a knife during these assaults. (CT 483, 487-489, 504; SPet. Ex. 419, 5, 17; RT 121-122.) Mr. Bocanegra and Mrs. Bocanegra succumbed to the multiple stab wounds. (CT 112-119.)
As to the Tatman homicide, Hernandez's preliminary hearing testimony that Petitioner and Joey "hit a black guy in an alley" (CT 488, 497-99) is not, as Petitioner alleges, inconsistent with penalty phase testimony that Petitioner and two other men entered Mr. Tatman's room at the Bakersfield Inn, and beat him, and the other two stabbed Mr. Tatman with a screwdriver, and that they took Mr. Tatman's money. There is no evidence Hernandez's testimony at the preliminary hearing related to the same incident he testified to at the penalty phase.
Petitioner's assertion that there were actually 3 non-victim shoeprints in the kitchen where Mr. Bocanegra was murdered, so as to implicate Reyes in the Bocanegra murders is not sufficiently supported in the record. As discussed in claims 8 and 10, post, the state court could reasonably have found that the bloodstain evidence and testimony of Hernandez contradicts jailhouse informant Seeley's account that Petitioner observed Mr. Bocanegra's murder from the hallway.
No facts or discrepancies between the testimony and the physical evidence establish or compel the conclusion that Hernandez, by virtue of his alleged substance addiction, his plea deal, or otherwise, was motivated to and did testify falsely or inaccurately. (See claim 7, ante.) Petitioner has not demonstrated Hernandez received undisclosed sentence concession(s). (SPet. Ex. 900, pp. 4, 11; SResp. Ex. B.)
In contrast, the testimony of jailhouse informant Seeley inculpating Reyes in the murders, is inconsistent with the physical evidence. Seeley's testimony that the altercation with Mr. Bocanegra started and ended in the kitchen (SPet. Ex. 419, pp.5-6, 17-20) is not reasonably consistent with the blood stain patterns that suggest the assault on Mr. Bocanegra began in the hallway. (CT 355-383.)
The physical evidence, Petitioner's statements to Detective Stratton, and Petitioner's statements to Reporter Trihey are not persuasive of actual innocence for the reasons discussed in claims 10, 12, 15 and 27, post.
Petitioner alleges his severe neurological and psychiatric impairments precluded him from planning the murder and carrying out the plan. But as explained in claim 6, there is no sufficient evidence that Petitioner suffered from neurological or psychiatric impairment precluding, as an aider and abettor, his knowingly and intentionally assisting Joey in the Bocanegra murders.
Finally, Petitioner's assertion that he merely restrained Mrs. Bocanegra is nonetheless sufficient to support a first degree murder conviction as an aider and abettor, especially given that Petitioner had just observed Joey stab his father to death. (CT 483; RT 2843-2854.) It could reasonably be concluded that Petitioner's restraining Mrs. Bocanegra just after Mr. Bocanegra's murder satisfied the requirement that an aider or abettor knows the full extent of the perpetrator's criminal purpose and gives aid to facilitate the commission of the crime.
For the reasons stated, a fair-minded jurist could conclude it unlikely any reasonable juror would have reasonable doubt that the essential elements of the criminal counts against Petitioner could have been found beyond a reasonable doubt.
The California Supreme Court's denial of these claims was not contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
In this claim Petitioner alleges that the California Supreme Court committed appellate review error by making an unconstitutional change in the definition of first degree murder (Cal. Pen. Code 189) violating the Fifth, Sixth, Eighth and Fourteenth Amendments.
A defendant has a due process right to fair notice of the elements of the crime for which he was convicted.
A state's capital punishment scheme must "minimize the risk of wholly arbitrary and capricious action."
Absent specific constitutional error, federal habeas review is limited to determining whether the state supreme court's statutory review was "so arbitrary and capricious as to constitute an independent due process or Eighth Amendment violation."
Petitioner contends that the state supreme court retroactively eliminated the distinction between intentional first and second degree murders. He reasons this is so because, prior to his appeal, California law required that premeditated and deliberated first degree murder be shown to be the "result of careful thought and weighing of considerations," and that conversely "a sudden killing in the course of an argument and struggle" would not be premeditated and deliberated murder.
The state supreme court denied this claim when raised in "supplement to existing habeas corpus petition" (claim ZZ),
The Court finds that, contrary to Petitioner assertion, and for the reasons discussed in claims 1-4, the state court's analysis could reasonably rely upon evidence before it of a pre-existing motive to obtain money from Mr. Bocanegra, involving a joint criminal design of multiple and prolonged stab wounds, aided and abetted by Petitioner's participation with the metal bar, sufficient to find premeditation and deliberation both by Joey and Petitioner.
This Court does not find the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution,
In claims 6 through 18, Petitioner alleges various instances during the guilt and special circumstance phase where defense counsel provided ineffective assistance.
Eugene Toton ("Toton") was appointed as lead defense counsel. Gary Frank ("Frank") was appointed as defense co-counsel. By their agreement, Toton was responsible for the guilt and special circumstance phase and Frank was responsible for the penalty phase. (SHCP Exhs. 113, ¶ 4; 137, ¶ 3.) The record before the state court does not demonstrate that defense attorney Frank performed any substantial defense function during the guilty and special circumstance phase.
The Sixth Amendment right to effective assistance of counsel, applicable to the states through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing phase of a trial.
The Supreme Court explained the legal standard for assessing a claim of ineffective assistance of counsel in
Petitioner must show that counsel's errors were so egregious as to deprive defendant of a fair trial, one whose result is reliable.
The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
However, strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgment.
Second, the petitioner must demonstrate prejudice, that is, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different."
That is, only when "[t]he likelihood of a different result [is] substantial, not just conceivable,"
Under the AEDPA, the Court does not apply
If the petitioner makes an insufficient showing as to either one of the two
In this claim, Petitioner alleges ineffective assistance of counsel by failure to investigate and present evidence of mental state defenses, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
Petitioner raised this claim in his state petition for habeas corpus. (SPet. claim C.) The California Supreme Court summarily denied the claim in a decision unaccompanied by explanation.
Petitioner contends that a reasonable investigation would have revealed his organic brain difficulties and psychiatric impairments relating to childhood abuse and trauma and deprivations and his long history of substance abuse. During the week prior to the homicides, Petitioner alleges he drank alcohol and smoked PCP continually and in large amounts, triggering a post-traumatic stress reaction, precluding his forming an intent to kill and premeditation and deliberation during the Bocanegra homicides. He claims his substance abuse led to long-term brain dysfunction. (SHCP Ex. 114, ¶¶ 67-70.)
The evidence proffered by Petitioner suggests chronic substance abuse beginning as early as 1977. (SPet. Exhs. 105, pp. 64-65, 74-75; 110, p. 1; 119, p. 8; 123, p. 1; and 128, at pp. 1-2.) Petitioner offers evidence that he engaged in substance abuse during the weeks prior to the murders. (SPet. Ex. 105, pp. 85-87.) However, Respondent correctly notes the absence of competent evidence that Petitioner ingested and/or was under the influence of phencyclidine, marijuana, or alcohol on the days the Bocanegra and Tatman murders occurred. Based on the record before it, the state court could reasonably have found that Petitioner was not under the influence of phencyclidine (PCP), marijuana, or alcohol at the time of the Bocanegra and Tatman murders.
The state court could have reasonably concluded that Petitioner' statements to jailhouse informant Hernandez (CT 479-484, 487-489, 495, 500-505), detective Stratton (CT 77-78), and reporter Trihey (RT 16-20; 175-181; SPet. Exhs. 700-701) demonstrated Petitioner's intentional and deliberate aiding and abetting of Joey in the Bocanegra murders. This being the case, a tactical decision not to investigate and present such a defense could be reasonable where evidence is lacking, or it could go toward aggravation.
Post-offenses jail records and medications Petitioner allegedly was given while incarcerated (SHCP Exhs. 601, 602) do not show his emotional and mental state at the time of the crimes.
Defense psychologist Donaldson, who evaluated Petitioner in May 1987, found that although there were indications of organic difficulties in perceptual motor integration, Petitioner was of average intelligence. Specifically, Donaldson stated that:
(SPet. Ex. 106, pp. 1-2.)
Petitioner claims effective counsel would have been aware of the evidence showing serious mental problems and would have investigated this evidence. He points to a 1995 neuropsychological evaluation by psychologist Froming finding severe diffuse organic brain damage and localized brain dysfunction. (SHCP Ex. 114, ¶¶ 39-60.) He points to post-offense jail records which showed continuing mental problems including paranoia, depression, stress, insomnia, inability to eat and a suicide attempt, and that he was given medication for these conditions. He also notes his 1995 evaluation by defense psychiatrist, Dr. Foster, finding depression, mental impairment and post-traumatic stress disorders from childhood trauma and deprivation of basic necessities, exacerbated by substance abuse, all possibly extending back to the time of the instant homicides. (SHCP Ex. 111, ¶¶ 16-17, 20-23, 79-95.) He alleges defense counsel missed this opportunity to show lack of premeditation and deliberation, and also mistakenly believed voluntary intoxication would be no defense to felony murder. He further alleges that his impairments made him more likely to follow counsel's advice to waive a full defense and also affected his ability to understand the consequences of doing so.
Respondent views these allegations as speculation. Respondent contends that Petitioner's statements to reporter Trihey did not necessarily imply that Petitioner believed his dead mother was alive. Respondent contends that Hernandez's observation that Petitioner was suicidal is mere conjecture. Respondent contends that the 1995 opinions of psychiatrist Foster and psychologist Froming of a high probability of mental disorders and impairments at the time of the crimes and subsequent trial are likewise speculation and surmise.
This Court agrees that Petitioner's proffer is not sufficient evidence of mental impairment at the time of the murders and subsequent trial. As discussed in claims 1-4, ante, the substantial evidence shows Petitioner knowingly and intentionally assisted Joey in the Bocanegra murders and confessed the same to reporter Trihey. Significantly, Petitioner told detective Boggs of his involvement in the Tatman murder (CT 288-320) and acknowledged that "he was going to prison for the rest of his life anyway" for his role in the Bocanegra murders. (CT 314.)
The Court does not find post-custody psychological and psychiatric reports sufficient evidence that, at the time of the crimes and trial thereon, Petitioner suffered neurological or psychological impairments. Significantly, there is no evidence defense psychiatrist Donaldson recommended to Toton that a neuropsychological evaluation be performed. Psychiatrist Matychowiak, following his November 1987 court-ordered examination, found that Petitioner was not suicidal or delusional or suffering memory gaps (SPet. Ex. 520, p. 5); that Petitioner planned to tell the judge he was guilty (id. at 2); and that Petitioner understood the proceedings and could cooperate with counsel. (Id. at 6.) Petitioner told Matychowiak that he planned to tell the jury he was guilty and "get it over with." (SPet. Ex. 520, p. 2.) Dr. Matychowiak found Petitioner competent to stand trial.
Additionally, Petitioner cannot establish prejudice from defense counsel's alleged ineffectiveness because a change in the outcome had mental defenses been further investigated and presented is not reasonably likely given the substantial evidence against him and his expressed desire to plead guilty. That is, mental state defenses would not have been sufficient to undermine confidence in the trial outcome.
Petitioner never alleged during trial proceedings that he was mentally impaired or that he did not knowingly participate in the homicides. Rather he admitted his knowing participation to reporter Trihey (RT 181; see SPet. Exhs. 700-701), detective Stratton (CT 77-78) and informant Hernandez (CT 479-484, 487-489). Such a defense was contrary to Petitioner's stated desire to plead guilty to the Bocanegra murders (SPet. Ex. 520, pp. 2-4) and "dying for his crimes but dying with a clear conscience" (SPet. Ex. 700). In fact, Petitioner proceeded to waive jury trial on the guilt and special circumstances phase and submit on the preliminary hearing transcript and testimony of additional prosecution witnesses. (
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Petitioner alleges ineffective assistance of counsel by failure to investigate and impeach informant Hernandez, the principal witness against him, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim D) raised in Petitioner's state petition for habeas corpus.
Petitioner claims that, though Hernandez's history of drug abuse and heroin addiction was available to defense counsel, counsel deficiently failed to investigate these matters or interview Hernandez. (SHCP Exhs. 137, ¶ 12; 113, ¶ 11.) This even though Hernandez's allegedly inconsistent testimony may have been related to drug use and the plea deal he received in exchange for his testimony. Petitioner claims additional evidence discovered might have motivated Toton to put on a full defense. (SHCP Ex. 137, ¶ 18.)
This Court is unconvinced. For the reasons and upon consideration of the evidence discussed in claims 1 through 4, ante, the state court could reasonably have determined there was no basis upon which Petitioner could have effectively impeached Hernandez. Petitioner has not shown that Hernandez gave materially contradictory, inconsistent or false testimony, or that Hernandez was motivated by an undisclosed plea bargain. No facts or discrepancies between the testimony and the physical evidence establish or compel the conclusion that Hernandez, by virtue of his alleged substance addiction, his plea deal, or otherwise, was motivated to and did testify falsely or inaccurately. (SPet. Ex. 900, pp. 4, 11; SResp. Ex. B.)
Defense counsel Toton could have made a reasoned tactical decision not to interview Hernandez. Having cross-examined Hernandez at the preliminary hearing, Toton determined on that basis not to interview him. (SPet. Ex. 137, pp. 3-4.) Moreover, Toton did ask Hernandez about any undisclosed plea deal during cross-examination in the guilt and special circumstances phase. Hernandez's testimony was consistent with Petitioner's statements and the physical evidence, that he had not been offered any disposition of then pending criminal matters prior to agreeing to testify at the Petitioner prosecution. (CT 576-577.) Toton later cross-examined Hernandez during the penalty phase. Hernandez admitted a deal on a then pending charge in exchange for his testimony in Petitioner's proceeding. (RT 2850-2851.) The Court does not find that Hernandez's testimony was false or misleading in this regard.
Defense counsel Frank was not responsible for the guilt and special circumstance phase. It was not unreasonable that Frank did not interview Hernandez relative to his statements therein. (SPet. Ex. 113, p. 4.)
Additionally, given the speculative nature of impeachment, Petitioner's desire to plead guilty, and the incriminating evidence, all as discussed in claims 1-4, ante, Petitioner was not prejudiced from any allegedly deficient performance. There was not a reasonable probability of a different outcome from further attempted impeachment of Hernandez.
Also, such a defense was contrary to Petitioner's stated desire to plead guilty to the Bocanegra murders (SPet. Ex. 520, p. 2) and "dying for his crimes but dying with a clear conscience" (SPet. Ex. 700). Petitioner waived jury trial and submitted the guilt and special circumstances phase on the preliminary hearing transcript and on the testimony of additional prosecution witnesses.
For the reasons stated, it is clear that a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Petitioner claims ineffective assistance of counsel by failure to investigate and present testimony of jailhouse informant Seeley, violating his Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim E) raised in Petitioner's state petition for habeas corpus.
Petitioner claims that Seeley had conversations both with him and Reyes and would have testified that: Reyes was in the Bocanegra home at the time of the their murders; it was Reyes, not Petitioner, who struck Mr. Bocanegra; that the assault on Mrs. Bocanegra by Petitioner and Reyes was unconnected to Joey's subsequent killing of her; that Petitioner and Reyes did not intend to rob the Bocanegras; that Petitioner and Reyes had no plan to kill the Bocanegras; and that their deaths resulted from the sudden quarrel between Joey and Mr. Bocanegra. (SHCP Ex. 419.) Toton, Petitioner claims, was aware of Seeley's statement, (SCHP Ex. 420), but did not interview him or investigate. (SHCP Ex. 137, ¶ 12.) This even though counsel for Reyes in his separate proceedings did attempt to investigate and interview Seeley (SHCP Ex. 136, ¶¶ 7, 8), consistent with the local professional practice of interviewing informants. (SHCP Ex. 127 ¶ 6.)
This Court finds that the record could reasonably support a tactical decision by Toton not to investigate Seeley's possibly exculpating testimony. Toton, who had experience with Seeley on at least one other case, did not believe Seeley had actually spoken with Petitioner (SPet. Ex. 137, ¶ 4), did not believe Seeley was credible, and doubted the prosecution would call Seeley. (SPet. Ex. 137, p. 4.) Moreover, Seeley's version of events could have been viewed as contrary to the physical evidence at the Bocanegra crime scene. (SPet. Ex. 419, pp. 5-6, 17; CT 355-382.)
Seeley's testimony was in some ways more inculpating of Petitioner than were Hernandez's statements. Under Seeley's version of events, Petitioner actively participated in attempts to subdue Mrs. Bocanegra. Seeley apparently would have testified that Petitioner struck several blows to Mrs. Bocanegra's head with a piece of rebar whereupon Joey stabbed her to death. (SPet. Ex. 419, pp. 6-8, 18-19.) Furthermore, testimony by Seeley likely would have been subject to rebuttal by significant contrary evidence from Hernandez, Stratton, Trihey, as well as by the bloodstain evidence and Petitioner's professed desire to plead guilty. All this likely obviating any prejudice to Petitioner for not investigating and presenting Seeley.
Evidence of Petitioner's shoeprint in the kitchen undermines Seeley's July 27, 1987 statements to district attorney investigator Pendleton that Petitioner watched the assault on Mr. Bocanegra from the hallway. (SPet. Ex. 419.) Seeley's version also could be viewed as inconsistent with Petitioner's above noted statements to Hernandez and detective Stratton and to reporter Trihey, where Petitioner omits any mention of Reyes's involvement in the assault by Joey on Mr. Bocanegra.
In addition to these considerations of credibility and corroboration, the record reflects that Seeley refused to speak with counsel for Reyes, (SPet. Ex. 136, pp.1-3), who characterized Seeley as "a professional jailhouse snitch." (SPet. Ex. 139, p. 2.) It is uncertain that he would have agreed to speak with Toton. Even if, as Petitioner alleges, Toton had an unusual practice of not talking to jailhouse informants except on the witness stand, Toton's alleged failure in this case to investigate and present evidence from Seeley could nonetheless have been a reasonable trial tactic.
Accordingly, it was at least arguable that a reasonable attorney could decide to forego investigation into Seeley's testimony in similar circumstances. Toton was allowed to formulate a strategy, reasonable at the time, and to balance limited resources consistent with effective trial tactics and strategies.
As to defense counsel Frank, he could reasonably have decided not to interview Seeley to the extent any evidence to be provided by Seeley related only to the guilt and special circumstances phase, handled by Toton. (See SPet. Ex. 113, p. 4.)
This claim, to the extent based on insufficiency of the evidence and actual innocence, is unpersuasive for reasons discussed in claims 1 through 4, ante. For the reasons discussed therein, Petitioner has not established that Hernandez's testimony was materially unreliable or inconsistent with the testimony of Stratton and Trihey and the physical evidence found at the Bocanegra crime scene, or that Hernandez testimony was given in exchange for an undisclosed favorable (to Hernandez) plea deal.
Nor has Petitioner made an evidentiary showing of prejudice. For the reasons discussed above, the state court could have determined there was no reasonable probability of a different outcome from investigating Seeley and presenting him as a witness. Fundamentally, such a defense was contrary to Petitioner's stated desire to plead guilty to the Bocanegra murders, (SPet. Ex. 520, p. 2), and "dying for his crimes but dying with a clear conscience." (SPet. Ex. 700.) Based on that desire, Petitioner waived jury trial and submitted guilt and special circumstances phase on the preliminary hearing transcript and the testimony of additional prosecution witnesses.
The Court concludes that a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
In this claim, Petitioner alleges ineffective assistance of counsel by failure to investigate and present evidence about Joey, violating his Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim F) raised in Petitioner's state petition for habeas corpus.
Petitioner, citing to the declaration of defense investigator Peninger, faults defense counsel for not investigating and presenting evidence of Joey's violent temper, threats and assaults against his parents, and smoking PCP the night before the Bocanegra murders. (SHCP 127, ¶ 5.) Petitioner claims such evidence would have shown that a sudden quarrel and a fear of Joey precipitated the killings rather than premeditation, deliberation and an intent to commit robbery. He bases this claim upon facts allege in claims 1 through 4.
The Court is not persuaded. In June, 1988, prior to trial, defense investigator Peninger interviewed Joey. (SHCP Ex. 127, ¶ 5.) Though Toton conceded he could have investigated Joey further, and would have done so if a full defense had been mounted, (SHCP Ex. 137, ¶¶ 18, 21, 22), Petitioner waived a full defense.
