The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION FOR SUMMARY JUDGMENT ON GROUP THREE CLAIMS, DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING
Respondent has filed a motion for summary judgment on the Group Three Claims (Claims 17-36 and 68 of the Second Amended Petition). Petitioner has filed a motion for summary judgment, or, in the alternative, for evidentiary hearings on these same claims. For the reasons discussed below, Respondent's motion for summary judgment is GRANTED IN PART and DENIED IN PART, Petitioner's motion for summary judgment is DENIED, and Petitioner's motion for an evidentiary hearing is GRANTED IN PART and DENIED IN PART.
On April 26, 1985, Ernesto Dominguez Mendez (a.k.a. "Chacho"), Marcos Zamora and Jose Rositas were killed execution-style inside Dominguez's body shop. Pedro Castillo, who was also at the body shop, was shot but survived. In June 1985, Petitioner Ronaldo Medrano Ayala ("Petitioner" or "Ronaldo") and his brother Hector Ayala were arrested for the murders and attempted murder. Petitioner's trial was severed from that of his brother. A third man, Joseph Moreno, was also arrested and tried separately for the murders.
On October 12, 1988, a jury found Petitioner guilty of three counts of murder (Cal. Penal Code § 187), one count of attempted murder (Cal. Penal Code §§ 187/664), one count of robbery (Cal. Penal Code § 211), and three counts of attempted robbery (Cal. Pen. Code §§ 211/664). The jury also found that Petitioner had used a firearm in the commission of these crimes in violation of Cal. Penal Code § 12022.5. In addition, the jury found Petitioner guilty of the two special circumstances allegations -- multiple murder (Cal. Penal Code § 190.2(a)(3)) and murder committed in the course of robbery (Cal. Penal Code § 190.2(a)(17)(i)).
The penalty phase commenced on November 14, 1988. In connection with this phase, the parties stipulated that Petitioner had been convicted of the following six felonies over the prior 18 years: second degree burglary, unlawfully taking or driving a motor vehicle, robbery, possession of a dagger in prison, first degree burglary, and possession of heroin.
The prosecution also presented evidence of the following unadjudicated violent crimes: (1) the murder of John Casas, a fellow inmate at Folsom Prison, on February 21, 1980; (2) the robbery of the Pantry clothing store on November 24, 1972 and the use of a firearm in the commission of the robbery; (3) the stabbing of Wallace Williams, a fellow inmate at San Quentin, on November 23, 1975; (4) the stabbing of Richard Christiansen, a fellow inmate at San Quentin, on October 27, 1977; and (5) the stabbing of Alex Macugay, a fellow inmate at Soledad Prison, on November 30, 1982.
After the penalty phase of the trial, the jury returned three separate verdicts of death. Petitioner was sentenced to death and a 22-year consecutive sentence.
In 1989, Hector Ayala was found guilty of the murders and also received a sentence of death. Joseph Moreno was acquitted. The record before the Court does not include transcripts from Hector's or Moreno's trial.
Petitioner filed his automatic appeal with the California Supreme Court. On June 8, 2000, the California Supreme Court affirmed his conviction and sentence. See People v. Ayala, 23 Cal. 4th 225 (2000).
On July 27, 1998, Petitioner filed a habeas petition with the California Supreme Court. On August 23, 2000, the California Supreme Court summarily denied the petition without comment. Subsequently, Petitioner filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied on March 5, 2001.
On May 3, 2002, Petitioner filed his Petition for Writ of Habeas Corpus with this Court. Shortly thereafter, the Court dismissed without prejudice certain claims presented in the Petition so that Petitioner could exhaust the claims in state court. The Court stayed the federal proceedings pending the state court exhaustion.
On September 23, 2002, Petitioner filed a First Amended Petition for Writ of Habeas Corpus in the California Supreme Court. On September 10, 2003, the California Supreme Court denied the petition.
On November 14, 2003, Petitioner filed his First Amended Petition for Writ of Habeas Corpus in this case. He subsequently filed a Second Amended Petition for Writ of Habeas Corpus.
II. STANDARD OF REVIEW AND APPLICABLE LAW
A. Standard of Review under AEDPA
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a) (emphasis added).
In Lindh v. Murphy, 521 U.S. 320, 336 (1997), the United States Supreme Court held that the new provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") "generally apply only to cases filed after the Act became effective." In capital habeas actions, cases are typically commenced by the filing of requests for appointment of counsel and stays of execution of the petitioners' death sentences. Petitioner filed his request for appointment of counsel and stay of execution on April 27, 2001 and filed his petition with this Court on May 3, 2002. AEDPA became effective on April 24, 1996, when the President signed it into law. See id. Accordingly, AEDPA applies to this case.