Proffer of evidence that there was no robbery motive would not have changed the outcome. The trial court's found Petitioner was not guilty of robbery, and found not true the robbery-murder special circumstance. (CT 906; RT 236-237.) Therefore no prejudice arose from any failure to investigate and present evidence of Joey's temper and prior assaultive behavior relating to robbery-murder theory.
As discussed in claims 1-8, ante, there was sufficient evidence to convict Petitioner of aiding and abetting first degree murder based upon a finding of premeditation and deliberation. The state court could reasonably have concluded that, in the face of such substantial evidence of guilt, it was not reasonably likely that a showing of Joey's temper and prior assaultive conduct would have raised a reasonable doubt that Petitioner aided and abetted the premeditated and deliberate murders of Mr. Bocanegra and Mrs. Bocanegra.
Petitioner points out that counsel for Reyes, in Reyes's separate proceeding, did investigate Joey and subpoenaed trial witnesses based thereon. However, this alone does not suggest that, on the record in this proceeding, Toton's decision not to do so was an unreasonable trial tactic. Especially so given the above noted substantial evidence of Petitioner's guilt and Reyes's decision to plead guilty to three counts of first degree murder.
Petitioner has not made an evidentiary showing of prejudice, that there is a reasonable probability of a different outcome from investigating and presenting evidence about Joey. The state court could reasonably have found that, considering the record before it, evidence about Joey would not have changed the result. Petitioner gave incriminating statements to detective Stratton and reporter Trihey, corroborated by the crime scene evidence and Hernandez's testimony. (See claims 1-4, ante.) Here again, such a defense was contrary to Petitioner's stated desire to plead guilty to the Bocanegra murders, (SPet. Ex. 520, p. 2), and "dying for his crimes but dying with a clear conscience." (SPet. Ex. 700.) Petitioner waived jury trial and submitted guilt and special circumstances phase on the preliminary hearing transcript and the testimony of additional prosecution witnesses.
Accordingly, a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Petitioner next claims ineffective assistance of counsel by failure to investigate and present physical evidence of Bocanegra murders, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim G) raised in Petitioner's state petition for habeas corpus.
Petitioner alleges that supplemental evidence from criminologist Laskowski and coroner Holloway would have shown three people, Reyes, Petitioner and Joey, were in the Bocanegra house at the time of the murders and that the victims' scalp wounds could have been inflicted by different assailants using different implements. (SHCP Exhs. 417, pp.1-2; 120, ¶¶ 6-7.) Petitioner reasons this supplemental evidence would have rebutted the prosecution theory that only Petitioner and Joey were present in the Bocanegra home at the time of the murders, and would have caused defense counsel to take the matter to full trial on guilt, (SHCP Ex. 137, pp. 6-7) and thereby increased possibility of a negotiated plea more favorable than the conviction and sentence handed down.
The Court finds this claim unavailing. The evidence in the state record is consistent with Reyes, at some point, entering the Bocanegra home. Evidence of Reyes's bloody hand print on the front doorknob was admitted at Petitioner's preliminary hearing. (CT 202-203.)
Petitioner is correct that criminologist Laskowski testified at preliminary hearing to only two shoe tread patterns found at the Bocanegra crime scene, and that Laskowski (during his subsequent preparation for the separate Reyes trial) identified a third shoe tread pattern in the kitchen of the Bocanegra residence. However, Reyes admitted in this subsequent proceeding that he served as lookout during the murders and entered the residence only afterwards to assist Petitioner and Joey. (SResp. Ex. A., p. 3:1-11.)
Petitioner is also correct in noting that, while Dr. Holloway testified at the preliminary hearing that the same type of implement inflicted consistent scalp wounds on both Mr. Bocanegra and Mrs. Bocanegra, (CT 118-119), Holloway at the penalty phase stated that Mr. Bocanegra's scalp wounds were only "partially", rather than "entirely" consistent with Mrs. Bocanegra's scalp wounds; and that it appeared different objects were used to inflict these scalp wounds. (RT 2712-13, 2720-21, 2725.) However, Holloway qualified his preliminary hearing testimony by noting that the scalp wounds on Mr. Bocanegra and Mrs. Bocanegra were not necessarily inflicted by the same instrument. (CT 131-134.)
Holloway's testimony, as qualified, did not then preclude the possibility that more than one weapon and more than one perpetrator inflicted the wounds. Defense counsel Toton argued as much, that different individuals, using different weapons, could have inflicted the scalp wounds on Mr. Bocanegra and Mrs. Bocanegra. (RT 189-191.)
The Court finds that, for the reasons discussed in claims 1-9, the state court could reasonably have found that there was sufficient evidence to convict Petitioner of aiding and abetting first degree murder based upon a finding of premeditation and deliberation. In the face of such substantial evidence, a further showing regarding physical evidence, that Reyes left a bloody shoe print, and that two different weapons may have inflicted the scalp wounds, would not have raised a reasonable doubt that Petitioner aided and abetted the premeditated and deliberate murders of Mr. Bocanegra and Mrs. Bocanegra. Additionally, evidence of Petitioner's shoeprint in the kitchen undermines Seeley's testimony that Petitioner watched the assault on Mr. Bocanegra from the hallway. (SHCP, Ex. 419, pp. 6, 7, 22-23.)
For the reasons stated, Petitioner has not made an evidentiary showing of prejudice, i.e., that there is a reasonable probability of a different outcome from investigating physical evidence of the Bocanegra murder scene. As noted, such a defense was contrary to Petitioner's stated desire to plead guilty to the Bocanegra murders (SPet. Ex. 520, p.2) and "dying for his crimes but dying with a clear conscience." (SPet. Ex. 700.) Petitioner waived jury trial and submitted guilt and special circumstances phase on the preliminary hearing transcript and the testimony of additional prosecution witnesses.
Accordingly, the Court is not convinced of a reasonable probability that supplemental crime scene evidence would have prompted defense counsel to put on a further defense or would have resulted in a more favorable disposition for Petitioner given his incriminating statements to detective Stratton and reporter Trihey and the crime scene evidence corroborated by Hernandez's testimony. (See discussion of claims 1-9, ante.)
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Petitioner next claims ineffective assistance of counsel by failure to pursue plea negotiations, violating his Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim H) raised in Petitioner's state petition for habeas corpus.
Petitioner alleges that defense counsel was deficient in failing to pursue plea negotiations given that the evidence supported the prosecution's theory that Joey was the actual killer of his parents. (RT 122, 155-156.) Petitioner points out that Reyes, whom the prosecution viewed to be of equal culpability, consummated a plea deal in his separate proceeding and avoided the death penalty. (Id.)
This claim fails. The state court could reasonably have found defense counsel Toton was not deficient in failing to pursue continuing plea negotiations. The record reflects that Toton attempted to obtain a plea deal for Petitioner on May 10, 1988. But the prosecutor rejected the plea deal when Petitioner refused to provide information of Joey's involvement in the Bocanegra murders, even though Petitioner had proposed to do just that in his plea bid. (SResp. Ex. B.)
Toton also made a pre-penalty phase overture for Petitioner to provide information regarding Joey's involvement in the Bocanegra murders in return for life without parole. Here again, Petitioner ultimately refused to provide such information, ending any possible deal.
Nothing reasonably suggests that persistence of counsel alone could have resulted in a plea deal without Petitioner's cooperation.
Prosecutor Ryals, who prosecuted both Petitioner and, in a separate proceeding, Reyes, based her "decisions regarding plea bargain agreements . . . on [her] evaluations of the evidence, the facts, and the circumstances of each case" and that "[t]he persistence and/or insistence of defense counsel in seeking a plea bargain agreement on behalf of their client [was] not a factor . .. ." (Id.) The Court notes that "[s]trict adherence to the
Additionally, for the reasons discussed in claims 1 through 4, ante, the evidence against Petitioner was substantial. In the face of such evidence and Petitioner's failure to support his negotiated plea offers, it is not reasonably probable that continuing attempts by defense counsel toward a negotiated plea would have been successful.
Petitioner has not made an evidentiary showing of prejudice given the improbability of a plea deal without his cooperation. Petitioner expressly stated his desire to plead guilty to the Bocanegra murders (SPet. Ex. 520, p. 2) and "dying for his crimes but dying with a clear conscience." (SPet. Ex. 700;
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Petitioner claims ineffective assistance of counsel by counsel's failure to move to exclude jailhouse statements by Petitioner to the police implicating him in the Bocanegra homicides, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim I) raised in Petitioner's state petition for habeas corpus.
Petitioner supports this claim with facts alleged in claim 6, ante. He alleges that he suffered organic brain damage, psychiatric disorders (post-traumatic stress disorder, depression, and paranoia), and that he expected favorable treatment when, at the request of his then attorney, Mr. Huffman, Petitioner waived Miranda rights and gave incriminating statements to detective Stratton, (CT 75-78) (Bocanegra murders), and detective Boggs (CT 308-319) (Tatman murder). Petitioner claims that his Miranda waiver was not intelligent and voluntary.
In
This claim fails for the same reasons discussed in claim 6. The state court could reasonably have found that the evidence did not show that prior to, during, or after the murders Petitioner suffered any material neurological and/or psychiatric impairment. The report of court-appointed psychiatrist Matychowiak states that on November 13, 1987, [Petitioner] was "able to discuss himself, his decisions and his reasoning for his decisions" and was "presently able to understand the nature and purpose of the proceedings taken against him" and "to cooperate in a rational manner with counsel in presenting a defense." (SPet. Ex. 520, pp.5-6.)
Under
Additionally, it was Petitioner who initiated contact with the police, offering testimony on the Bocanegra murders in exchange for "some type of consideration" in the burglary charge against him. (SPet. Ex. 412; CT 76.)
The Court finds that, in the face of such lack of evidence, it is not reasonably probable that a motion to exclude jailhouse statements based upon invalid waiver would have been successful.
Petitioner has not made an evidentiary showing of prejudice, that there is a reasonable probability of a different outcome had defense counsel moved to exclude jailhouse statements based on invalid waiver. As discussed, such a defense was contrary to Petitioner's stated desire to plead guilty to the Bocanegra murders (SPet. Ex. 520, p.2) and "dying for his crimes but dying with a clear conscience." (SPet. Ex. 700.) Petitioner waived jury trial and submitted the guilt and special circumstances phase on the preliminary hearing transcript and the testimony of additional prosecution witnesses.
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
In this next claim, Petitioner alleges ineffective assistance of counsel by failure to seek sufficient continuance to adequately prepare for trial, violating his Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim J) raised in Petitioner's state petition for habeas corpus.
Petitioner supports this claim with facts alleged in claims 2, 4, and 6 through 10. He alleges that, as of May 16, 1988, when a three-week pre-trail continuance was requested and granted through June 27, 1988, defense counsel had done no guilt investigation, except for consulting a serologist and obtaining a sanity evaluation, (SHCP, Ex. 127, ¶ 4), and had not done any investigation for the penalty phase. (SHCP, Ex. 127, ¶¶ 4, 11.) He claims competent counsel would have begun trial preparations sooner. (Id., ¶ 12.)
Petitioner's trial began on July 7, 1988. He alleges that had defense counsel requested, consistent with local practice, required a continuance longer than the three weeks, there is a reasonable probability that a plea bargain could have been negotiated, or a full trial on guilt and special circumstances would have been sought.
For the reasons discussed in claims 1-12, the evidence does not support a reasonable possibility that Petitioner would have received a more favorable disposition even with a longer continuance. Petitioner relies on defense investigator Peninger's declaration regarding the extent to which she was aware of the defense investigation and her view that further investigation should have been done. (SPet. Ex. 127, pp. 1-2.) Even if evidence, the Peninger declaration does not demonstrate the actual extent and tactical appropriateness of defense counsel's trial preparations.
The record suggests that defense counsel timely began trial preparations, retaining defense expert(s) as early as November 1987. (RT [5/16/88] 3-4.) Petitioner concedes defense counsel retained serology and psychological experts prior to the request for continuance. The continuance request was partially opposed by the prosecution, (RT [5/16/88] 5-6; CT 713-714), suggesting a further continuance was unlikely.
There state court could reasonably have determined that Petitioner did not want or need a continuance. Petitioner initially refused to waive time for beginning trial, stating his intention to enter a guilty plea. (RT [5/16//88] 7.) Petitioner agreed to waive time only after discussions with counsel. (RT [5/16/88] 7-8.) Petitioner continued to express his desire to plead guilty to the Bocanegra murders. (SPet. Exhs. 520, p.2; 700.)
On July 11, 1988, Toton requested submission of guilt and special circumstance phase on the preliminary hearing transcript. Defense counsel Frank had no expressed need for a further continuance to prepare his penalty phase case. Frank stated his preparations would be complete by July 25, 1988. (RT [5/16/88] 6.) The penalty phase did not start until September 21, 1988, almost two month later. (CT 949; RT 2583.) It does not reasonably appear the defense needed and would have been granted further pre-trial continuance. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.
For the reasons stated, a fair-minded jurist could have reasonably have determined that, based on the evidence, a longer continuance would not have resulted in a more favorable disposition for Petitioner. His incriminating statements to detective Stratton and reporter Trihey and the crime scene evidence that was corroborated by Hernandez's testimony reasonably suggest otherwise. (See claims 1-12, ante.)
Petitioner has failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Claim 13 is denied.
Petitioner next claims ineffective assistance of counsel by the decision to waive jury trial, confrontation and presentation of a defense, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim K) raised in Petitioner's state petition for habeas corpus.
The state supreme court, on direct appeal, addressed the merits of the validity of submission on the Preliminary Hearing Transcript as follow:
Defendant repeatedly acknowledged that he was waiving his constitutional rights and that his decision was entered "freely and voluntarily."
The trial court later confirmed the waivers:
Petitioner confirmed his intent to waive his jury trial and confrontation rights the following morning, but no mention was made by the court or counsel of defendant's right against self-incrimination. Even so, the California Supreme Court went on to find Petitioner's submission on the preliminary hearing transcripts was not a "slow (guilty) plea" that would have required an on the record waiver of the right against self-incrimination, as follows:
The state supreme court also concluded there was no requirement that Petitioner be advised of ramifications of submission and waiver and the probability of conviction in light of defendant's reservation of his right to present additional evidence and to contest his alleged guilt in argument to the court. That is, a defendant must be advised of the probability that his submission will result in a conviction of the offenses only "[i]f a defendant does not reserve the right to present additional evidence and does not advise the court that he will contest his guilt in argument to the court. . . ."
Petitioner contends that reasonably competent counsel defending a capital case would not have submitted without a full trial. He supports this claim with facts alleged in claims 2, 4 and 6 through 10. He reiterates his above claims that Toton and Frank did not conduct sufficient trial investigation and preparation. He claims Toton's agreement to allow additional evidence upon submission negated Toton's theory that submission on the preliminary hearing would limit damaging evidence. (See SHCP Ex. 137, ¶¶ 14-16.) He claims that Frank had reservations about waiving full defense, but did not express them to the trial court. (SHCP Ex. 113, ¶ ¶ 13-19.) However, this Court finds that, for the reasons and based on the evidence discussed in claims 1-13, ante, the state court could reasonably have found that defense counsel were not deficient in preparing for trial and that the trial waiver was not necessarily inform on this basis.
Petitioner alleges mental impairments prevented him from knowingly, voluntarily, and intelligently entering the waiver with complete knowledge of the relevant circumstances and likely consequences.
Petitioner also fails to make an evidentiary showing of prejudice. He had expressed his intention to enter a guilty plea (RT [5/16/88] 7) and waive jury trial. (RT [7/27/88] 6.) Defense counsel Frank's preparation of penalty phase defense was nearly complete at time of the trial waiver and was not adversely affected. (SPet. Ex. 113, pp. 5-7.) Defense counsel could have reasonably believed that, as a matter of trial strategy, submission on the preliminary hearing transcripts would limit damaging evidence, (SPet. Exhs. 137, pp. 4-5; 113, pp.4-5), keeping "some of the blood and gore of the homicides away from the penalty jury." (SPet. Ex. 113, ¶ 16.) Especially so given Toton's concern that Reyes might testify against Petitioner, and Toton's belief the aider and abettor theory might be more favorably decided by the court rather than a jury. (SPet. Ex. 137, p. 5.)
In sum, the evidentiary record does not support a reasonable possibility that Petitioner would have received a more favorable disposition had the matter gone to jury trial at the guilt and special circumstance phase. Had Petitioner testified before a jury as to lack of knowledge and intent in aiding and abetting the murders, he likely would have been impeached for reasons discussed in claims 1-13.
For the reasons stated, Petitioner has not established that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 14 is denied.
Petitioner next claims ineffective assistance of counsel by failing to cross-examine newspaper report Trihey, violating Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim L) as it was raised in Petitioner's state petition for habeas corpus.
Petitioner supports this claim with facts alleged in claims 2 and 4. He alleges that had Toton cross-examined Trihey on the published newspaper articles he could have called into question the version of events offered by Trihey and Hernandez, and supported Petitioner's mental defenses. (Pet. ¶ 306-314.)
Petitioner argues cross-examination regarding the contents of the newspaper articles, cross-examination Toton refused under conditions imposed by the Court (limiting such to the printed articles — see RT 57-59) would have been beneficial, but he does not demonstrate how or why this is so given his contradictory statements of the crimes and his involvement.
Trihey testified at the guilt and special circumstance phase that during the course of five interviews, Petitioner stated he was "a triple murderer" and that the victims were killed for their "Social Security checks." (RT 17-18). These statements were included in the published articles. (
The trial judge limited any cross-examination to the confession and information published by Trihey in the newspaper. Unable to impeach Trihey, defense counsel could reasonably have concluded that cross-examination might highlight inconsistencies in Petitioner's versions of how the murders occurred, bolstering both the direct examination and the damaging testimony of Hernandez. Moreover, defense counsel Toton, during closing argument, argued effectively to limit the impact of Trihey's testimony regarding robbery, (RT 175-183), and the robbery-murder special circumstance. Petitioner cannot show prejudice where he fails to state with specificity the nature of the proposed testimony.
Additionally, for the reasons discussed in claims 1 through 4 and 6, the evidence does not support a reasonable possibility that Petitioner would have received a more favorable disposition on sufficiency of the evidence, actual innocence and mental states defenses by cross-examining Trihey. Instead, defense counsel could have reasonably believed that cross-examining Trihey as to mental state defenses, unsupported in the record, might serve only to reinforce the published confession.
Petitioner was not prejudiced by failing to Toton's failure to cross-examine Trihey. The trial court's guilt phase verdicts, rejecting robbery and robbery special circumstance counts in the Bocanegra homicides, reflect its acceptance of Toton's argument that Trihey's testimony should not be given substantial weight. (RT 235-236.) Trihey's testimony likely would not have changed the outcome.
Accordingly, the Court finds the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution. See 28 U.S.C. § 2254(d).
Claim 15 is denied.
In his next claim, Petitioner alleges ineffective assistance of counsel by failure to argue for second degree Murder in Bocanegra homicides, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim M) raised in Petitioner's state petition for habeas corpus.
Petitioner claims that Toton should have argued for lesser included second degree murder because evidence he premeditated the murders was insufficient. (RT 168-196.) He supports this claim with facts alleged in claims 2 and 4, ante. However, Petitioner has not established actual innocence, or that the evidence was insufficient to support the premeditated and deliberate murder of the Bocanegras. (See claims 1 through 4, ante.) Second degree murder was in any event a lesser included option, necessarily rejected by the trial court in its finding of first degree murder. (RT 235-236.)
The Court finds it was not unreasonable for Toton to argue voluntary manslaughter (RT 168-196), foregoing argument of second degree murder, given his theory that a sudden heated argument between Mr. Bocanegra and Joey led to the killings. (CT 77-78, 479, 487, 500, 590; RT 97, 132-33, 188-193, 195-96.) Given the support in the evidentiary record for the manslaughter argument, the state court could reasonably have determined Toton's failure to argue for second degree murder was not ineffective assistance.
The state court could reasonably have determined that Petitioner was not prejudiced by Toton's failure to argue for second degree murder. Though Petitioner contends in this claim that he was willing to accept any non-capital conviction, this position is not consistent with his stated desire to plead guilty to the Bocanegra murders. (SPet. Ex. 520, p. 2; 700.) Petitioner waived jury trial and submitted guilt and special circumstances phase on the preliminary hearing transcript and the testimony of additional prosecution witnesses.
The Court notes that Toton's motion for acquittal based upon sufficiency of the evidence was denied by the trial court. (RT 140-141.) Toton's argument in closing, revisiting insufficiency of the evidence, was also unsuccessful.