Relevant to this case are the changes AEDPA rendered to 28 U.S.C. § 2254(d), which now reads:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.A. § 2254(d)(1)-(2).*fn1
A decision is "contrary to" clearly established law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. See Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves an "unreasonable application" of federal law if "the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir. 2004).
Even when the federal court undertakes an independent review of the record in the absence of a reasoned state court decision, the federal court must "still defer to the state court's ultimate decision." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). If the state court decision does not furnish any analytical foundation, the review must focus on Supreme Court cases to determine "whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law." Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2001). Federal courts also look to Ninth Circuit law for persuasive authority in applying Supreme Court law and to determine whether a particular state court decision is an "unreasonable application" of Supreme Court precedent. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
B. Standard for Evidentiary Hearing
AEDPA also limited the circumstances under which district courts may grant an evidentiary hearing. Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing unless the applicant shows that:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Under AEDPA, when determining whether to grant an evidentiary hearing, the district court must first ascertain whether the petitioner has failed to develop the factual basis of a claim in state court. Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005). As explained by the Supreme Court:
For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met.
If the petitioner has not failed to develop the facts in state court, an evidentiary hearing is required if (1) the petitioner establishes a colorable claim for relief -- i.e., petitioner alleges facts that, if proven, would entitle him to habeas relief; and (2) the petitioner did not receive a full and fair opportunity to develop those facts. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). The second requirement is met by a showing that: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.
Townsend v. Sain, 372 U.S. 293, 312 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
C. Ineffective Assistance of Counsel
The Group Three claims allege numerous instances of ineffective assistance of trial counsel at both the guilt and penalty phases of trial, as well as one claim of ineffective assistance of appellate counsel.
To establish that trial counsel was constitutionally defective, the petitioner must demonstrate (1) that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) that "the deficient performance prejudiced the defense." Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1995) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To establish deficient performance, the petitioner must show that the representation he received "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Because of the difficulties inherent in evaluating the challenged conduct from counsel's perspective at the time, there exists a strong presumption that counsel's conduct "falls within the wide range of reasonable professional assistance." Id. at 689. The petitioner must overcome the presumption that the challenged action might be considered sound trial strategy. Id. at 689.
To establish prejudice, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Individual deficiencies that may not by themselves meet the Strickland prejudice standard may, when considered cumulatively, constitute sufficient prejudice to justify granting the writ. Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995).
The process of determining penalty phase prejudice requires courts to "evaluate the totality of the available mitigation evidence -- both that adduced at trial, and the evidence adduced in the habeas proceeding -- in reweighing it against the evidence in aggravation." Williams (Terry Williams) v. Taylor, 529 U.S. 362, 397-98 (2000). A court "must carefully weigh the mitigating evidence (both that which was introduced and that which was omitted or understated) against the aggravating evidence," and then determine whether there is a reasonable probability that the sentencer "would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death." Mayfield v. Woodford, 270 F.3d 915, 928 (9th Cir. 2001) (quoting Strickland, 466 U.S. at 695). See also Pizzuto v. Arave, 385 F.3d 1247, 1248-49 (9th Cir. 2004) (B. Fletcher, J., dissenting).
III. VOIR DIRE AND JURY ISSUES
A. Claim 17 - Questioning Re: Mexican Mafia and Gangs
Claim 17 asserts that trial counsel violated Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights by their failure to inquire whether prospective jurors had a bias or prejudice regarding the Mexican Mafia and prison gangs, resulting in a jury whose biases and prejudices were unknown. The Court rejects this claim.
Petitioner presents the Court with the declaration of Attorney Steven Harmon, a criminal law practitioner, who opines that the failure to voir dire the jury on the subject of gangs constituted ineffective assistance of counsel. However, the state court disagreed with this assessment. In the direct appeal opinion, the California Supreme Court noted:
Assuming that defendant's reference to counsel's reticence in the face of the possibility of introducing references to the Mexican Mafia is a claim of ineffective assistance of counsel, we see none. It was a reasonable tactical choice-indeed it was, as stated, probably a wise choice- for the defense to avoid jeopardizing its victory regarding mentions of gangs.
In sum, defendant's claim is without merit.
Petitioner has failed to demonstrate that counsel's decision to refrain from making any mention of gangs to the jury was not "sound trial strategy" under the circumstances of this case. Strickland, 466 U.S. at 689. It was not unreasonable for counsel to take the position that explicit references to gangs would prejudice Petitioner. It was also not unreasonable for counsel to believe that the issue of gangs could be kept in the background. As explained by the California Supreme Court, "As a result of the trial court's efforts, the jury never heard the names Mexican Mafia or La Eme. . . . [T]he jurors heard only sanitized references to other people or groups that might wish to influence a witness's conduct or testimony or retaliate against the witness for harming the defense." Ayala, 23 Cal. 4th at 277.