Accordingly, a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 16 is denied.
Petitioner next claims ineffective assistance of counsel by failure to object to improper prosecution closing at the guilt and special circumstances phase, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim N) raised in Petitioner's state petition for habeas corpus.
Petitioner alleges that the prosecutor's argument, that there were only two people, other than the Bocanegras, present at the time of the killings, was false and misleading. Petitioner states that the prosecution presented evidence of Reyes's bloody palm print on the door knob inside the Bocanegra home. (CT 202-203.) Yet Toton failed to object because he wrongly assessed the evidence. (SHCP Ex. 137, ¶ 30.) Defense counsel Frank did not object because he was responsible only for the penalty phase. (SHCP Ex. 113, ¶ 27.)
This Court is not convinced. Physical evidence that Reyes was in the Bocanegra home is not inconsistent with the evidence that Reyes served as a lookout and entered the Bocanegra home after the homicides to assist Joey and Petitioner. (SResp. Ex. A, pp.3-4; see claim 10.) The prosecution's argument then was not inconsistent with the evidence. Toton could reasonably have concluded that the prosecution's "two person" argument was not objectionable as false or misleading based on the record. (SPet. Ex. 137, pp. 9-10.)
Moreover, Petitioner did not challenge the evidence that he struck Mr. Bocanegra with a bar (CT 481-82; RT 169, 184-85, 188, 196, 207), and that he grabbed Mrs. Bocanegra and told Joey to "shut her up". (CT 482-483, 504; RT 190-91.) Counsel is not ineffective for failing to make an objection that would be overruled.
Petitioner does not demonstrate by evidence in the record that Toton failed to reasonably investigate these matters. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."
Toton could have considered the prosecution argument, that there was no evidence anyone other than Joey and Petitioner committed the Bocanegra homicides, to be consistent with the evidence and not unreasonable. Moreover, Toton did argue an inference from the evidence, that Mrs. Bocanegra's scalp wounds were inflicted by someone other than Petitioner, (RT 191), and that there was insufficient evidence to show Petitioner inflicted the wounds.
There is no sufficient showing that Petitioner was prejudiced by Toton's alleged failure to object to the prosecutor's guilt and special circumstance closing argument that there were only two perpetrators in the Bocanegra homicides. The evidentiary record contains substantial evidence against Petitioner, his incriminating statements to detective Stratton and reporter Trihey and the crime scene evidence corroborated by Hernandez's testimony. (See claims 1-10.)
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It does not appear that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 17 is denied.
Petitioner next claims ineffective assistance of counsel by cumulative ineffectiveness during the guilt phase violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim O) raised in Petitioner's state petition for habeas corpus.
Petitioner claims that Toton's failure to seek a continuance to conduct guilt phase investigation, and failure to present complete defenses based on physical evidence, mental state, and testimony from Joey, Seeley, and Hernandez had the cumulative effect of denying Petitioner a full trial at the guilt and special circumstance phase and possibility of a plea bargain. Petitioner bases this claim on facts alleged in claims 2, 4, and 6 through 17, ante.
"The Supreme Court has clearly established that the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal."
The cumulative effect of trial court errors can be a basis for habeas relief in certain circumstances:
Here, there is not a need to employ cumulative error analysis because review has detected no error, for the reasons discussed in claims 2, 4 and 6-17. Petitioner has not established that the evidence before the trial court showed defense counsel Toton was ineffective. These claims are insubstantial whether considered singlely or cumulatively.
Accordingly, Petitioner has not established that defense counsel's cumulative performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Respondent contends this claim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
Claim 18 is denied.
In claims 19 through 27, Petitioner alleges that during the guilt and special circumstance phase he was denied effective assistance of defense counsel.
A breakdown in the attorney-client relationship can result in a denial of the right to effective assistance of counsel.
The Sixth Amendment requires an appropriate, on the record, inquiry into the grounds for such a motion, and that the matter be resolved on the merits before the case goes forward.
Petitioner claims trial court error by denial, without adequate investigation, of defense counsel's motions to withdraw depriving him of effective assistance of counsel, violating his Sixth, Eighth and Fourteenth Amendment rights.
The state supreme court considered this claim on appeal and found that the trial court did not abuse its discretion in denying defense counsel's two motions to withdraw, as follows:
Petitioner alleges that his out-of-court actions revealed a complete breakdown in his relationship with counsel and that his lack of trust and confidence was not unfounded as counsel ignored his serious mental disturbances which should have been obvious. Petitioner notified defense counsel of his intent to speak to the media on February 2, 1988. Later that day counsel met with Petitioner and advised against contacting the media. After the meeting, counsel discovered Petitioner had given an interview to Michael Trihey, reporter for the Bakersfield Californian newspaper, earlier that day. That interview led to a front-page story published on February 12, 1988.
On February 16, 1988, defense counsel filed a motion to withdraw, asserting Petitioner had indicated he did not trust counsel and actively mislead them by failing to inform them he had already given an interview to Trihey, Petitioner's refusal to cooperate rendered his representation virtually impossible, and their attorney-client relationship was so tainted counsel's efforts would be of no assistance. However, the Court denied the motion because it found no breakdown in the attorney-client relationship and that any prejudice created by Petitioner's contacting the press against counsel's advice would not be ameliorated by counsel's withdrawal. On March 7, 1988 the trial court, before denying the initial motion to withdraw, questioned Petitioner about whether he trusted defense counsel. Petitioner responded that "[he was] willing to stay with them." (CT 690, 707-708; RT [3/7/88] 4-5.)
On April 25, 1988, another article by Trihey was published in the
On May 2, 1988, counsel again moved to withdraw, asserting continued representation would require unethical conduct by counsel. The trial judge met with defense counsel and Petitioner regarding counsel's renewed motions to withdraw. The court denied Toton's motion on the merits on that day. (CT 707; RT [5/6/88] 3.) Four days later the Court denied Frank's motion due to "nearness of the trial date." (CT 708; RT [5/10/88] 5.) The trial court had previously noted that substitution of counsel would not alleviate any prejudice to the case already resulting from Petitioner's discussions with report Trihey. (RT [3/7/88] 5.) On June 22, 1988, the Court of Appeal of the State of California, Fifth Appellate District, denied Petitioner's petition for writ of mandate and/or prohibition, seeking an order directing the trial court to grant counsel's motions to withdraw. (CT 768.)
Here, the state court could reasonably have found that any disagreement with counsel was not so great that it resulted in a complete breakdown in the attorney-client relationship jeopardizing his right to effective representation and a fair trial. (CT 690; RT [3/7/88] 4-5.) The contention of defense counsel in their initial (February 1988) motion that the newspaper article reflected a lack of trust and cooperation (RT March 7, 1988 at pp. 3-4; CT 685-686) was countered by Petitioner during his colloquy with the trial court. Petitioner stated to the trial judge that, "[t]here is a little bit of mistrust there, but you know, I'm willing to stay with them, if they want out, you know, I won't stop them." (RT March 7, 1988 at pp. 4-5; CT 685-686.)
Petitioner's assertion that the trial court erred by treating the newspaper interview as the sole issue, failing to investigate and address the more pervasive problem of mistrust, is unavailing. Toton's February 1988 withdrawal motion, which raised a lack of trust and confidence as a result of the newspaper article, was denied by the trial court on the merits (CT 707; RT May 6, 10, and June 24, 1988 at p. 3) following the trial court's above noted discussion of these very issues with Petitioner. (RT March 7, 1988 at pp. 4-5; CT 685-686.)
Petitioner also contends that the second motion to withdraw, brought by Frank in May 1988 and joined in by Toton, was improperly denied. He points out that this motion was unopposed and that the trial court delayed reaching the motion and ultimately did not reach the merits. Frank's May 1988 withdrawal motion, brought on ethical grounds relating to possibly perjurous testimony, (CT 694-696; URT
Moreover, as with the earlier motion to withdraw, Petitioner was ambivalent, neither seeking nor objecting to withdrawal. (URT (Frank) [5/6/88] 9; RT [5/6/88] 2.) Petitioner's contention his defense waiver was a product of ineffective assistance (Pet. ¶¶ 377-380) is refuted by his expressed desire to plead guilty. (RT [7/27/88] 6-7; URT (Toton) [5/6/88] 2.)
Petitioner's suggestion that he lacked confidence in counsel because they ignored his mental disturbance was not communicated by him to the court and counsel and is not supported by any proffer in the evidentiary record. Petitioner neither sought nor objected to withdrawal of defense counsel Toton and Frank, (RT [5/6/88]2), and had expressed his desire to enter a guilty plea. (RT [5/16/88] 7.) In accordance therewith, trial was waived on the guilt and special circumstances phase. (RT [7/27/88] 6-7.) The state court could reasonably have determined that withdrawal would not have ameliorated any prejudice from Petitioner's contacting the press, or affected Petitioner's submission on the preliminary hearing.
Respondent contends this claim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
For the reasons stated, the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 19 is denied.
In claim 20, Petitioner alleges ineffective assistance of counsel by complete breakdown in the attorney/client relationship violating his Sixth, Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied this claim (SPet. Claim Q) raised in Petitioner's state petition for habeas corpus.
Petitioner revisits allegations in claim 19 regarding Toton's disciplinary issues, and proffers an unsigned declaration of defense expert Isabel Wright that defense counsel disbelieved and disregarded Petitioner. (SHCP Ex. 131, Att. B, ¶ 6-9.) However, even if competent evidence, Wright's testimony is controverted by that of defense counsel Toton (SHCP Ex. 137, p. 8) and Frank (SHCP Ex. 113, ¶ 6), that apart from the media interview issue, the attorney-client relationship was a cooperative one. Moreover, the record shows that the trial court questioned Petitioner to verify that he had spoken to Frank about the disciplinary proceedings, that he had read the
The trial court discussed with Petitioner his earlier position that it was his idea alone to "waive the jury under any circumstances." Petitioner told the trial court that he wanted to waive jury trial on the guilty and special circumstances phase and that the idea started with him and not defense counsel. (RT [7/27/88] 6-7.)
The trial court discussed with Petitioner whether he wanted to make a motion for mistrial "and for certain other motions in view of the publicity that this has gotten?" The following colloquy took place:
Based on the foregoing, and for the reasons discussed in claim 19, the state court could reasonably have determined Petitioner did not established ineffective assistance of counsel through complete breakdown of the attorney/client relationship. As noted by the state supreme court, "[i]n order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel's performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel's performance prejudiced defendant's case in such a manner that his representation "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."
Moreover, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."
Petitioner has not established prejudice. Toton was licensed to practice law until his disbarment on March 31, 1989, after Petitioner's trial was completed. In rejecting this claim on appeal, the state supreme court pointed out that:
Petitioner's contention that defense counsel found him uncooperative is refuted by Mr. Frank's declaration where he said that, except for the media interviews, Petitioner was cooperative with defense counsel. (SPet. Ex. 113, p. 3.) As to the alleged ethical dilemma, as noted a lawyer's violation of ethical norms does not make the lawyer per se ineffective. Burt, 134 S. Ct. at 18.
Respondent contends this claim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds that, the reasons discussed, the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 20 is denied.
Petitioner claims denial of effective assistance of counsel through the appointment of Toton as lead counsel and the failure to replace him notwithstanding his conflicts of interest and Petitioner's insufficient waiver thereof, violating his Sixth, Eighth, and Fourteenth Amendment rights.
The California Supreme Court summarily denied claims 21, 23 and 24 (SPet. Claims P, R and S respectively) raised in Petitioner's state petition for habeas corpus.
The state supreme court, in reviewing these issues on direct appeal, noted that:
The Sixth Amendment provides that a criminal defendant shall have the right to "the Assistance of Counsel for his defense." As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
An exception exists for cases in which counsel actively represents conflicting interests.
Petitioner supports these claims in part with facts alleged in claims 5 and 6. He contends that Toton, who had state bar disciplinary proceedings pending against him at the time he was appointed to Petitioner's case. He contends Toton obtained his bar license by fraud. He contends that Toton had conflicts of interest relating to disbarment proceedings which should have resulted in replacement lead counsel and a jury trial at the guilt and special circumstance phase. However, there is no competent evidence Toton obtained his law license by fraud (SHCP Ex. 133, Att. A), or that he engaged in the practice of law prior to his admission to the bar. (SHCP Exhs. 514; 516-18.) Toton was not disbarred until March 31, 1989, five months after the penalty phase verdict. (SHCP Ex. 519.)
Petitioner faults the trial court for failure to conduct an adequate inquiry into Toton's possible conflict of interest, noting Toton was never questioned. (Sealed RT July 26, 1988, at pp. 80-84.) However, the trial judge did look into the pending disciplinary proceedings against Toton and discussed such with the parties and Petitioner.
The evidentiary record does not reflect that Toton's litigation of the case was influenced by an actual conflict arising from the disciplinary proceedings.
Petitioner's contention that he should have been allowed to discuss Toton's alleged conflict with Toton himself or outside counsel is unaccompanied by any evidentiary proffer how that would have resulted in a more favorable outcome. The state supreme court found that "the fact disciplinary proceedings were pending against counsel Toton did not automatically render Toton's performance inadequate or prejudice [Petitioner's] right to effective counsel."
For the reasons discussed in claims 19 and 20, ante, Petitioner has not established denial of effective assistance of counsel through denial of defense counsel motions to withdraw, breakdown of the attorney-client relationship by virtue of Toton's debarment proceedings, or waiver of jury trial at the guilt and special circumstance phase. The assertion in claims 21-24, that the trial court did not sufficiently investigate defense counsel's alleged conflict of interest similarly fails for the same reasons.
Petitioner expressed his desire to plead guilty, to stay with Toton following discussion with the court and defense counsel. Toton, assisted by co-counsel Frank, vigorously cross-examined witnesses and made a variety of pretrial and trial motions and made a detailed guilt phase closing argument, thereby distinguishing this matter from Petitioner's cited
Petitioner's re-argument that neuropsychological deficits (organic impairments) and neurological and psychiatric disorders (psychiatric impairments) prevented him from competently waiving the conflict fails substantively for the reasons stated in claims 1-4 and 6. As discussed in those claims, Dr. Foster's 1995 opinion of Petitioner's mental state, that there is a high probability Petitioner suffered neuropsychological and psychiatric disorders and impairments during the pretrial and trial period, does not demonstrate the trial court decision to allow Toton to continue as lead counsel was unreasonable.
At bottom, Petitioner has not demonstrated Toton had an actual conflict of interest.
Respondent contends claims 21, 22 and 24 are not cognizable because each creates and retroactively applies a "new rule" of constitutional law within
A fair-minded jurist could have found that rejection of these claims was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claims 21-24 are denied.
Petitioner next claims that he was not competent to waive trial by jury and confrontation and cross-examination of witnesses and presentation of a defense, and that he was not competent to stand trial, violating his Sixth, Eighth, and Fourteenth Amendment rights. He supports these claims with facts alleged in denied claims 6 through 10 and 14.
The California Supreme Court summarily denied claims 25 and 26 (SPet. Claims W and T respectively) raised in Petitioner's state petition for habeas corpus.
The state supreme court found Petitioner knowingly, voluntarily and intelligently waived rights when it considered the matter on direct appeal. This Court agrees, for the reasons discussed in claims 6, 14 and 21-24. The trial court allowed Toton to inform Petitioner of his constitutional rights, which Petitioner acknowledged he was waiving "freely and voluntarily."
The State Supreme Court also considered on direct appeal Petitioner's argument that the submission for court trial was a "slow plea" unaccompanied by waivers sufficient under Boykin-Tahl. That court found no "slow plea" because defense counsel called and cross-examined witnesses, retained the right to present additional evidence, attempted to impeach Hernandez, moved to strike testimony, moved for judgment of acquittal on insufficiency of the evidence, argued against first degree murder, and made an extensive closing argument.
At trial, Petitioner was questioned about the charges pending and consequences of conviction:
(CT 889; RT-65a-68a.)
Petitioner was given time to consider the waiver which did not become final until the following day, when he confirmed the waiver and that it was made freely and voluntarily. (CT 891-892; RT-115a.)
The Court finds the "slow plea" claim is not adequately supported by the state record. Petitioner consulted with defense counsel prior to the waivers and submission to court trial; repeatedly stated his desire to plead guilty; and acquiesced to counsel's urging to allow cross-examination and argument in his defense. The California Supreme Court's determination of facts was not unreasonable in light of the evidence above and Petitioner's desire to plead guilty. (RT — 87a.) That court's rejection of Petitioner's claims neither contrary to, nor an unreasonable application of, United States Supreme Court precedent.
Petitioner maintains Dr. Matychowiak, who conducted his psychiatric evaluation in November 1987, erred in finding him competent to stand trial because: (1) the opinion was based on a single, inefficient interview, (2) the conclusion relies almost exclusively on Petitioner's statements and are not corroborated by independent evidence, (3) insufficient information was obtained about several important factors, including Petitioner's history of severe childhood trauma and extreme neurological deficits, (4) the effect of signs of potential brain damage, including history of head injury, paint sniffing and PCP use, as well findings of poor "theoretical and general judgment" were not considered, (5) the effect of signs of depression, suicidal intentions, and self-mutilation were not considered, (6) no questions were asked about Petitioner's understanding of the nature of the proceedings or his ability to consult with or assist counsel, and (7) the diagnosis of borderline personality disorder with a past history of substance abuse did not follow logically from findings of head injury, severe drug abuse, depression, suicidal tendencies and poor theoretical and general judgment.
A defendant is not competent to stand trial if he lacks "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and a rational as well as factual understanding of the proceedings against him."
Petitioner has not made a sufficient showing that he was erroneously deemed mentally competent. Petitioner's contention his neuropsychological deficits (organic impairments) and neurological and psychiatric disorders (psychiatric impairments) prevented him from competently standing trial and making the above waivers fails substantively for the reasons stated in claim 6. Petitioner did not suffer hallucinations or delusions memory lapse at this time. (SPet. Ex. 520, p. 5.) He wanted to enter a guilty plea, though his attorneys had not allowed him to do so. (
As discussed above, defense psychologist Donaldson, who examined Petitioner prior to the preliminary hearing, found Petitioner to be of average intelligence with no deficits in reality testing or thought disorder. (SPet. Ex. 106, p. 2.) Defense counsel were entitled to rely on the expert's opinions, and were not obligated, without a request for information from the expert, to investigate further in these regards.
Petitioner points to declarations included with the state habeas petition by psychologists Doane and Froming (SHCP Exhs. 105 and 114 respectively) and psychiatrist Foster (SHCP Ex. 111). These experts opine that Petitioner had a history of heavy paint sniffing and PCP abuse (SHCP, Ex. 111, ¶ 90), and suffered significant organic brain damage and neuropsychological deficits and post-traumatic stress disorder at the time of his trial waivers. (SHCP Exhs. 105, ¶¶ 153-165; 111, ¶¶ 60-69). Petitioner contends that, as of December 1987, he was considered a "mentally unstable inmate' based on his bizarre behavior, overwhelming guilt and depression, instability, possible hallucinations and a suicide attempt. (SCHP Ex. 601.)
However, to the extent that these declarations can be considered evidence, they were not presented to the California Supreme Court in his appeal. As to claims adjudicated in the appeal, the Court cannot consider these declarations here.
Due process requires a state to provide access to competent psychiatric assistance when a defendant demonstrates that his sanity at the time of the offense will be a significant factor at trial.
Dr. Matychowiak was aware of Petitioner's history of substance abuse (SPet. Ex. 520, pp. 3-4), and found Petitioner competent to stand trial. (SPet. Ex. 520, pp. 2-6.) Dr. Matychowiak found that Petitioner understood his situation and the court process, had the capacity to cooperate with his attorney and wanted to plead guilty and "get it over with." (SPet. Ex. 520, pp. 2-6.) Moreover, Petitioner's coherent interaction with the trial court and counsel, and defense counsel's failure to raise any competency concern, are some evidence Petitioner was then competent.
For the reasons stated, a fair-minded jurist could have found that the state court rejection of these claims was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claims 25-26 are denied.
In his next claim, Petitioner alleges the trial court misapplied the California Shield Law to reporter Trihey's testimony, violating Petitioner's rights to confrontation, due process, a fair trial and compulsory process under the Sixth, Eighth, and Fourteenth Amendments.
The California Supreme Court rejected this claim on direct appeal.
The California Shield Law
The state supreme court considered this claim and noted the burden on Petitioner:
Trihey testified during the guilt phase subject to invocation of the newsperson's shield law. He testified that during interviews that Petitioner had told him he was "triple murderer" and that "all three were killed for their Social Security checks." (RT 18.) These statements were published in the
Toton objected to use of the newsperson's shield law to protect unpublished information in Trihey's possession. The trial court ruled for such protection, limiting Toton's cross-examination to only published information and finding that impeachment of Trihey was not at issue. (RT 57-59.) Toton then decline further cross-examination of Trihey. (RT 65.)
Petitioner alleges that the trial court's misapplication of California Shield Law to reporter Trihey's testimony caused defense counsel Toton to decline any cross-examination of Trihey, denying Petitioner an effective defense.
The state court found Petitioner failed to carry his burden:
The state supreme court also rejected Petitioner's assertion that counsel's failure to cross-examine Trihey before closing argument denied him the effective assistance of counsel under article I, section 15 of the California Constitution, and the Sixth and Fourteenth Amendments to the federal Constitution, noting that:
The state court was not unreasonable in rejecting the claim. Petitioner does not make an evidentiary showing identifying how and why unpublished interview information sought from Trihey differed from that in the record and would likely change the result in his proceeding. The state court, having found that impeachment of Trihey was not in issue,
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."
Petitioners claim fails under this standard. The trial judge was able to evaluate Trihey's credibility and motivations in testifying, expressly found that impeachment of Trihey was not in issue. (RT 59.) Toton was afforded the opportunity to cross-examine Trihey, both about Petitioner's statements and any inconsistency therein (RT 51, 54-57), as well published statements by Hernandez and by Seeley which alleged were attributed to Petitioner. (RT 51-53.)
The record does not support claimed denial of confrontation and fair trial. Any confrontation clause error was harmless, for reasons discussed in claims 1-4 there was substantial evidence of guilt even without Trihey's testimony.
The trial court verdict accorded only slight evidentiary value to Trihey's testimony. Defense counsel Toton successfully argued to minimize the significance of Trihey's testimony regarding robbery motive. (RT 175-183, 235-236.) Any claim of due process and compulsory process error fails because it is not reasonable to believe any evidence suppressed might have affected the outcome of trial for reasons discussed in claims 1-26.
Accordingly, the Court finds that the California Supreme Court's determination of facts was not unreasonable in light of the evidence, and its rejection of this claim was neither contrary to, nor an unreasonable application of, United States Supreme Court precedent.
Claim 27 is denied.
In claims 28 through 33, Petitioner alleges instances of prosecutorial misconduct during the guilt and special circumstance phase
The Supreme Court held that if the state fails to disclose exculpatory evidence in violation of
The Supreme Court has held that a federal court can grant habeas relief on a constitutional trial error claim only if the error had a "substantial or injurious effect" on the verdict.
The Court in Kyles also held that once a habeas petitioner establishes the "reasonable probability" of a different result, the error cannot subsequently be found harmless under
A petitioner is entitled to habeas corpus relief if the prosecutor's misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process."
Any claim of prosecutorial misconduct must be reviewed within the context of the entire trial.
If prosecutorial misconduct is established, and it was constitutional error, the error must be evaluated pursuant to the harmless error test set forth in
In this claim, Petitioner alleges that information tending to undermine the credibility of jailhouse informant Hernandez, that Hernandez was a heroin addict who gave testimony motivated by Detective Stratton's offer of a deal over pending heroin and probation violation charges and to avoid being suspected in the Bocanegra murders, was withheld by the prosecution.
The California Supreme Court summarily denied claim 28 (SPet. Claims U) raised in Petitioner's state petition for habeas corpus.
Here the state court could reasonably have found that Petitioner was not prejudiced by alleged prosecution failure to disclose information about jailhouse informant Hernandez. The record in this matter shows that the defense had the benefit of Hernandez's arrest report and presumptively was aware of his criminal record including any matters relating to substance abuse. (SPet. Ex. 409, pp. 1-2.) The defense was aware of Hernandez plea deal and cross-examined Hernandez regarding it. (CT 576-577; RT 2850-51.) Facts surrounding Hernandez alleged heroin addiction were equally available to defense counsel through discovery. (CT 654-676.)
Petitioner has not made any sufficient showing in the evidentiary record that Hernandez testified falsely by omitting charges covered by plea bargain. These "omitted" charges were resolved outside the plea bargain under which Hernandez testified. (SPet. Ex. 508, p. 6.) Contrary to Petitioner's assertion, the record reflects that it was Hernandez who initiated contact with the authorities. (RT 2857; CT 576-77; SResp. Ex. C, pp. 1-2.) Petitioner's allegation that Hernandez's testimony was coerced by detective Stratton, and false, fails substantively for reasons discussed in claims 1-4, ante. As discussed in those claims, Hernandez testimony was not inconsistent with the physical evidence. (CT 355, 378-80.)
Given the foregoing and the extended cross-examination of Hernandez by Toton and the consistent physical evidence, the state court could reasonably have found it unlikely that allegedly undisclosed evidence would have affected assessment of witness' credibility and, given Petitioner desire to plead guilty, the result of the proceedings.
Respondent contends claim 28 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
For the reasons stated, a fair-minded jurist could have found that the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 28 is denied.
In this next claim, Petitioner alleges that Hernandez's notes of conversation with Petitioner, which might have provided a basis to impeach Hernandez, were not safeguarded by police and the prosecution and were lost.
The California Supreme Court summarily denied claim 29 (SPet. Claims V) raised in Petitioner's state petition for habeas corpus.
According to the court in
The Ninth Circuit used the
Where the government fails to preserve evidence that is only potentially exculpatory, the right to due process is violated only if [the evidence] possesses "an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."
The state court could reasonably have found there was no bad faith failure to preserve potentially useful evidence. The record does not readily suggest Hernandez made the notes for the prosecution or as their agent, (CT 74, 477-499, 503, 575-577; SResp. Ex. C, pp. 1, 3), or prosecutorial bad faith in failing to take custody of and preserve potentially material evidence.
Respondent contends claim 29 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
For the reasons stated, a fair-minded jurist could have found that the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 29 is denied
Petitioner next claims that criminalist Laskowski, who testified to two different sets of footprints during Petitioner's proceeding, subsequently identified a third set during Reyes's separate trial for his role in the Bocanegra murders, undermining the prosecution's argument at Petitioner's trial that Petitioner and Joey were the only two who struck blows to the victims.
The State Supreme Court reviewed this claim in Petitioner state petition for habeas corpus (SPet. Claim X) and summarily denied it.
The knowing use of false or perjured testimony against a defendant to obtain a conviction is unconstitutional.
A conviction obtained by the knowing use of perjured testimony "must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."
To warrant habeas relief, Petitioner must establish that: 1) The testimony was actually false; 2) The prosecution knew or should have known it to be false; and 3) There is a reasonable likelihood that the false testimony could have affected the jury's verdict.
There is no sufficient showing Petitioner was prejudiced by presenting the testimony of criminologist Laskowski regarding the shoe tread pattern photographs taken at the Bocanegra crime scene. The state court could reasonably have found that, during Petitioner's trial, Laskowski and prosecutor Ryals were unaware of a third set of different footprints in the Bocanegra home. (CT 376; SResp. Ex. B.) Moreover, there is not a reasonable possibility that testimony of a third set of footprints would have affected the outcome of Petitioner's trial.
Any attempt by defense counsel to argue that Reyes rather than Petitioner struck blows to the victims is rebutted by the record (CT 77-78, 479-84, 487-89, 495, 500-05; RT 181; SPet. Exhs. 700-701) and Petitioner's express desire to plead guilty. (SPet. Ex. 520, p. 2; see CT 891-92; RT [5/16/88] 7; RT-108a-155a.) Petitioner's statements that he assisted Joey in murdering Mr. Bocanegra and Mrs. Bocanegra combined with Petitioner's desire to plead guilty suggests no reasonable likelihood of a different result had evidence of a third footprint been presented. The state record in this matter does not demonstrate that Reyes guilty plea was prompted by discovery of the third shoe print. (SPet. Ex. 139, p. 2.)
Petitioner fails to demonstrate that no reasonable jurist could have found that he failed to make a prima facie case that the prosecution knowingly used false or perjured evidence with respect to Laskowski's testimony.
Respondent contends claim 30 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
For the reasons stated, a fair-minded jurist could have found that the state court rejection of these claims was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 30 is denied.
Petitioner alleges in this claim that pathologist Holloway's testimony was untruthful because Dr. Holloway stated at the preliminary hearing that victims' scalp wounds were "entirely" consistent with one weapon wielded by one person, but later stated at the penalty phase he found only "partial" consistency in these matters.
The State Supreme Court reviewed this claim in Petitioner state petition for habeas corpus and alternatively denied it on the merits and as procedurally barred.
Petitioner cites to facts alleged in claim 10, ante. He argues that had Holloway testified truthfully at the preliminary hearing, a three assailant theory might have discredited Hernandez's testimony that only two assailants struck blows to the victims. However, the Court is not convinced that Dr. Holloway's erroneous testimony precluded a theory that more than one perpetrator and more than one weapon inflicted the scalp wounds on Mr. Bocanegra and Mrs. Bocanegra; Toton argued as much. (RT 187-191.)
Dr. Holloway testified at the preliminary hearing that Mr. Bocanegra's head wounds were entirely consistent with being inflicted by one person (CT 118-119, 134), similar to Mrs. Bocanegra's head wounds (CT 118, 155-156, 159), and were consistent with being inflicted by the same type of instrument (CT 118-119), though not necessarily the identical instrument. (CT 131-134.)
Dr. Holloway later testified at the penalty phase that he had erred, that Mr. Bocanegra's head wounds were not entirely consistent with Mrs. Bocanegra's (RT 2704-2706, 2720-2721, 2725), that is they were only partially consistent (RT 2721-2722, 2725), and that he could not conclude from the autopsy evidence how many assailants were involved in the attack on Mr. Bocanegra and Mrs. Bocanegra. (SPet. Ex. 120, p.3.)
Even so, the state court could reasonably have found that Holloway and prosecutor Ryals were not aware of the error at the preliminary hearing. (SResp. Ex. B.)
There is no sufficient showing Petitioner was prejudiced by pathologist Holloway's erroneous interpretation of scalp wounds of Mr. Bocanegra and Mrs. Bocanegra. The state court could reasonably have found that Holloway's erroneous testimony that Mr. Bocanegra's scalp wounds were "entirely" consistent with Mrs. Bocanegra's did not affect the outcome of Petitioner's trial.
Any attempt by defense counsel to argue Reyes rather than Petitioner struck blows to the victims is rebutted by the record (CT 77-78, 479-84, 487-89, 495, 500-505; RT 181; SPet. Exhs. 700-701) and Petitioner's expressed desire to plead guilty. (SPet. Ex. 520, p. 2; CT 891-92; RT [5/16/88] 7; RT-108a-155a.) A mere inconsistency in testimony does not establish that a prosecutor knowingly permitted the admission of false testimony.
Respondent contends claim 31 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
For the reasons stated, a fair-minded jurist could have found that the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 31 is denied.
Petitioner claims here that prosecutor Ryals' falsely argued the two assailant theory when the evidence (i.e., the third set of footprints and a bloody palm print on the doorknob and information from Seeley) supported Reyes's presence in the Bocanegra home.
This claim was reached and summarily denied in Petitioner's state petition for habeas corpus (SPet. Claim Z).
The California Supreme Court declined to reach the claim that Prosecutor Ryals committed such prejudicial misconduct in her guilt phase closing argument because the asserted evidence of misconduct, allegedly contrary statements by prosecutor Ryals to the court during subsequent, separate pretrial hearings in the prosecution of Reyes, were not within the appellate record or matters judicially noticed. This Court cannot consider evidence outside the state record.
The state court could reasonably have determined that Petitioner was not prejudiced by the prosecution's two assailant argument for reasons discussed in claims 1-4 and 28-31. The prosecution could rely upon inference from trial court evidence that supported the two person theory, i.e., that only Joey and Petitioner were in the Bocanegra home at the time of the murders. Notably, Petitioner did not challenge the evidence demonstrating that he struck Mr. Bocanegra (CT 481-82; RT 169, 184-185, 188, 196; RT 207) and that he grabbed Mrs. Bocanegra and told Joey to "shut her up" (CT 482-83, 504; RT 190-191). Evidence that, at some point, Reyes was present in the house does not necessarily establish his participation in the murders. (See CT 202-203.)
Additionally, no theory inconsistent with the two assailant theory was advanced in Reyes's separate criminal proceedings. Reyes pled guilty in his criminal proceeding on the theory he participated in the Bocanegra murders only by acting as a lookout during the murders and then assisting Joey and Petitioner after the murders.
The Court does not find that Petitioner's trial was fundamentally unfair. The two assailant theory was consistent with the evidence at the guilt and special circumstance phase and inference therefrom and was not objected to by Toton. (RT 147-149, 191, 211-12; claims 1, 3, 10.)
Respondent also contends claim 32 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
Accordingly, a fair-minded jurist could have found that the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
In this next claim, Petitioner alleges cumulative error from prosecutorial misconduct.
This claim was reached and summarily denied in Petitioner's state petition for habeas corpus (SPet. Claim AA).
Petitioner cites to facts alleged in claims 28-32, ante, in support of this claim. However, the Court finds Petitioner has not made a sufficient showing of prejudiced by cumulative error from prosecutorial misconduct. The state court could reasonably have found that Petitioner failed to established prosecutorial misconduct causing him prejudice for the reasons discussed above in claims 28-32. These claims are insubstantial when considered cumulatively.
Respondent contends claim 33 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
Accordingly, for the reasons stated, a fair-minded jurist could have found that the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 33 is denied.
The applicable legal standard is set forth above, in the Court's analysis of claim 18.
In this next claim, Petitioner alleges that constitutional violations during the guilt and special circumstance phase, claims 1 through 33, ante, when considered together and taken as a whole, prejudicially caused an unfair guilt trial, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.
The California Supreme Court summarily denied claim 34 (SPet. Claim BB) raised in Petitioner's state petition for habeas corpus. In re Sanchez, S049502 (DD).
The state supreme court also considered this claim on appeal and rejected it noting:
Where none of the alleged claims state a violation of constitutional law, there is no reason to grant habeas relief based on cumulative error. Rupe, 93 F.3d at 1445. For the reasons stated in claims 1-33 above, this Court finds claim 34 fails substantively for reasons discussed in claims 1-33.
Respondent also contends claim 34 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
Accordingly, the state court rejection of claim 34 was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. Nor was the state court's ruling based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 34 is denied.
A habeas petition must allege that the petitioner's detention violates the Constitution, a federal statute, or a treaty. 28 U.S.C. § 2241(c)(3);
The Supreme Court has stated that "when a State chooses to offer help to those seeking relief from convictions," due process does not "dictat[e] the exact form such assistance must assume."
Accordingly, a claim challenging the adequacy of state appellate review is not cognizable on federal habeas. Under well-established principles of law and comity, a federal court has no jurisdiction over state courts to assess the adequacy or competence of their review since appellate review is not constitutionally required.
Petitioner alleges in this claim that the California Supreme Court affirmed his conviction and sentence on the basis of material misstatements and omissions of issues and facts, and then denied rehearing, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
The state supreme court considered this claim in the petition for rehearing. That court issued a modification opinion upon denial of rehearing (see 12 Cal. 4th 825b), corrected errors and withdrew the "Alleged Prosecutorial Misconduct" section of its opinion.
Petitioner alleges that the state supreme court erred by not re-assessing or re-analyzing legal issues in light of the modification.
Appellate review of California's capital cases is authorized by California Penal Code sections 190.4(e) and 1239(b). At the time of Petitioner's trial, section 1239(b) provided, "[w]hen upon any plea a judgment of death is rendered, an appeal is automatically taken by the defendant without any action by him or his counsel." Even where defendant's counsel takes no action, California's high court has a duty to examine the complete trial record to "ascertain[] whether defendant was given a fair trial."
Section 190.4 provides an automatic application for modification of a verdict imposing the death penalty, by which the trial judge reviews the evidence and reweighs the section 190.3 aggravating and mitigating circumstances before imposing sentence based on the jury's verdict. Denial of modification of a verdict of death is reviewed on the automatic appeal pursuant to section 1293(b). Such review includes the "evidence relied on by the [trial] judge."
Aside from the state statutory duty to examine the complete trial record for fairness and the federal constitutional requirement that an appeal be available to indigent appellants, there are no obligations placed on the California Supreme Court that could cause a violation of an appellant's federal constitutional rights. Sections 190.4(e) and 1239(b), and the cases construing them, provide the mechanism for meaningful appellate review.
Petitioner alleges misstatements regarding the Bocanegra murders; misstatements and omissions regarding disciplinary proceedings against Toton; misstatements and omissions regarding reporter immunity under California Shield Law; misstatements regarding alleged prosecutorial misconduct; and other misstatements and omissions. Nonetheless, the state supreme court's affirmance was based on its modified opinion. Reasonably implicit in the modified opinion is that court's re-examination of the issues underlying its issuance of the modified opinion.
Additionally, Petitioner has not made a showing on the evidentiary record that the modified opinion contained any misstatements or omission. In that no material misstatements or omissions are identified in the modified opinion, and given that court's adjudication of all Plaintiff's claims on the merits, this Court cannot find the state supreme court's determination of facts to be unreasonable or unfair on the record before it.
Respondent contends claim 35 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
Accordingly, the state court rejection of claim 35 was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. Nor was the state court's ruling based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 35 is denied.
Supreme Court cases have established that a state capital sentencing system must: "(1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime."
A state may narrow the class of murderers eligible for the death penalty by defining degrees of murder.
In this claim Petitioner alleges that California's death penalty scheme in effect in 1987 was unconstitutional because it was arbitrary and unpredictable, failing to genuinely narrow class of murders eligible for the death penalty, violating his Eighth and Fourteenth Amendment rights.
The California Supreme Court summarily denied claim 34 (SPet. Claim YY) raised in Petitioner's state petition for habeas corpus.
The state supreme court also considered this claim on appeal, as follows:
Petitioner claims most of those who could be convicted of first degree murder are statutorily eligible for the death penalty, yet only a small portion of murderers who are statutorily eligible for the death penalty are actually sentenced to death.
However, in California, a defendant may be sentenced to death for first-degree murder if the trier of fact finds the defendant guilty and also finds true one or more of [then] 19 special circumstances listed in Cal. Penal Code § 190.2. As relevant here, one of the circumstances is: "[t]he defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree." Cal. Penal Code § 190.2(a)(3). There is no question that this sentencing scheme satisfies clearly established constitutional requirements. First, the subclass of defendants eligible for the death penalty is rationally narrowed to those who have committed multiple murders.
In
This Court finds that state supreme court could reasonably have determined that California's death penalty scheme in effect in 1987 did not fail to genuinely narrow the class of murderers eligible for the death penalty. California's scheme, which narrows the class of death eligible offenders to less than the definition of first degree murder and permits consideration of all mitigating evidence, has been approved by the United States Supreme Court,
The state court rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. Nor was the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution,
Claim 36 is denied.
The legal standard is set out in the preface to claims 28-32.
Petitioner next claims prosecutorial misconduct in using, failing to correct and arguing false evidence by Bakersfield Police Detective Boggs.
The California Supreme Court summarily denied claim 37 (SPet. Claim CC) raised in Petitioner's state petition for habeas corpus.
The California Supreme Court also considered and rejected this claim on appeal, finding that the defense had waived the issue on appeal,
As discussed above, the knowing use of false or perjured testimony against a defendant to obtain a conviction is unconstitutional.
In this claim, Petitioner alleges that Boggs, testifying at the penalty phase, falsely attributed to Petitioner a statement actually made by Reyes, that after the Tatman murder he "kicked back, drank some whiskey, smoked some dope, ate some food, and mostly relaxed for the rest of the evening." (RT 2663-2664.) Though Boggs correctly attributed the statement to Reyes at the preliminary hearing (CT 308), Petitioner contends that prosecutor Ryals did not correct the false testimony at the penalty phase, instead using it to highlight Petitioner's lack of remorse. (RT 2619, 3036.)
The evidence before the state court did not reasonably suggest Boggs knowingly testified falsely, or that Prosecutor Ryals was aware of the errant testimony. (SResp. Ex. B.) Boggs states in his June 29, 1995 declaration that he mistakenly testified at the penalty phase that Petitioner, rather than Robert Reyes, stated that:
SPet. Ex. 100. The state court could reasonably have determined that Prosecutor Ryals did not know that Boggs's testimony was erroneous and did not knowingly rely on erroneous testimony. (SResp. Ex. B.) Petitioner has not pointed to evidence before the state court demonstrating either Ryals or Boggs was aware of the error in Boggs's testimony. Defense counsel Toton and Frank, who both were present at the preliminary hearing, were themselves unaware of the erroneous testimony. (SPet. Exhs. 137, p. 12; 113, p. 10.)
Nor does there appear to be a reasonable likelihood the error affected imposition of the death penalty,
For these reasons, the state court rejection of the claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding viewed most favoring the prosecution,
Claim 37 is denied.
Petitioner next claims prosecutorial misconduct in using false evidence at penalty phase by Criminalist Laskowski. He alleges that Laskowski falsely testified at the penalty phase, as he did in the guilt and special circumstance phase, that there were only two sets of footprints at the Bocanegra home after the murders, only later discovering a third set of footprints. Petitioner further argues that, as at the guilt and special circumstance phase, prosecutor Ryals used a two-person theory to linking Petitioner to the murders.
The California Supreme Court summarily denied claim 38 (SPet. Claim DD) raised in Petitioner's state petition for habeas corpus.
Petitioner cites to facts alleged in claims 30 and 32 in support of this claim. However, the state court could reasonably have found that the claim lacks merit. At the preliminary hearing (CT 376) and at the penalty phase of Petitioner's trial (RT 2813), Laskowski testified he was able to determine from crime scene photographs that there were two types of shoes in the kitchen. The following year he re-examined the photographs and determined that there were three types of shoe patterns in the kitchen and outside the Bocanegra home. (SPet. Ex. 121, p. 2; Ex. 417, pp. 1-2; SHCP Ex. 137, Ex. A.)
However, Petitioner does not make an evidentiary showing that either Laskowski or Ryals knew of the error at the time of the penalty phase. The Court finds that the Claim fails substantively for reasons stated in Claims 30 and 32, ante. The state court could reasonably conclude that neither Laskowski nor Ryals knew the former's interpretation was erroneous.
Nor is there a reasonable likelihood the erroneous testimony affected the jury's imposition of the death penalty,
A fair-minded jurist could conclude from the evidence and statements Petitioner made to Hernandez and Trihey, that Petitioner assisted Joey in murdering Mr. Bocanegra and Mrs. Bocanegra (RT 2843-45, 2851-54, 2856-59) and that he desired to enter a guilty plea. (SPet. Ex. 520, p. 2; see CT 891-92; RT [5/16/88] 7; RT-108a-155a.) Evidence suggesting the presence of a third non-victim in the Bocanegra Home does not does demonstrate or suggest a third person was present during the murders. (See claim 30, 32, ante.)
The Court finds the state court rejection of the claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. Nor was the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution,
Claim 38 is denied.
Petitioner next alleges prosecutorial misconduct through use of false evidence at the penalty phase by Pathologist Holloway. He alleges that Holloway falsely testified at the penalty phase that Mr. Bocanegra's head wounds were a "contributory cause" of death, contradicting his guilt phase testimony and prosecutor Ryals argument based thereon that head wounds neither caused nor contributed to Mr. Bocanegra's death. Petitioner claims Ryals knew or should have known this testimony was false.
The California Supreme Court summarily denied claim 39 (SPet. Claim EE) raised in Petitioner's state petition for habeas corpus. In re Sanchez, S049502 (DD).
The State Supreme Court also considered this claim on appeal and found that:
Under
Here, Dr. Holloway's testimony was consistent from preliminary hearing through penalty phase that Mr. Bocanegra died from three fatal stab wounds to the torso. (RT 2697, 2699-2700.) Prosecutor Ryals argued as much in her opening statement. (RT 2620.) Holloway's preliminary hearing characterization of scalp wounds as an "other condition" attendant to fatal stab wounds, (CT 112-119, 158-59), and Holloway's penalty phase characterization of the same scalp wounds as a "contributory cause" attendant to fatal stab wounds, (RT 2706), was not erroneous because Holloway used the terms interchangeably to characterize non-fatal wounds. (SPet. Ex. 120, pp. 1-4.) The same applies to Mrs. Bocanegra, who also suffered scalp wounds but died from stab wounds. (CT 115-117, 153-154.)
For the reasons stated and those discussed in Claims 31 and 32, it is not reasonably likely Holloway's characterization of Mr. Bocanegra's head wounds as either "other conditions" or a "contributory cause" misled the jury in its assessment of Petitioner's culpability. The state court was not unreasonable in concluding that:
A fair-minded jurist could conclude from the evidence and statements Petitioner made to Hernandez and Trihey, that Petitioner assisted Joey in murdering Mr. Bocanegra and Mrs. Bocanegra (RT 2843-45, 2851-54, 2856-59) and that he desired to enter a guilty plea. (SPet. Ex. 520, p. 2; see CT 891-92; RT [5/16/88] 7; RT-108a-155a.)
Respondent contends claim 39 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
This Court does not find that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution,
Claim 39 is denied.
In his next claim, Petitioner alleges prosecutorial misconduct by failure to disclose exculpatory evidence and using false evidence by Hernandez at the penalty phase.
The California Supreme Court summarily denied claim 40 (SPet. Claims FF) raised in Petitioner's state petition for habeas corpus.
As noted, there are three components of a
Additionally, under
Petitioner cites to claims 2, 7 and 28 in support of this claim. He alleges Hernandez testified falsely regarding his deal with the prosecution — that the prosecution had only promised to tell the sentencing judge of Hernandez's testimony, when the circumstantial evidence, (SHCP Exhs. 510, 511), suggested that he had a promise of probation in exchange for his testimony; and that Hernandez concealed that he was in custody on a heroin charge; and falsely stated he contacted the police when detective Stratton initiated the contact.
Petitioner's claim is unpersuasive. He has not made an evidentiary showing that there was an undisclosed sentence concession or that Hernandez testified falsely. (See claims 1-4 and 28, ante.) The record that was before the state court does not reasonably support any undisclosed sentence concession(s). (See SResp. Ex. B.) Hernandez's testimony that he contacted police, through a request made to a jail deputy (CT 477; see RT 2840) is not materially false and could not reasonably have affected the jury's imposition of the death sentence given the noted substantial evidence against Petitioner. Petitioner claims, but makes no evidentiary showing that Hernandez was a heroin addict.
For the reasons stated, a fair-minded jurist could have found that the state court rejection of claims by the modified opinion was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 40 is denied
Petitioner next claims prosecutorial misconduct in Losing/Destroying Exculpatory Evidence at Penalty phase. He claims the police or prosecution lost or destroyed Hernandez's contemporaneous notes of conversations with Petitioner; notes which could have been used to impeach Hernandez.
The California Supreme Court summarily denied claim 41 (SPet. Claims GG) raised in Petitioner's state petition for habeas corpus.
Where the government fails to preserve evidence that is only potentially exculpatory, the right to due process is violated only if [the evidence] possesses "an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."
For the same reasons state in claim 29, ante, Plaintiff has not made a sufficient evidentiary showing that Hernandez acted for the police, or that the police and prosecution were required to preserve alleged notes of conversations Hernandez had with Petitioner, or that the notes had material exculpatory value.
Respondent contends claim 41 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
A fair-minded jurist could have found that Petitioner failed to establish that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. Nor was the state court's ruling based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 41 is denied.
Petitioner next claims prosecutorial misconduct during penalty phase closing argument. The California Supreme Court summarily denied claim 42 (SPet. Claims JJ) raised in Petitioner's state petition for habeas corpus.
The California Supreme Court also considered this claim on appeal and found that the defense had not objected on this ground or sought a curative admonition at trial and thus waived the issue on appeal,
Petitioner alleges that prosecutor Ryals improperly argued and misstated evidence, that the Bocanegra and Tatman murders would not have occurred but for Petitioner's participation, that the jury was sentencing Petitioner for the Tatman murder, and that Petitioner stabbed Mr. Tatman to death, (See SHCP Ex. 124, ¶ 16), with a screwdriver (RT 2619.) Petitioner contends that the correct facts are that Petitioner was only vicariously liable in the murders, that Mr. Tatman was killed by blunt force rather than stab wounds (CT 109; RT 2695), and Petitioner was sentenced by the trial court to 25 years to life for the Tatman conviction.
The Court finds that the state court could reasonably have concluded this claim lacks merit. Petitioner contends the prosecution misled the jury into thinking it was sentencing Petitioner for the Tatman murder (RT 3047-3048), i.e., as a triple murderer (RT 3080), when in fact the trial court was responsible for sentencing Petitioner for the Tatman murder, which was a non-capital murder. (CT 1103; RT October 31, 1988 at p. 13.) Even if the prosecution argued that Petitioner played a principal role in the Tatman murder, the state court could reasonably have determined no prejudice resulted. The Tatman conviction was presented to the jury as evidence in aggravation. The jury was appropriately admonished and instructed in this regard. (RT 2615-2616; CT 979-1021; RT 3082-3097.) The record included testimony of pathologist, Dr. Holloway that Mr. Tatman died of blunt force injury to his chest. (RT 2695.) Nothing in the evidentiary record suggests the trial court's admonishment and jury instructions were not understood and followed. Moreover, the penalty phase evidence in aggravation was substantial as discussed in claims 1 through 4, ante.
The record suggests that, as to Mr. Tatman, it was Petitioner's decision to "hit the old man" and take his food and refrigerator, that Petitioner and Reyes entered Mr. Tatman's room, that Reyes made stabbing motions at Mr. Tatman with a screwdriver, and that Petitioner stole Mr. Tatman's possessions after witnessing his murder. (RT 2658-2666; SPet. Ex. 129, pp. 1-2.) Hernandez testified he told detective Stratton (RT 2848-2849; 2855-2856), that Petitioner told him that "[Petitioner] and two other men entered an old man's room at the Bakersfield Inn, that the old man was in a wheelchair, that they beat the old man, that he and the other men stabbed the old man with a screwdriver, and that they took the old man's money." (RT 2842, 2846-2848.) Detective Stratton testified to that effect. (RT 2858-2861.)
The jury was made well aware that Mr. Tatman's stabbing wounds were non-fatal injuries and that Petitioner's conviction for Mr. Tatman's murder was based on his aiding and abetting Reyes. (Id.; RT 235, 2693-2695.) Defense counsel made its argument to the jury that Petitioner did not intend to kill Mr. Tatman.
Ryals' argument that Petitioner had a principal role in the Bocanegra homicides, and that the Bocanegras would not have been killed without his assistance, did not in all reasonable likelihood mislead the jury or affect the death sentence imposed. The evidence weighed heavily against Petitioner as an aider and abettor of the homicides. Petitioner grabbed and held Mr. Bocanegra while Joey got a knife. (RT 2843, 2853-54.) Petitioner beat Mr. Bocanegra while Joey stabbed him. (RT 2696-2706, 2719-21, 2725, 2843-44, 2854, 2858.) Petitioner rushed Mrs. Bocanegra and told Joey to "shut her up." (RT 2844, 2858.) Petitioner pushed Mrs. Bocanegra into a back room and hit her on the head with a bar while Joey stabbed her. (RT 2710-14, 2720-21, 2725, 2752, 2844.) This occurred Mrs. Bocanegra's hands were bound and she was likely gagged. (RT 2708, 2723, 2749-51, 2754-55, 2774-2775.)
Petitioner's proffer of statements by jurors Bobbie Crowder (SHCP Ex. 124, ¶ 16) and John Rodriguez (SHCP Ex. 109, App. A, ¶ 3) suggesting they believed Petitioner to be equally culpable with Joey in the Bocanegra murders, even if such statements were competent evidence, does not reasonably demonstrate prosecutorial misconduct sufficiently significant to deny a fair trial or lack confidence in the verdict, given the above noted evidence in aggravation.
Given the unrebutted evidence presented at the penalty phase, the admonitions of the trial judge that argument is not evidence, the potential aggravating and mitigating effects of circumstances surrounding the Bocanegra murders, the state court could reasonably have found that the prosecution arguments above were not so prejudicial as to make trial fundamentally unfair. The multiple murder special circumstance in the Bocanegra murders and the substantial evidence in aggravation presented during the penalty phase show that the state court could reasonably determine the outcome would not likely have been different absent the alleged prosecutorial misconduct.
Generally, counsel are "given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom."
Accordingly, the state court rejection of the claim was not contrary to, or an unreasonable application of, clearly established federal law, and the state court's ruling was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution,
Claim 42 is denied on the merits.
The applicable legal standard is set forth above, in the preface to the Court's analysis of claims 6-18. The basic requirements of
In the context of the penalty phase, just as in the guilt phase, the Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that `[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
However, the Supreme Court has recognized that the duty to investigate does not require defense counsel "to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste."
"In assessing counsel's investigation, the Court must conduct an objective review of their performance, measured for reasonableness under prevailing professional norms,"
In order to demonstrate prejudice, Petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
In this claim, Petitioner alleges ineffective assistance of counsel by failure to seek sufficient continuance to prepare for penalty phase and avoid adverse publicity from defense counsel Toton's impending disbarment.
The California Supreme Court summarily denied claim 43 (SPet. Claim LL) raised in Petitioner's state petition for habeas corpus.
Petitioner states that defense counsel Frank was aware that proper penalty phase preparation had not been completed when the penalty trial started. Petitioner faults Frank for failing to fully investigate neurological, psychiatric, drug use and social history defenses. Petitioner points to retained social historian Dr. Wright, who found the penalty preparations disorganized. (SHCP Ex. 131, Att. B, ¶ 6.) This disorganization, according to Dr. Wright, was exacerbated by the accelerated penalty phase time line following trial waiver at the guilt and special circumstances phase, (SHCP Ex. 137, ¶ 16), and by defense counsel's delay in paying defense service providers. (SHCP Ex. 137, Att. B, ¶ 16.) Dr. Wright also suggested aspects of the penalty defense were not completed by the time of the penalty trial (SHCP Ex. 137, App. B, ¶¶ 11-14), such that defense counsel should have requested a continuance. (SHCP Ex. 137, ¶¶ 10-21.)
However, the state court could reasonably find here, as it did in claim 13, ante, that additional preparation time was unnecessary. Defense counsel consulted with a serologist and retained defense psychologist Donaldson in 1987. (RT [5/16/88] 3-4.) Defense counsel Frank, who was responsible for the penalty phase, had almost completed his preparation when, on July 14, 1988, Petitioner waived jury trial on guilt and special circumstances. (CT 892; RT-115a; SPet. Ex. 113, pp. 5-6.) By Frank's own estimate, his preparations were to be complete by July 25, 1988. (RT [5/16/88] 6.) This was reasonably sufficient time given that the penalty phase did not begin until September 21, 1988. (CT 949.) Defense counsel Frank was able to complete his defense investigation prior to the penalty phase. (RT [5/16/88] 3-6.) During this time, Frank retained Dr. Wright to prepare the social history (SHCP Ex. 137, Att. B, ¶ 3), and hired defense investigators Peninger and McGregor. (SHCP Ex. 124, ¶¶ 1-2.) Given the foregoing, the state court could reasonably have found Dr. Wright allegations relating to inadequate trial preparation, if considered evidence, to be unpersuasive.
Defense counsel, having already been granted a partially opposed three week continuance on the eve of trial, could reasonably have concluded that a further continuance was unlikely. (RT [5/16/88] 5-6; CT 713-714.) Moreover, a further continuance was contrary to Petitioner's stated desire to plead guilty to the Bocanegra murders. (SPet. Ex. 520, p. 2; SPet. Ex. 700.) Petitioner waived jury trial (RT [5/16/88] 7-8) and submitted guilt and special circumstances phase on the preliminary hearing transcript and the testimony of additional prosecution witnesses.
Petitioner also alleges his defense was affected by publicity of the pending disbarment proceedings against defense counsel Toton. Petitioner asserts that defense Counsel Toton received substantial adverse publicity in the
It is well-established that "juror impartiality . . . does not require ignorance."
When pretrial publicity is at issue, "primary reliance on the judgment of the trial court makes [especially] good sense" because the judge "sits in the locale where the publicity is said to have had its effect" and may base her evaluation on her "own perception of the depth and extent of news stories that might influence a juror."
Here, for the reasons stated, the California Supreme Court could reasonably have concluded that there was no reasonable likelihood that Petitioner did not receive a fair trial despite limited pretrial publicity.
Accordingly, the state court could have reasonably determined that there was no competent evidence of juror bias arising from Toton's state bar difficulties and related publicity. Petitioner has not established that defense counsel's failure to seek a further continuance to prepare for the penalty trial and to avoid adverse publicity fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
A fair-minded jurist could have found that the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 43 is denied.
Petitioner next claims ineffective assistance of counsel by the individual and cumulative failure to conduct additional investigation and present mitigating evidence in the Bocanegra homicides.
The California Supreme Court summarily denied claim 44 (SPet. Claim MM) raised in Petitioner's state petition for habeas corpus.
The Court finds that Petitioner has not made a sufficient showing that he was prejudiced by defense counsel's failure to further investigate and present mitigating evidence of the Bocanegra homicides, for the reasons discussed below.
The Court finds that, for reasons discussed in claims 2 and 7, the decision of defense counsel not to further investigate and impeach jailhouse informant Hernandez regarding substance abuse and heroin addiction (SCHP Exhs. 112, ¶ 10; 137, ¶ 37; 113, ¶ 34), and his changing testimony to inculpate Petitioner as an equal participant in all three homicides (CT 488; RT 2842-44), could reasonably reflect counsel's lack of knowledge of sufficient supporting facts. (SHCP Exhs. 137, ¶ 37; 113, ¶ 34; 112, ¶ 4.)
Additionally, it appears unlikely such impeachment would have been effective. See claims 2, 7, ante; see also Burger, 483 U.S. at 795 (failure to pursue fruitless or harmful investigation not unreasonable). The evidentiary record did not demonstrate that Hernandez, by virtue of his alleged substance addition, his plea deal, or otherwise, was motivated to and did testify falsely or inaccurately. (SPet. Ex. 900, pp. 4, 11; SResp. Ex. B.) Defense counsel Toton cross-examined Hernandez at the preliminary hearing and asked Hernandez about any undisclosed plea deal during cross-examination in the guilt and special circumstances phase. (CT 576-577.) Hernandez's testimony was consistent with Petitioner's statements and the physical evidence. (CT 355, 378-380; 576-77.) Hernandez was not offered any disposition of pending criminal matters prior to agreeing to testify at the Petitioner's proceeding. (Id.; See SResp. Ex. B.) Toton later cross-examined Hernandez during the penalty phase. Hernandez admitted a deal on a then pending charge in exchange for his testimony. (RT 2850-2857.) As discussed in claim 7, ante, Hernandez's testimony was not false or misleading.
Accordingly, the state court could reasonably have found that defense counsel were not deficient in the decision not to conduct additional investigation of Hernandez to impeach him.
The Court finds that for reasons discussed in claims 2 and 8, the decision of defense counsel not to further investigate alleged statements of jailhouse informant Charles Seeley regarding Reyes's involvement in the Bocanegra homicides, could have been a reasonable trial tactic given the evidentiary record. Toton had dealt with Seeley in a separate matter and based thereon doubted Seeley's credibility and whether the prosecution would call him. (SPet. Ex. 137, p. 4.) Seeley's version of events seemed contrary to the physical evidence at the Bocanegra crime scene. (SPet. Ex. 419, pp. 5-6, 17; CT 355-382.) See e.g., Denham, 954 F.2d at 1505-06 (9th Cir. 1992) (defense counsel not ineffective where decision not to call witness based on inconsistencies in witness's testimony).
Also, Seeley's testimony could reasonably have been viewed as more inculpating of Petitioner than was Hernandez's testimony. (SPet. Ex. 419, pp. 6-8, 18-19.) Seeley's testimony would have been subject to rebuttal by the substantial contrary evidence from Hernandez, Stratton, Trihey, as well as by the crime scene physical evidence.
Defendant counsel Frank, for his part, had a tactical reason for not interviewing Seeley to the extent any evidence provided by Seeley related only to the guilt and special circumstances phase that were handled by Toton. (See SPet. Ex. 113, p. 4.)
Accordingly, the state court could reasonably have found that defense counsel was not deficient in the decision not to conduct further investigation of Seeley and present him as a defense witness.
The Court finds that, for reasons discussed in claims 2 and 9, the evidentiary record could reasonably support as trial tactics, the failure of defense counsel to further investigate and present evidence about Joey's role in the murders of his parents including Joey's history of violence, violent temper, PCP use around the time of the murders, and the sudden fight with Mr. Bocanegra that preceded the murder. There was substantial evidence that Petitioner aided and abetted the Bocanegra murders with premeditation and deliberation. (See claims 1-8.) So much so that defense counsel chose not to object to the prosecution's two assailant theory.
Petitioner has not made an evidentiary showing of prejudice regarding evidence about Joey. In the face of such substantial evidence of guilt, the state court could reasonably have determined that a showing of Joey's temper and prior assaultive conduct would not have raised a reasonable doubt that Petitioner aided and abetted the premeditated and deliberate murders of Mr. Bocanegra and Mrs. Bocanegra. Moreover, such a defense was contrary to Petitioner's stated desire to plead guilty to the Bocanegra murders (SPet. Ex. 520, p. 2) and "dying for his crimes but dying with a clear conscience." (SPet. Ex. 700.) Petitioner waived jury trial and submitted guilt and special circumstances phase on the preliminary hearing transcript and the testimony of additional prosecution witnesses.
The state court could reasonably have found that the record did not suggest that evidence about Joey would have changed the result, given Petitioner's incriminating statements to detective Stratton and reporter Trihey and the crime scene evidence corroborated by Hernandez's testimony, (see claims 1-4, ante), supporting Petitioner's intent to aid and abet the murders.
The state court could reasonably have found that defense counsel was not deficient in the decision not to conduct additional investigation of Joey Bocanegra regarding his role in the murders of his parents.
The Court finds that, for the reasons discussed in claims 1, 3, 10, 38 and 39, the failure of defense counsel to further investigate crime scene evidence was not unreasonable.
Petitioner revisits his allegations relating to Laskowski's testimony in this proceeding that crime scene photographs showed two types of shoe prints in the Bocanegra kitchen, and Laskowski's subsequent re-examination of the photographs and identification of three types of shoe patterns in the kitchen and outside the Bocanegra home. (Pet. Ex. 121, p. 2; Ex. 417, pp. 1-2; SHCP 137, Ex. A.) Petitioner argues further investigation could have shown that Reyes, not Petitioner, caused the scalp wounds. However, Reyes admitted in subsequent proceedings that he served as lookout during the murders and entered the residence only afterwards to assist Petitioner and Joey. (SResp., Ex. A.) Evidence of Petitioner's shoeprint in the kitchen also undermines Seeley's testimony that Petitioner watched the assault on Mr. Bocanegra from the hallway. (SHCP, Ex. 419, pp. 6, 7, 22-23.) Evidence suggesting the presence of a third non-victim in the Bocanegra Home does not does demonstrate or suggest a third person was present during the murders. (See claim 30, 32, ante.) Significantly, defense counsel did not to object to the two assailant theory (SHCP Ex. 137, ¶ 22) and the state record suggests this decision was not unreasonable.
Petitioner also revisits testimony by Dr. Holloway that the scalp wounds were non-fatal. (CT 119, 158-159.) Petitioner argues that further investigation could have shown the blows to the head were not of such force as would show an intent to kill. However, as discussed in claims 1 and 3, there was substantial evidence of Petitioner's aider and abetter liability. The violent nature and extended duration of the struggles with Mr. Bocanegra and Mrs. Bocanegra, with Joey taking time to get a kitchen knife, and Petitioner attempting to subdue and restrain each of the victims during Joey's assault on them, along with the multiple stab and blunt force wounds inflicted during room to room struggle with the victims, reasonably suggest a plan to kill them. (CT112-120; 149-156; 159; 167; 181; 192-194; 357-383; 479-483; 488.) Each victim suffered multiple stab wounds (id.) and was left unassisted to hemorrhage to death. (CT 114-119.) There was evidence Mrs. Bocanegra's wrists had been tied together and that she had been gagged. (CT 113, 149-150, 153.) She suffered 26 stab wounds, three fatal, and six scalp wounds during the struggle. (CT 115-116, 153-154.) Mr. Bocanegra was stabbed at least eight times and had nine scalp wounds. (Id.) Defense counsel could reasonably have determined to focus limited resources elsewhere.
Additionally, there is no reasonable likelihood that the foregoing testimony of Laskowski and Holloway affected the jury's imposition of the death penalty,
Defense counsel's failure to further investigate and rebut the prosecution's physical evidence supporting the two assailant theory was not unreasonable given the evidentiary record.
The Court finds that, for the reasons discussed in claims 2 and 6, the failure of defense counsel to further investigate and present mitigating evidence of Petitioner's organic brain damage and psychiatric impairments could reasonably be justified by a lack of supporting evidence. (SHCP Exhs. 113, ¶ 31; 139, ¶ 11; 136, ¶ 10.) The evidentiary record suggests that Petitioner was not under the influence of phencyclidine (PCP), marijuana, or alcohol at the time of the Bocanegra and Tatman murders. The evidence proffered by Petitioner suggests a history of substance abuse (SPet. Exhs. 105, pp. 64-65, 74-75; 110, p. 1; 119, p. 8; 123, p.1; 128, pp. 1-2), continuing through the weeks prior to the murders. (SPet. Ex. 105, pp. 85-87.) However, Respondent correctly points to the absence of competent evidence that Petitioner ingested and/or was under the influence of phencyclidine, marijuana, or alcohol on the days the Bocanegra and Tatman murders occurred.
As discussed in claim 6, defense psychologist Donaldson did not recommended to defense counsel that a neuropsychological evaluation be performed. Court appointed psychiatrist Matychowiak, following his November 1987 examination, found that Petitioner was not suicidal or delusional or suffering memory gaps (SPet. Ex. 520, p.5); that Petitioner planned to tell the judge he was guilty (Id. at 2); and that Petitioner understood the proceedings and could cooperate with counsel. (Id. at 6.) Petitioner told Matychowiak that he planned to tell the jury he was guilty and "get it over with." (SPet. Ex. 520, p. 2.) Dr. Matychowiak found Petitioner competent to stand trial. (SPet. Ex. 520, p. 2-6.)
The state court could reasonably have found that defense counsel were not deficient in the decision not to conduct additional investigation of mental state defenses.
Accordingly, all the foregoing allegations of failure to investigate and present mitigating evidence are insubstantial when considered cumulatively for the reasons stated. See Karterman, 60 F.3d at 580. For the reasons stated, a fair-minded jurist could have found that the state court rejection of this claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 44 is denied.
In his next claim, Petitioner alleges ineffective assistance by counsel's failure to object to admission of prejudicial crime scene and autopsy photographs.
The California Supreme Court summarily denied claim 44 (SPet. Claim NN) raised in Petitioner's state petition for habeas corpus.
The state supreme court also considered and rejected this claim on appeal:
A due process claim can be stated where graphic photos of victims make the trial fundamentally unfair.
Petitioner, citing in support to claim 56, post, alleges the jury was allowed to view inflammatory and prejudicial autopsy, crime scene and victim photographs (RT 2891-2892), depicting graphic and gory injuries unrelated to actions attributed to Petitioner, which should have been excluded under California Evidence Code section 352, and that caused the penalty trial to be fundamentally unfair. He claims there was no tactical reason not to object to these photographs.
The state record shows that defense counsel Toton did move to exclude all photographs during the guilt phase (RT-30a-33a). At the penalty phase, two autopsy photos of Mr. Bocanegra and Juanita's scalp wounds (People's Exhs. 13, 14) were admitted, over the defense's objection, (RT 2876, 2880-2281, 2285, 2891-2892), and the victim photos were admitted without objection. (RT 2891).
However, the state court could reasonably find that Petitioner was not prejudiced by introduction of the photos or failure of defense counsel to object to them. The Court agrees with the state court reasoning in finding the photographs relevant and probative of charges and elements including intent to kill, aggravation and penalty.
Nor does the failure to object necessarily demonstrate ineffective assistance.
Even without the photographs, it is not reasonably probable the jury would have returned a sentence less than death given the evidence in aggravation including the circumstances surrounding the murders of the Bocanegras and Mr. Tatman, and Petitioner's 1982 assaults on Ammarie and Pena. (RT 2863-2874.)
Accordingly, the state court could reasonable have found that Petitioner failed to make an evidentiary showing that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
It follows that the state court rejection of the claim was neither contrary to, or an unreasonable application of, clearly established federal law, nor based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Claim 45 is denied.
Petitioner next claims ineffective assistance by failure to contest prosecution evidence of lack of remorse.
The California Supreme Court summarily denied claim 46 (SPet. Claim OO) raised in Petitioner's state petition for habeas corpus.
Petitioner alleges that he was prejudiced by Boggs's false testimony attributing to Petitioner the lack of remorse shown by Reyes following the Tatman murder, i.e., that Reyes and Petitioner "kicked back, drank some whiskey, smoked some dope, ate some food, and just relaxed for the rest of the evening." (RT 2663-64; SPet. Ex. 100.) An error that Ryals also made in her opening argument. (RT 2619.) Petitioner faults his counsel for failure to cross-examine Boggs, and failure to introduce evidence of Petitioner's remorse expressed to reporter Trihey and his friends Robin and Debbie Lozano.
The Court is not persuaded by this claim. Petitioner's contention regarding to Boggs's allegedly false testimony and defense counsel's failure to cross-examine Boggs on this issue fails substantively for reasons discussed in claim 37, i.e., the state court could reasonably have concluded that prosecutor Ryals did not know of and knowingly rely upon Boggs's erroneous testimony, (SPet. Exhs. 137, p. 12; 113, p.10; SResp. Ex. B), and there is no reasonable likelihood the error affected the result of trial or caused an unfair trial.
Petitioner also alleges prejudice from Ryals's opening argument in which she made reference to Boggs's errant testimony. Under California law, the absence or presence of remorse is a factor relevant to the jury's penalty determination.
Additionally, there is not a reasonable probability that statements of remorse to Trihey and acquaintances, the Lozanos, even if taken as admissible evidence of remorse, could have affected the jury's imposition of the death penalty. Statements of remorse to Trihey were themselves inculpating. (SPet. Ex. 113, p. 12.) Moreover, a lack of remorse is in any event suggested by Petitioner's statements describing Mr. Tatman's murder and robbery, his intention to rob Mr. Tatman, how Reyes stabbed Mr. Tatman, and how Petitioner and Reyes then took Mr. Tatman's things back to their room. (RT 2658-2666.) Tactical reasons for not presenting remorse evidence are reasonably suggested by hearsay issues relating to Petitioner's proffer (Pet. 719) and the defense strategy to not admit guilt but rather focus on "residual or lingering doubt." (SPet. Ex. 113, pp. 8-12.)
The state court could have reasonably believed that Petitioner's confession to Boggs of the circumstances surrounding Tatman's murder and Petitioner's involvement in it would have undercut any sympathy toward him by the jury. (See RT 2658-2666.) Moreover, defense counsel could reasonably have decided that a lingering doubt defense and mitigating social history might well have been weakened by evidence of remorse. (See RT 3053-3055, 3063-3064.)
The Court finds that Petitioner has not established that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 46 is denied.
Petitioner next claims ineffective assistance by counsel's failure to investigate and present mitigation evidence regarding the 1982 Ammarie and Pena Crimes.
The California Supreme Court summarily denied claim 47 (SPet. Claim PP) raised in Petitioner's state petition for habeas corpus.
The trial record reveals Mr. Ammarie, the store keeper victim in one incident, testified at the penalty phase that, on May 7, 1982, Petitioner assaulted him when Ammarie refused to "get [Petitioner] some bacon." Petitioner stabbed Ammarie in the left shoulder and neck, took money and ran away, leaving Ammarie in the hospital for two weeks. (RT 2862-2866;
Petitioner contends that, as to the Ammarie and Pena crimes, defense counsel failed to investigate and present mitigating evidence of Petitioner's emotional and family turmoil, possible PCP psychosis, organic brain damage, and belief he acted in self-defense in these incidents. Petitioner claims there was no tactical reason for these omissions.
The Court finds this claim unavailing. Petitioner does not offer facts showing the nature and extent of the investigation conducted by defense counsel Frank, or what information if any, Petitioner provided to defense counsel Frank in preparation for the penalty phase, or what Petitioner did, if anything, to cooperate in developing mitigating penalty phase evidence. As the Supreme Court stated in
Petitioner faults defense counsel Frank for failure to consult with counsel who assisted Petitioner in the 1982 criminal proceedings. Yet Petitioner does not state what credible, probative mitigating information this consultation would have yielded over and above the police and court records relating to the 1982 convictions, which Petitioner concedes defense counsel undertook to obtain. (SHCP Exhs. 137, ¶ 35; 113, ¶ 30.)
Petitioner faults defense counsel's for a failure to investigate possible social and mental defenses contemporaneous to the 1982 crimes, including probable effects of alleged heavy PCP use. Petitioner offers in support the 1995 opinion of a clinical psychologist, Jeri Doane, as to the effect of losses and turmoil in his personal life (SPet. Ex. 105, pp. 75-78), as well as anecdotal assertions of Petitioner and others regarding potential mental and other defenses to his 1982 criminal conduct. (SPet. Exhs. 105, pp. 1-5, 79-82, 99-100; 802; 506, pp.6-8; 128, p. 2.)
But even assuming this type of mitigating information could be competent evidence, it does not suggest Petitioner informed defense counsel in this proceeding of the existence of this mitigating information, or that defense counsel in this proceeding was otherwise aware of it or should have been aware of it. Moreover, defense counsel Frank could reasonably have believed such information, if developed, would have little if any mitigating value. Petitioner does not dispute that he was convicted of the 1982 crimes. Post hac assertion of defenses to convictions suffered years prior could reasonably be found to have little if any mitigating value. As to mental defenses, the lack of supporting evidence (see claim 6), and the fact that Petitioner was convicted for these 1982 offenses, could reasonably suggest further investigation was unwarranted. Based on the evidentiary record, defense counsel could reasonably presume viable defenses in the 1982 proceedings were raised therein.
These defenses would not advance defense counsel Frank's tactic of lingering doubt. "Rare are the situations in which the `wide latitude counsel must have in making tactical decisions' will be limited to any one technique or approach."
Just as the Supreme Court found in
Additionally, even if defense counsel Frank's investigation and presentation relating to the 1982 crimes was deficient, there was no reasonable probability such mitigation evidence could have affected the jury's imposition of the death penalty given the noted substantial evidence against Petitioner. The state court could reasonably have concluded that defense counsel's investigation was adequate given the above noted facts underlying these prior criminal convictions, defense counsel Frank's theory of lingering doubt and the social and personal history mitigation evidence discussed in claims 6, 26, ante.
For these reasons, Petitioner has failed to overcome the strong presumption that counsel made decisions in the exercise of professional judgment.
Petitioner fails to demonstrate that no reasonable jurist could have found that he failed to make a prima facie showing that defense counsel rendered ineffective assistance during the penalty phase of the trial relating to mitigating the 1982 criminal convictions.
For the reasons stated, a fair-minded jurist could have found that the state court rejection of this claim was neither contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim 47 is denied.
Petitioner next claims ineffective assistance by counsel's failure to fully and completely develop and present adequate and reliable evidence about Petitioner's character, background, and behavior.
The California Supreme Court summarily denied claim 48 (SPet. Claim QQ) raised in Petitioner's state petition for habeas corpus.
Petitioner, citing to facts alleged in claim 6, contends that background and character testimony from four family members as well as social anthropologist Isabel Wright did not fully present evidence of his unstable family life, sporadic education, disabling physical violence, abuse, deprivation, and emotional suffering of his childhood and adolescence his caring for siblings and heavy drug use. He alleges that defense counsel Frank, consistent with Wright's requests, should have presented a full social history prepared by a social anthropologist, along with evidence of organic brain damage and psychiatric disorders prepared by a psychologist or psychiatrist, such as included with his state petition. (SHCP Exhs. 105, 111, 114.)
During the sentence selection stage, the Supreme Court has imposed a requirement that the jury make "an individualized determination on the basis of the character of the individual and the circumstances of the crime."
The Court does not find that Petitioner was prejudiced by any failure of defense counsel to develop and present complete, adequate, and reliable evidence of Petitioner's character, background, and behavior at the time of the Bocanegra and Tatman homicides.
Defense counsel Frank, while arguing for life without the possibility of parole, (RT 2895-2896, 2910, 2923, 2928, 3021), did present the following significant mitigating background and character evidence from family members including Petitioner's wife and retained social anthropologist Dr. Wright. (RT 2897, 2912, 2928, 2930, 3007-3008, 3017.) Petitioner's mother became pregnant with him when she was fifteen. (RT 2897-2898, 2943-2945.) His mother turned to alcohol and drugs (2899-2900, 2902-2903) and embarked upon a succession of unstable and unsupportive marriages and relationships. Petitioner experienced an impoverished, nomadic, neglected and sometimes abusive upbringing with little positive parental or adult supervision. (RT 2902-2941, 2958-2964, 3003-3006.) He lived in a car and then cheap motels. (RT 2904, 2908, 2918-2919.) His parents drank and argued, (RT 2905, 2909), and sometimes physically abused Petitioner (RT 2907, 2985.) His siblings were removed from the home for adoption. (RT 2913-2914, 2941, 2970, 2978-83.) His lack of stability in school, changing schools often and infrequently attending class, resulted in poor academic performance such that he did not progress beyond the eighth grade. (RT 2963-2969, 2941-2942, 2980, 2991-2994.) He began sniffing paint as a teen. (RT 2993, 2998.) His attempts at job training and employment (RT 2996-2997) were short-lived because of his lack of skills and education. (RT 3003-3004.)
Defense Counsel Frank presented evidence that Petitioner nonetheless showed concern and care for his siblings, sometimes stealing food for them. (RT 2920.) Petitioner's grandmother, to whom he was close, died in 1982 (RT 3000). Petitioner's mother died from alcohol related complications at age thirty-eight while he was in prison for the 1982 Ammarie and Pena stabbings. (RT 2897, 2912, 2916, 3001.) Petitioner's step-father also died from complication of alcohol. (RT 2919, 2961.) Petitioner lived a transient existence after his release from prison in 1986. (RT 3001-3002.) Petitioner was unable to find work and resorted to drugs. (Id.) Petitioner married Robin Alvarado shortly before his 1988 homicide trial, (RT 2925, 2928), and prior to that cared for her children. (RT 2927, 3000, 3018-3019.) Social anthropologist, Dr. Wright, testified that the major influences in Petitioner's life were his migratory lifestyle secondary to poverty and inconsistent family relationships. (RT 2939, 3003, 3006.)
The evidentiary record demonstrates defense counsel argued all the foregoing in urging the jury to return a life sentence without the possibility of parole for the then twenty-five year old Petitioner. (RT 2895-2896, 2910, 2923, 2928, 3021.) Moreover, prosecutor Ryals, in her argument to the jury, acknowledged there were mitigating factors in Petitioner's background and character that evoked sympathy for him. (RT 3043-3047, 3079.)
The Court finds that, given the substantial inculpating evidence against Petitioner, it is not reasonably probable that Petitioner would have received a more favorable sentence had further evidence of his background, character and behavior been presented. In particular, presentation of additional evidence regarding Petitioner's substance abuse would not have necessarily added weight to his case for mitigation.
The state court could reasonably find Petitioner's alleged neurological and psychiatric conditions and related mental defenses were not sufficiently supported by the record and failed for reasons discussed in claims 6 and 26, ante.
Petitioner has not established that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
Claim 48 is denied.
Petitioner alleges defense counsel was ineffective by failing to request that the trial court voir dire prospective jurors about adverse publicity from
The California Supreme Court summarily denied claim 49 (SPet. Claim RR) raised in Petitioner's state petition for habeas corpus.
The state supreme court considered and rejected this claim on direct appeal:
The Sixth Amendment secures to criminal defendants the right to trial by an impartial jury.
"A presumption of prejudice . . . attends only the extreme case."
"To establish actual prejudice, the defendant must demonstrate that the jurors exhibited actual partiality or hostility that could not be laid aside."
Petitioner contends that neither the trial court nor defense counsel asked prospective jurors about newspaper the articles appearing in the
Petitioner's case is immediately distinguishable from
Petitioner's case also is readily distinguished from
Two jurors, Crowder and Zamora, regularly read the
Only two of the jurors selected, Razo and Rodriguez, stated they had heard of the case. (RT 1814-1815; 2458-2460, 2471-2472.) Neither of these jurors mentioned having hearing of Toton; both indicated they did not believe everything they read in newspapers and could put what they had heard out of mind while deliberating. Id. Petitioner has not made an evidentiary showing that these juror statements were untrue.
"[P]retrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial."
As discussed above and in claim 55, post, the trial judge considered the impact of pretrial publicity on the jurors who served on Petitioner's case. None of the twelve selected jurors had been exposed to media accounts of Toton's disciplinary problems.
Petitioner's suggestion that the manner in which Toton conducted voir dire was self-interested is unsupported by the evidence for reasons discussed in claims 21-24, ante. Moreover, even if defense counsel's failure to request voir dire about attorney discipline publicity was deficient performance, nothing in the evidentiary record suggests presumed or actual prejudice. The noted substantial evidence against Petitioner suggested no reasonable probability of a more favorable outcome even had defense counsel requested voir dire about publicity from Toton's disciplinary proceeding.
The state court could reasonably have concluded that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 49 is denied.
Petitioner next claims ineffective assistance by counsel's failure to object to prosecutorial misconduct during closing argument.
The California Supreme Court summarily denied claim 50 (SPet. Claim SS) raised in Petitioner's state petition for habeas corpus.
That court also considered and rejected the claim on direct appeal, finding that:
Petitioner faults defense counsel's failure to object when prosecutor Ryals argued in closing that Petitioner killed Mr. Tatman, suggesting the jury was sentencing Petitioner for the Tatman homicide, and argued that the Bocanegras would not have been killed but for the actions of Petitioner.
However, the state court, based on the record before it, could have found it reasonable for the defense not to object in such circumstances. (See claim 42;
Moreover, the jury certainly was made well aware that Mr. Tatman's stabbing wounds were non-fatal injuries and that Petitioner's conviction for Mr. Tatman's murder was based on his aiding and abetting Reyes. (
Petitioner has not made a sufficient showing he was prejudiced by defense counsel's failure to object to alleged prosecutorial misconduct during closing argument. The evidence against Petitioner was not insubstantial considering the multiple murder special circumstance in the Bocanegra murders and the substantial evidence in aggravation presented during the penalty phase. There is no reasonably likelihood the outcome would have been different absent the alleged prosecutorial misconduct.
The state court could reasonably have concluded that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 50 is denied.
In his next claim, Petitioner alleges ineffective assistance by counsel during penalty phase closing Argument.
The California Supreme Court summarily denied claim 51 (SPet. Claim TT) raised in Petitioner's state petition for habeas corpus.
Generally, counsel are "given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom."
Petitioner contends that defense counsel's closing argument failed to respond to the prosecutor's improper argument regarding Petitioner's involvement in the Tatman and Bocanegra homicides. To this end, Petitioner repeats his allegations in claims 7, 42 and 50, ante, that defense counsel failed to point out evidence discrediting prosecution informant Hernandez (RT 2842, 2847-2848, 3051), and that Petitioner never told Hernandez that he (Petitioner) had stabbed anyone, (RT 2847-2848), and that he (Petitioner) did not inflict the fatal stab wounds upon the Bocanegras, (RT 2846), and that he (Petitioner) had no robbery motive. (RT 2852.) Nonetheless, for the reasons stated in claims 7, 42 and 50, the state court could reasonably have found that the performance of defense counsel was not deficient and did not prejudice the outcome of trial proceedings.
The trial judge appropriately admonished the jury that argument is not evidence. As to the evidence, the state court could reasonably have found it weighed substantially against the Petitioner as an aider and abettor of the homicides. The murders occurred about one month after Petitioner's release from prison for the 1982 assaults. (RT 2877-2879 2973-2974.) The evidence reasonably showed that Petitioner grabbed and held Mr. Bocanegra while Joey got a knife (RT 2843-2854), beat Mr. Bocanegra while Joey stabbed him (RT 2696-2706, 2719-2721, 2725, 2843-2844, 2854, 2858), rushed Mrs. Bocanegra and told Joey to "shut her up" (RT 2844, 2858), pushed Mrs. Bocanegra into a back room while Joey stabbed her, hitting her on the head with a bar (RT 2710-2714, 2720-2721, 2725, 2752, 2844), and that Mrs. Bocanegra's hands were bound and she was likely gagged (RT 2708, 2723, 2749-2751, 2754-2755, 2774-2775).
The state court also could have reasonably determined there was no basis upon which Petitioner could have effectively impeached Hernandez. Petitioner has not shown that Hernandez gave contradictory, inconsistent or false testimony, or that Hernandez was motivated by an undisclosed plea bargain. No facts or discrepancies between the testimony and the physical evidence establish or compel the conclusion that Hernandez, by virtue of his alleged substance addition, his plea deal, or otherwise, was motivated to and did testify falsely or inaccurately. (SPet. Ex. 900, pp. 4, 11; SResp. Ex. B.) Having cross-examined Hernandez at the preliminary hearing, Toton determined on that basis not to interview him. (SPet. Ex. 137, p. 4.) During cross-examination at the guilt and special circumstance phase, Hernandez's testimony was consistent with Petitioner's statements and the physical evidence that he had not been offered any disposition of then pending criminal matters prior to agreeing to testify at the Petitioner prosecution. (CT 576-577.) During cross-examination at the penalty phase, Hernandez admitted a deal on a then pending charge in exchange for his testimony in Petitioner. (RT 2850-2851.) Petitioner has not demonstrated that Hernandez's testimony was false or misleading, or that defense counsel acted unreasonably in not interviewing Hernandez.
Petitioner goes on to argue that defense counsel failed to explain the Bocanegra and Tatman evidence and verdicts, and failed to dispel the suggestion Tatman homicide was a capital crime for which they would sentence Petitioner (RT 3055), and failed to support the "lingering doubt" defense (RT 3063-3082). Petitioner points out that, as discussed in claim 42, prosecutor Ryals improperly argued that the jury was to decide whether Petitioner killed Mr. Tatman. (RT 3034-3036.) However, the record reflects that defense counsel pointed out improper argument and reminded the jury of the evidence presented in favor of the lingering doubt defense. (RT 3063-3082.)
As with the claims above, the jury was made well aware that Mr. Tatman's stabbing wounds were non-fatal injuries and that Petitioner's conviction for Mr. Tatman's murder was based on his aiding and abetting Reyes. (RT 235, 2693-2695.) Defense counsel made his argument to the jury that Petitioner did not intend to kill Mr. Tatman (CT 109; RT 2695), and the Bocanegras (CT 479, 500; see SHCP Ex. 419), and that there may have been a third assailant in the Bocanegra murders. (Pet. Exhs. 121, p. 2; 417, pp. 1-2; SHCP Ex. 137, Att. A.) Given Petitioner's desire to plead guilty to the Bocanegra murders, (SPet. Exhs. 520, p. 2; 700), the unrebutted evidence presented at the penalty phase, the admonitions of the trial judge that argument is not evidence, and the potential aggravating and mitigating effects of circumstances surrounding the Tatman murder, it is not reasonably probable that even had defense counsel further responded to Ms. Ryals's closing statements, a different sentence would have been returned.
Accordingly, it could reasonably be found that the prosecution arguments were not so prejudicial as to make trial fundamentally unfair. See Donnelly, 416 U.S. at 643 (improper jury argument by the state does not present a claim of constitutional magnitude unless it is so prejudicial that the petitioner's trial was fundamentally unfair . . . [t]o establish prejudice, the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that, in all probability, but for the remarks, no conviction would have occurred);
The state court could have reasonably concluded that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
A fair-minded jurist could therefore reasonably conclude that Petitioner failed to establish rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 51 is denied.
Petitioner claims cumulative ineffectiveness during the penalty phase, citing to claims 43-51, which he contends demonstrate defense counsel's failure to present evidence of Petitioner's minimal culpability, mitigating factors and defenses to the Tatman and Bocanegra homicides.
The California Supreme Court summarily denied claim 52 (SPet. Claim UU) raised in Petitioner's state petition for habeas corpus. In re Sanchez, S049502 (DD).
The California Supreme Court considered this issue on direct appeal and rejected it, finding that:
For the reasons discussed in claims 43-51, the state court could reasonably have determined that Petitioner failed to establish in those claims that defense counsel was ineffective at penalty phase. These claims are insubstantial when considered cumulatively.
Respondent contends claim 52 is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
Accordingly, this Court does not find Petitioner has established that defense counsel's cumulative performance at penalty phase fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
The state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 52 is denied.
In this claim, Petitioner alleges ineffective assistance of counsel due to conflict of interest arising from publicity about defense counsel Toton's pending disbarment.
The California Supreme Court summarily denied claim 53 (SPet. Claim VV) raised in Petitioner's state petition for habeas corpus.
The Sixth Amendment provides that a criminal defendant shall have the right to "the Assistance of Counsel for his defense." As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Petitioner cites to the facts in claims 23, 24 and 43 and alleges that lead defense counsel Toton's disbarment publicity placed Toton in an actual conflict of interest of a personal and financial nature, preventing his effective assistance at penalty phase in ways not fully disclosed to Petitioner. The trial judge, according to Petitioner, did not adequately inquire into the matter and thereby allowed Toton to remain on the case. Petitioner alleges the trial judge never questioned Toton specifically about the debarment (Sealed RT July 26, 1988, at pp. 80-84), never obtained a copy of the debarment hearing decision, and agreed to Toton's proposal to have co-defense counsel Frank talk to Petitioner about the debarment. (Id., at p. 82-84.) Petitioner asserts that Toton sought to avoid the issue of debarment. Toton refused to appear at the debarment hearing. (SHCP Ex. 517, p. 8.) He refused to comment to reporters about the issue. (SCHP Exhs. 703, 704.)
This Court finds it unlikely that Toton's pending debarment influenced his actions as defense counsel, for reasons discussed by the state court.
Even if there were a conflict, Petitioner was aware of the possible problems with Toton's continued representation and his right to conflict free representation, having discussed these matters with co-counsel Frank for approximately an hour and he expressly waived any such conflict.
Petitioner alleges that it was likely that one or more jurors was aware of Toton's adverse publicity and, given Toton's failure to withdraw, was prejudiced by it. However, he offers no evidentiary predicate supporting the allegation. The evidence does not suggest the trial court's failure to question juror's about Toton's debarment rendered trial "fundamentally unfair." (See RT 591-609 (juror Jones), RT 647-669 (juror Mooney), RT 1168-1183 (juror Roberts), RT 1338-1355 (juror Crowder), RT 1813-1831 (juror Razo), RT 1879-1892 (juror Stell), RT 2117-2136 (juror G. Clark), RT 2137-2155 (juror P. Clark), RT 2401-2412 (juror O'Toole), RT 2435-2448 (juror Raymond), RT 2454-2472 (juror Rodriguez), RT 2554-2566 (juror Zamora)). For reasons more fully discussed in claims 49 ante, and 55, post, this Court agrees with the California Supreme Court's determination that there was "no showing the jury was unfair or biased."
Petitioner has not established that defense counsel's performance at the penalty phase fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Accordingly, the Court finds that a fair-minded jurist could have found that Petitioner failed to establish that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 53 is denied.
In his next claim, Petitioner alleges that juror George Razo was not an impartial juror.
The California Supreme Court summarily denied claim 54 (SPet. Claim KK) raised in Petitioner's state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief,"
"[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors."
Petitioner contends that, during voir dire, Razo admitted his exposure to a news article about this case and stated that the murder of his cousin four years earlier would not affect his deliberations (RT 1815, 1822), but after the trial, Razo stated to a defense investigator that his cousin's murder may have had some impact on him in Petitioner's case. (SPet. Exhs. 124, App. B, ¶ 5; 124, ¶ 13.)
The record before the state court shows that juror Razo stated during voir dire that he recalled reading an article in the
In addition, Petitioner has not demonstrated prejudice, i.e., that the error had a "substantial and injurious effect or influence in determining the jury's verdict."
Accordingly, it was not objectively unreasonable for the State Supreme Court to find there was no reasonable probability juror Razo was other than an impartial juror. 28 U.S.C. § 1746;
The state court could reasonably have concluded that Petitioner failed to establish that the performance of defense counsel at the penalty phase fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
The Court finds that a fair-minded jurist could have found that Petitioner failed to establish that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 54 is denied.
In this claim, Petitioner alleges court error by failure to voir dire the jury regarding publicity about defense counsel's pending disbarment.
The California Supreme Court considered this claim on appeal and found that the defense had not objected on this ground or sought a curative admonition at trial and thus waived the issue on appeal.
"[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors."
Two specific inquires of voir dire are constitutionally compelled: inquiries into racial prejudice against a defendant charged with a violent crime against a person of a different racial group,
The Court is unpersuaded by this claim for reasons discussed in claim 49, ante. During voir dire, the following eight jurors indicated they had never heard of the case, did not know counsel, and did not subscribe to and did not usually read the
Only two of the jurors selected, Razo and Rodriguez, stated they had heard of the case. (RT 1814-1815; 2458-2460, 2471-2472.) Neither mentioned having hearing of Toton; both indicated they did not believe everything they read in newspapers and could put what they had heard out of mind while deliberating.
Based on the record, the state court could reasonably have found that specific voir dire regarding Toton's disbarment proceeding was unnecessary and could serve to education the jurors on the potentially prejudicial information.
Nor has Petitioner pointed to evidence that demonstrates prejudice, i.e., that the error had a "substantial and injurious effect or influence in determining the jury's verdict."
Accordingly, the state court could reasonably have concluded that Petitioner failed to establish that defense counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
The state court rejection of the claim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
Claim 55 denied.
In his next claim, Petitioner alleges prejudicial and misleading victim photos were erroneously admitted at trial. He complains of autopsy photographs, excluded at the guilt phase, and admitted over defense objection at the penalty phase, and of crime scene victim photographs not objected to by the defense that were admitted during the penalty phase. According to Petitioner, these photos were cumulative of other testimony and misleading as to Petitioner's culpability in the homicides as they showed injuries not inflicted by Petitioner. He claims the photographs had an impact on jurors.
The California Supreme Court summarily denied claim 56 (SPet. Claim NN) raised in Petitioner's state petition for habeas corpus.
Additionally, the state supreme court found on direct appeal that admission of autopsy photographs was not prejudicial error:
A due process claim can be stated where graphic photos of victims make the trial fundamentally unfair.
The Court finds that, based on the evidentiary record, and for the same reasons discussed in claim 45, the state court could reasonably have found that the two autopsy photos of Mr. Bocanegra and Mrs. Bocanegra's scalp wounds (People's Exhs. 13, 14), and the victim and crime scene photos (People's Exhs. 5-9, 15-43 and 55-66) served to corroborate testimony as to circumstances of the murders, defense counsel arguments of diminished culpability (see RT 3051-3055), and were relevant and probative as aggravation evidence and going to penalty selection. Autopsy photographs of scalp wounds to Mr. Bocanegra and Mrs. Bocanegra were properly admitted as relevant to expert testimony and issues of aggravation and penalty and were not unnecessarily gruesome. The crime scene and autopsy photographs could reasonably be seen by the state court as relevant to circumstances of the murders, identities of murders and murders' states of mind.
It appears unlikely that Petitioner was subjected to prejudice from defense counsel's failure to object to the introduction of crime scene photographs depicting the wounds of the Bocanegras and Mr. Tatman. The trial court did not find the photographs prejudicial as depicting a "blood and guts type of thing. . . ." (RT 2881-2882.) The California Supreme Court could reasonably have found the photographs relevant and probative of charges and elements including intent to kill, aggravation and penalty, such that defense counsel's failure to object did not necessarily demonstrate ineffective assistance.
Admission of the photographs did not render trial "fundamentally unfair."
Additionally, even without the photographs, it is not reasonably probable the jury would have returned a sentence less than death. The evidence in aggravation including the circumstances surrounding the murders of the Bocanegras and Mr. Tatman, and Petitioner's 1982 assaults on Ammarie and Pena, was not insubstantial. (RT 2863-2874.)
Accordingly, the state court could have found that Petitioner failed to establish that defense counsel's performance at penalty phase fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
This Court does not find that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution,
Claim 56 is denied.
Petitioner next claims that the trial court erred by inadequately and erroneously explaining the guilt verdicts and by improperly restricting defense counsel's closing argument regarding the guilt verdicts.
The California Supreme Court summarily denied this claim (SPet. Claim II) raised in Petitioner's state petition for habeas corpus.
The state supreme court also considered and rejected this claim on direct appeal. That court found that Petitioner failed to meet the state procedural requirement of timely objection and thus waived the issue on appeal and was procedurally barred on collateral review, noting that:
The state supreme court went on to consider the trial court's verdict misstatement and defense attorney Frank's argument to the jury clarifying and arguing the Tatman verdict, as follows:
Petitioner contends that the trial court misled the jury, telling them Petitioner was guilty of Mr. Tatman's first degree murder, and guilty of robbery of Mr. Tatman, but not guilty of the robbery special circumstance under California Penal Code section 190.2(a)(17). In Petitioner's view, the jury was unaware the verdict implicitly found that Petitioner was not Mr. Tatman's actual killer and that Petitioner was found not to have intended the killing of Mr. Tatman.
The Court finds, however, that the state supreme could reasonably have determined that the trial court reading of the guilt verdicts was adequately clarified by defense counsel's penalty phase argument. Defense attorney Frank pointed out to the jury where the evidentiary record supported inference from the verdicts that Petitioner did not intend to kill Mr. Tatman and did not kill him.
Petitioner contends the trial court errantly explained the verdict regarding the "multiple murder" special circumstance, stating such was predicated on the murders of Mr. Tatman and Mr. Bocanegra when in fact it was predicated on the murders of Mr. & Mrs. Bocanegra. Petitioner claims this misled the jury into believing the Tatman murder was a capital crime and as such was an aggravating factor. Here as well, the state supreme court could reasonably have found defense counsel Frank's argument and the court's admonitions and instructions to be sufficiently clarifying of misstatement by the trial court. Frank argued at penalty phase that, based on the evidence, Petitioner had no criminal intent when he arrived at the Bocanegra home, and explained to the jury the meaning of the felony-murder charges in the Tatman verdict, and discussed defendant's role as an accomplice in the Tatman murder and robbery.
Petitioner contends that the trial court improperly restricted Frank's closing argument regarding the Tatman conviction and felony murder rule, on grounds the rule was not part of the evidence. Petitioner maintains this was error in that the prosecution had argued to the jury that Petitioner killed Mr. Tatman, treating the first degree felony-murder conviction as a capital crime. However, as Respondent correctly notes, the felony murder rule was not in evidence or part of the jury instructions. Defense counsel Frank was not restricted in arguing the circumstances surrounding the Tatman murder and verdict. Petitioner was able to argue the inference that he did not intend to kill Mr. Tatman and did not kill him. Defense counsel Frank's closing argument stated and clarified the specific charges levied and those upon which Petitioner was convicted and argued for mitigation based on the facts and circumstances in the evidentiary record. (RT 3050-3072.)
The state record does not reasonably suggest the likelihood that the trial court verdict statement improperly influenced the jury. Any error in the trial court's statement of the verdicts, that the multiple murder circumstance was based on the murders of Mr. Tatman and Mr. Bocanegra, was harmless because, based on Frank's penalty phase and closing arguments (RT 3050-3072) and the instructions given (RT 2611-2616, 3082-3097; CT 979-1021), there is no reasonable probability the jury mistakenly believed Tatman was a capital crime.
Accordingly, Petitioner has not established that defense counsel's performance at penalty phase fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S., at 687-694.
This Court does not find that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court's ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution,
Claim 57 is denied.
In his next claim, which includes multiple subclaims, Petitioner alleges inadequate and unconstitutional jury instructions at the penalty phase. The subclaims are reviewed separately.
Petitioner alleges that the trial court rejected his "lingering doubt" instruction even though California law mandates mitigating consideration of lingering doubt and defense counsel argued discrepancies in Hernandez's testimony created lingering doubt as to Petitioner's guilt.
The state supreme court reached and rejected this subclaim on direct appeal, finding that the trial court did not err in rejecting Petitioner's specific instruction on lingering doubt:
"[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."
In evaluating the instructions, the "reviewing court must determine `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.'"
The failure to identify whether factors are aggravating or mitigating is plainly not contrary to or an unreasonable application of Supreme Court authority. In
In
There is no persuasive argument that the instruction given in this case in any way foreclosed the jury from considering any relevant mitigating evidence. As noted by Respondent, the Supreme Court has examined the language in California's jury instruction on mitigation multiple times, and upheld it against constitutional challenges every time.
The trial court's use of the standard penalty phase instruction, California Criminal Jury Instruction, (CALJIC), No. 8.84.1 (1986 rev.), regarding California Penal Code § 190.3 factor (k), is adequate to permit jurors to consider relevant mitigating evidence.
Petitioner then failed to established that defense counsel's performance at the penalty phase fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
Petitioner next alleges that the trial court's use of CALJIC No. 8.84.1 (1986 rev.), which includes (Cal. Pen. Code § 190.3) sentencing factors "a" (consideration of current offense), "b" (consideration of violent criminal activity), and "c" (consideration of prior felony conviction), erroneously allowed the jury to inflate the aggravating weight of Petitioner's guilt phase crimes. Petitioner contends the jury improperly applied sentencing factors regarding presence of "violent criminal activity" and "prior felony convictions" to the charged offenses and to Petitioner's 1982 assaults on store owner Hassan Ammarie and friend Arturo Pena.
The state supreme court reviewed this subclaim on direct appeal and rejected it, providing that:
The legal standard for review of penalty phase instructions is also set forth in the subclaim above, to wit, "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."
Petitioner's allegations lack merit. It is plainly not contrary to Supreme Court precedent to instruct the jury with all sentencing factors. The Supreme Court stated in
The Court finds there is no reasonable likelihood the jury misinterpreted the instruction by inflating aggravation from the guilt phase crimes. It is well established that a sentencing court need not identify which factors are aggravating and which are mitigating.
The state court could reasonably have found that the prosecution guilt phase argument was relevant only under the first sentencing factor. In fact, defense counsel Frank argued as much to the jury, that the guilt phase crimes should be considered only with regard to the first sentencing factor, (RT 3066-3067), ameliorating any juror confusion as to the current offense factor "a".
The Ninth Circuit has found the second factor, which refers to crimes for which the defendant has not been convicted, not to be unconstitutionally vague,
Additionally, any error was harmless given the substantial weight of evidence in aggravation.
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds that the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
Petitioner next alleges that the trial court improperly rejected defense instructions addressing which sentencing factors were aggravating and which were mitigating, (CT 1078-83), allowing the jury to improperly consider the absence of a mitigating factor as itself an aggravating factor.
The state supreme court considered and rejected this subclaim on direct appeal:
The legal standard for review of penalty phase instructions is also set forth in the subclaim above, to wit, "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."
The Court finds it clearly established that a sentencing court need not identify which factors are aggravating and which are mitigating.
The Ninth Circuit arrived at the same conclusion in
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds that the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
Petitioner alleges in this subclaim that the trial court erred in rejecting instructions deleting mitigating factors (Cal. Pen. Code § 190.3 (e) and (f)) which were not claimed by Petitioner and thus not relevant this case, i.e., factors that "victims participated in, or consented to their own deaths" or that Petitioner's actions were "morally justified." (CT 1078-1079.) Petitioner alleges that the prosecution argued the absence of evidence supporting these claims and thereby implied an illusory aggravating factor.
The state supreme court considered this claim on direct appeal and rejected it, noting that:
The Court finds this subclaim to be unavailing. As noted in discussion of the subclaims above, the jury was instructed with CALJIC No. 8.84.1. That instruction allowed the jury to "consider" each factor "if applicable", (CT 994-995; RT 3087-3089), precluding any reasonable probability Petitioner's rights were violated by a failure to delete sentencing factors (Cal. Pen. Code § 190.3 (e) and (f)).
The legal standard for review of penalty phase instructions is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."
Consistent with the foregoing, this Court finds that the state court could reasonably have found it unlikely that the jury applied the challenged instruction in a way that prevented consideration of constitutionally relevant evidence. There was no requirement that a trial court redact the instructions to include only those factors deemed applicable. Moreover, the instruction itself advises the jury to consider the factors "if applicable." In
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds that that the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
Petitioner next alleges that the trial court erred by failing to instruct the jury it could not consider aggravating factors not included in the instructions. He claims this potentially allowed unrestricted aggravation. (RT 3087-3089, 3095.)
The state supreme court considered and rejected this subclaim on direct appeal, finding that there was no violation of state law:
The legal standard for review of penalty phase instructions is as set forth in the subclaim above, to wit, "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."
This Court agrees with the state court's rejection of the subclaim. At bottom, "what is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."
The California Supreme Court found the specific instructions given allowed a fully individualized evaluation of aggravating and mitigating evidence.
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds that the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
Petitioner alleges that the trial court erred in denying his requested special instruction that sought to delete the adjective "extreme" from the reference in [mitigation factor] (d) to being under the influence of mental or emotional disturbance, and the adjective "substantial" from the reference in [mitigation factor] (g) to being under the domination of another person. He claims this prevented presentation of his mitigation evidence. (CT 1078-1079.)
The state supreme court considered and rejected this claim on direct appeal, finding that:
The Constitution requires that the jury must "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."
Here, the Court finds that the trial court's use of CALJIC No. 8.84.1 (1986 rev.), regarding California Penal Code § 190.3 factor (k), was adequate to permit jurors to consider relevant mitigating evidence.
The Ninth Circuit has rejected Petitioner's argument where, as here, the jury was advised it could consider any other mitigating matter.
The Supreme Court has stated that factor (k) directed the jury to consider "any other circumstance that might excuse the crime. . . ."
In addition, the Supreme Court has reviewed this instruction on several occasions. It has rejected claims that the instruction restricts the jury's consideration of mitigating evidence in every instance.
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds that the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
In this subclaim, Petitioner alleges that the trial court erred in denying his requested special "pinpoint" instructions relating to the defense theory of mitigating childhood and family facts and circumstances. He argues that without the pinpoint instruction there is a reasonable likelihood the jury did not understand the defense and could consider all factors in the instructions as mitigation.
The state supreme court considered and rejected this subclaim on direct appeal, stating that:
As recited above, in reviewing penalty phase instructions, the test is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."
Here, the state court could reasonably have found that the jury was not precluded from considering mitigating evidence including childhood and family evidence. The trial court rejected Petitioner's proffered special instruction, using instead CALJIC No. 8.84.1 (1986 rev.), which advised the jury to consider the circumstances of the present conviction (pursuant to Cal. Pen. Code § 190.3(a)) and any other extenuating circumstance and aspect of the defendant's character or record (pursuant to Cal. Pen. Code § 190.3(k)). (CT 994-995; RT 3087-3089.) Additionally, the prosecution argued to the jury that it was not precluded from considering mitigating evidence. (RT 3043-3044.) Defense counsel Frank did the same. (RT 3053-3060).
At the time Petitioner's conviction became final on October 7, 1996, it was established that use of CALJIC No. 8.84.1 was adequate to permit jurors to consider relevant mitigating evidence.
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
For the reasons stated, the Court is persuaded the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
Petitioner alleges in the next subclaim that the trial court erred in denying his requested special instructions requiring the jury to find aggravation outweighed mitigation beyond a reasonable doubt and that a death sentence was appropriate beyond a reasonable doubt. The trial court instead gave the statutory instruction, CALJIC No. 8.84.2 (1986 rev.), renumbered CALJIC No. 8.88 (1989 rev.).
The state supreme court considered and rejected this claim on appeal, stating that:
Petitioner could correctly argue that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."
However, once a defendant is convicted, "the prosecution has no burden of proof that death is the appropriate penalty, or that one or more aggravating factors or crimes exist, in order to obtain a judgment of death."
There is no Supreme Court authority which constitutionally requires that a jury be instructed on a burden of proof in the sentence selection phase in a capital case. Further, "[t]he United States Supreme Court has never stated that a beyond-a-reasonable-doubt standard is required when determining whether a death penalty should be imposed."
The Court finds the statutory instruction, CALJIC 8.84.2, did appropriately advise the jury to consider the applicable factors of aggravating and mitigating circumstances and that to find for death each juror must be persuaded that the aggravating evidence and/or circumstances is so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole. (CT 1018; RT 3095-3096.) Due process requires no more.
The state court then could reasonably find the requirement under California's death penalty statute, that the jury weigh aggravating and mitigating factors before imposing the death penalty, adequately guarantees the jury's discretion will be guided and its considerations deliberate.
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds that the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
Petitioner alleges in his next subclaim that the trial court erred in not instructing the jury to make written findings as to aggravating and mitigating factors, denying him due process and meaningful appellate review under the Eighth Amendment.
The state supreme court reviewed and rejected this claim on direct appeal, noting that:
The state court decision is not contrary to Supreme Court precedent.
The California procedure was approved by the Supreme Court in
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
For the reasons stated, the Court finds that the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
Petitioner next alleges that the California death penalty statute fails to require intra-case and inter-case proportionality and to provide for meaningful proportionality review, denying him protection from arbitrary imposition of the death penalty and denying him equal protection with non-capital felons and preventing the jury from considering all mitigation factors.
The state supreme court considered and rejected this subclaim on appeal, finding that:
Generally, errors of state law are not cognizable on federal habeas.
In this instance, the state court could reasonably find Petitioner's intra-case and inter-case proportionality subclaim to be foreclosed by the Supreme Court's decision in
In order to satisfy constitutional requirements, a death penalty law must narrow the class of death-eligible defendants, and provide for individualized penalty determination.
Respondent contends this subclaim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
The Court finds that the state court rejection of the subclaim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
This subclaim is denied.
For the reasons discussed in the subclaims above, the state court could reasonably have found that Petitioner failed to establish state court rejection of claim 58 was contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 58, including all its subclaims, is denied.
In his next claim, Petitioner alleges that the trial court, during the (Cal. Pen. Code § 190.4(e)) automatic motion to independently review the evidence, erred by failing to consider mitigating evidence when imposing death.
The state supreme court considered and rejected this claim on direct appeal, stating that:
At the time Petitioner's conviction became final, Cal. Penal Code § 190.4(e) provided that:
Cal. Penal Code § 190.4(e).
Petitioner alleges that the trial court, during the (Cal. Pen. Code § 190.4(e)) automatic motion to modify and independently review of the evidence, did not mention and thus ignored much 190.3(k) mitigating evidence of his abysmal childhood, adolescence in an alcoholic, violent and dysfunctional family and his love and loyalty toward siblings, when it imposed the death penalty following its independent review. (CT 1103; RT [10/27-31, 1988] at pp. 2-16.) He claims the trial judge was not guided by aggravating and mitigating circumstances in upholding death and thus failed to comply with the mandate of California Penal Code § 190.4(e).
The death penalty is constitutional if it "is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances."
The Court finds this claim raises solely an issue of state law without any claimed constitutional error,
Respondent contends this claim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
For the reasons stated, the Court finds that the state court rejection of the claim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 59 is denied.
In his penultimate claim, Petitioner alleges that the cumulative effect of constitutional error during the penalty phase warrants habeas relief. He cites to and incorporates claims 36-59 and argues cumulative error therefrom.
The state supreme court considered and rejected this claim on direct appeal, stating that:
The California Supreme Court also summarily denied claim 60 (SPet. Claim WW) as raised in Petitioner's state petition for habeas corpus.
Claims 36-59, ante, each fail for the reasons discussed above. Petitioner then cannot make a sufficient showing that he was prejudiced by defense counsel's cumulative ineffectiveness during the penalty phase. The state court could reasonably have found that Petitioner failed to show the cumulative effect of alleged penalty phase errors deprived him of due process. These claims are insubstantial when considered cumulatively.
Respondent contends this claim is not cognizable because it creates and retroactively applies a "new rule" of constitutional law within
Accordingly, the Court finds that a fair-minded jurist could have found that Petitioner failed to establish that the state court rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 60 is denied.
In his final claim, Petitioner alleges that his death sentence is grossly disproportionate given his actions, his merely vicarious culpability as an aider and abetter, and his severe neurological and psychiatric impairments, violating his rights under the Eighth and Fourteenth Amendments.
The state supreme court considered and rejected this claim on direct appeal, stating that:
The California Supreme Court also denied claim 61 (SHCP Claim XX) raised in Petitioner's state petition for habeas corpus.
Petitioner purports to question the viability of
The claim is not persuasive. Petitioner does not provide any sufficient basis for questioning the holding in
Petitioner does not distinguish or limit application of
Petitioner alleges that his death sentence is disproportionate given California's extraordinarily large death pool. The Eighth Amendment requires that a state capital sentencing system must: "1) rationally narrow the class of death-eligible defendants; and 2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime."
Petitioner's re-argument of actual innocence fails for the reasons discussed in claims 2 and 4, ante.
In sum, the Court finds this claim is entirely foreclosed by
Accordingly, for the reasons discussed above, the Court finds that the state court rejection of the claim was not contrary to, or an unreasonable application of, clearly established federal law, or an or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, viewed most favoring the prosecution.
Claim 61 is denied.
On March 18, 2003, Petitioner filed a motion seeking an evidentiary hearing on claims 2, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 24, 25, 28, 30, 31, 32, 33, 34, 36, 37, 38, 40, 43, 44, 45, 46, 47, 48, 50, 51, 52, 54 and 60. (ECF No. 120.) Petitioner alleges in his motion that the state supreme court denied him a full and fair evidentiary hearing to resolve the following facts showing prejudice, facts that were not presented at trial because of ineffective assistance of counsel and prosecutorial misconduct:
1) Jailhouse informant Seeley's statements, disclosed to the defense prior to trial but not presented at trial by either side, that Reyes, the third person at the Bocanegra crime scene, confessed to a more culpable role in Mr. Bocanegra's murder, that Petitioner played no part in killing Mr. Bocanegra, and that Reyes admitted being the initial aggressor against Mrs. Bocanegra.
2) Inconsistencies between the physical evidence and jailhouse informant Hernandez's testimony at trial where he wanted to trade information for favorable treatment, exaggerated the amount of time he spoke to Petitioner about the crime, failed to admit he was arrested for being under the influence of heroin, and failed to admit he had been a heroin addict for over five years.
3) Principal perpetrator Joey Bocanegra's violent temper, substance abuse through the night and early morning before killing his parents, history of requesting money for drugs from his parents and becoming violent if they refused his request.
4) Testimony by prosecution witnesses, the crime scene analyst and the forensic pathologist, supporting Petitioner's defense that Reyes was Joey's main assistant in the Bocanegra murders.
5) Petitioner's severe organic brain damage, low IQ, and serious psychiatric disorders, known to defense counsel before trial but not investigated and presented at trial.
6) Defense counsel's unreasonable acquiescence in the prosecution's use of statements Petitioner made to Detectives Stratton and Boggs which should have been excluded under
Respondent filed his opposition on July 18, 2003, arguing that an evidentiary hearing is not warranted because the claims lack merit, there is no sufficient offer of proof, and the new evidence presented by Petitioner does not cast doubt on the California Supreme Court's finding that Petitioner failed to set forth facts which constitute a constitutionally cognizable claim. (ECF No. 137.) Petitioner filed a reply on September 19, 2003, re-arguing his position on the motion. (ECF No. 140.)
Section 2254(d), as amended by the AEDPA, provides:
28 U.S.C. § 2254(d).
In
Petitioner seeks an evidentiary hearing on the forty-one claims set forth above. All of those claims were adjudicated on the merits in the state court.
Petitioner further claims that he is entitled to a hearing under 28 U.S.C. § 2254(e)(2).
As discussed above, § 2254(d) applies to all forty-one claims since they were adjudicated on the merits, and Petitioner fails to overcome § 2254(d) with respect to any of the forty-one claims.
For the reasons stated, Petitioner's motion for evidentiary hearing shall be denied.
On June 25, 2014, Petitioner filed a motion to preserve testimony by deposing the following seven witnesses:
Each of these individuals previously filed a declaration in support of the instant petition. (ECF No. 150.)
Petitioner argues good cause to preserve evidence because these witnesses are of advanced age and their proposed testimony will be probative of the claimed ineffective assistance of counsel, mental defenses, and Petitioner's actions and lack of culpability, as alleged in the petition. Respondent filed his opposition on August 27, 2014, arguing there is no good cause for such relief because Petitioner is not entitled to an evidentiary hearing, and even if he were, there is no showing of the probity of proposed testimony or that these witnesses would be unavailable. (ECF No. 154.) Moreover, Respondent states his need for further discovery should the motion be granted. Petitioner replied on September 3, 2014, re-arguing good cause to preserve testimony relating to declarations of these aged witnesses already on file, and stating that further discovery needs of Respondent can be litigated after the motion to preserve evidence is granted.
On May 1, 2015, Petitioner filed a motion renewing the pending motion to preserve testimony. (ECF No. 160.)
A judge may authorize discovery and may limit it under the Federal Rules of Civil Procedure upon a showing of the reasons for the request and good cause. Rules Governing § 2254 Cases, Rule 6. Discovery should be allowed if it will help illuminate issues underlying applicant's claim.
Federal Rule of Civil Procedure 27 provides in pertinent part that:
This Rule does not limit a court's power to entertain an action to perpetuate testimony and may be used in habeas proceedings.
Good cause under Rule 27 may be found "[w]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief . . . ."
Here, the Court finds that Petitioner has not made a sufficient factual showing to establish good cause as required by Habeas Corpus Rule 6(a). Apart from age, Petitioner offers no facts suggesting unavailability of these witnesses or reasons why this testimony will be lost if not preserved.
In sum, nothing reasonably suggests a basis to believe the proposed testimony would lead to factual development showing entitlement to relief, and that the proposed testimony might otherwise be lost.
For the reasons stated, Petitioner's motion to preserve evidence, as renewed, shall be denied.
On May 1, 2015, Petitioner filed a motion requesting a case management conference to discuss any assistance the Court might require to resolve the pending motion for evidentiary hearing. (ECF No. 159.)
However, there is no need for a case management conference given the discussion above denying the motion for evidentiary hearing. The motion for case management conference shall be denied.
On June 23, 2015, Respondent filed a request that the following documents be filed under seal and protected from disclosure: (1) the Request to Seal the November 25, 1987 Reporter's Transcript & Penal Code Section 987.9 Materials, totaling two (2) pages, (2) the November 25, 1987 Reporter's Transcript (conditionally sealed Lodged Document # II), totaling Seven (7) pages, (3) all Penal Code Section 987.9 Materials (conditionally sealed Lodged Document # QQ), totaling ninety-five (95) pages, and (4) a [Proposed] Order Sealing the conditionally sealed Lodged Documents # II and # QQ), totaling one (1) page.
Respondent argues that these documents, sealed state court records, contain confidential information that should be protected from disclosure in this proceeding. Local Rule 141; California Penal Code Section 987.9(d).
The Court notes that Petitioner has been served with copies of these supplemental record documents. He has not opposed Respondent's request and the time for doing so has passed. Local Rule 141(c).
Documents may be sealed only by written order of the Court, upon the showing required by applicable law. Local Rule 141(a). Confidential information may be protected by a protective order. Local Rule 141.1(a)(1).
The Court has reviewed the request to seal and protect documents and the supplemental lodged documents, and based thereon finds good cause to grant the request.
The supplemental lodged documents, sealed and unsealed, were not considered by the Court in its analysis and disposition of the foregoing claims. The Court notes that these documents, to the extent they are evidence of trial counsel's defense of Petitioner, do nothing but support effective assistance by trial counsel and the Court's above analysis and disposition. (See [Sealed] Supplemental Lodged Documents #II and #QQ.)
Because this is a final order adverse to the petitioner, Rule 11 of the Rules Governing Section 2254 Cases requires this court to issue or deny a Certificate of Appealability ("COA"). Accordingly, the Court has sua sponte evaluated the claims within the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c);
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances.
The court may issue a COA only "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further."
In the present case, the Court finds that, with respect to the following claims, reasonable jurists could disagree with the Court's resolution or conclude that the issues presented are adequate to deserve encouragement to proceed further:
1) Claim 8: Whether defense counsel provided ineffective assistance by failure to investigate and present testimony of jailhouse informant Charles Seeley.
2) Claim 59: Whether the trial court failed to consider Petitioner's mitigations evidence when it imposed the death penalty.
3) Claim 61: Whether imposition of the death penalty is constitutionally disproportionate as to Petitioner.
Therefore, a certificate of appealability is granted as these three claims.
As to the remaining claims and requests for evidentiary hearing and to preserve testimony, the Court concludes that reasonable jurists would not find the Court's determination that Petitioner is not entitled to relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. He has not demonstrated good cause to preserve testimony. Accordingly, the Court hereby declines to issue a COA as to the remaining claims and requests for evidentiary hearing and to preserve testimony.
IT IS SO ORDERED.