Even assuming deficient performance, Petitioner has not established that he suffered prejudice. Petitioner's allegations of prejudice are rooted in the assertions that the jury's biases were "undiscovered and unknown," that this was defense counsel's first capital case, and that there was an air or "fear and panic" due to state actions and predictions of violence by Detective Chacon. However, Petitioner has not shown that any of the jurors was in fact biased and, therefore, has failed to make an affirmative showing of prejudice. See Fields v. Woodford, 309 F.3d 1095, 1108 (9th Cir. 2002) (explaining that it is not enough that the petitioner shows the possibility that he was prejudiced by counsel's errors; rather, he must demonstrate that the errors actually prejudiced him.).
The Court cannot say that the state court's denial of this claim was contrary to or an unreasonable application of clearly established federal law. Williams, 529 U.S. at 412-13. Therefore, Petitioner is not entitled to habeas relief on this claim.
B. Claim 34 - Peremptory Challenges
In Claim 34, Petitioner asserts that trial counsel violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments by using only nine of the twenty allotted peremptory challenges during jury selection, resulting in a biased jury being empaneled. Petitioner maintains he suffered prejudice as a result of trial counsels' failure to use all of the peremptory challenges, because, due to this failure, the state court concluded Petitioner had waived his claim that the court should have excused certain prospective jurors for cause. (Pet'r's Mem. of P & A at 112.)
The California Supreme Court held that Petitioner had waived his claim that prospective jurors should have been excused for cause because he did not exhaust all of his peremptory challenges and express dissatisfaction with the jury ultimately selected and did not justify his failure to do so. Ayala, 23 Cal. 4th at 261. Instead, Petitioner told the trial court that he was satisfied with the jury as constituted even though it included a juror (James Cosgrove) whom he had previously challenged for cause. The California Supreme Court rejected Defendant's argument that his failure to express dissatisfaction with the jury as constituted was justified because the trial court used the "struck jury" selection system rather than the "jury box" method. Furthermore, the California Supreme Court held that Petitioner was not prejudiced by the composition of the jury. The California Supreme Court reasoned:
In any event, the jury's composition did not prejudice defendant in any way. The parties agree that only one seated juror, James C., was the subject of a challenge for cause by defendant. Our review of James C.'s Hovey voir dire testimony satisfies us that the trial court properly denied the challenge. James C. initially testified that he favored imposing the death penalty in 80 percent of murder cases, though "if there were mitigating circumstances, I would take them into [account] and weigh them." And he agreed that the death penalty was, in counsel's words, "justified" in the abstract for the killings of three people execution style. But he also testified that he would follow instructions to impose life imprisonment if he found that the mitigating and aggravating evidence was in balance, and to impose the death penalty only if he found that the aggravating evidence substantially outweighed the mitigating. He further testified that he would be receptive to mitigating evidence at the penalty phase even if defendant had been convicted of three execution-style murders. Following defendant's challenge for cause, the trial court ruled that James C.'s views on the death penalty did not substantially impair his ability to follow his oath as a juror. The ruling was proper.
The California Supreme Court's conclusion that Petitioner was not prejudiced by the composition of the jury was not an unreasonable application of controlling federal law. The Sixth Amendment "guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961); Green v. White, 232 F.3d 671, 676 (9th Cir. 2000). Establishing prejudice under Strickland in the realm of jury selection "requires a showing that, as a result of trial counsel's failure to exercise peremptory challenges, the jury panel contained at least one juror who was biased." Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004); United States v. Quintero-Barraza, 78 F.3d 1344, 1349 (9th Cir. 1995).
The standard for determining whether a prospective juror should be excused for cause due to bias is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). Although it is unlikely that a juror's bias will be "unmistakably clear," "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Witt, 469 U.S. at 425-26. Accordingly, the Supreme Court cautions that "deference must be paid to the trial judge who sees and hears the juror." Witt, 469 U.S. at 426. "[T]he trial court, hopefully, imbibed with a fair amount of common sense as well as an understanding of the applicable law, views the questioning as a whole." Id. at 435.
During voir dire, Juror Cosgrove initially stated that he "would probably be 80 percent to 20 percent saying that if I felt somebody did commit murder, that the death penalty should be applied." (RT 9199.) During questioning by defense counsel, he agreed that he could consider a penalty other than death, and that "if there were mitigating circumstances, I would take them into effect and weigh them," and that he would follow the court's instructions. (RT 9201-02.) Cosgrove admitted that he "would still lean towards the death penalty if the aggravating evidence was greater than the mitigating evidence and I had to make a decision between one of the two." (RT 9203.)
Juror Cosgrove, while admitting that he favored the death penalty, asserted that he could judge the defendant with an open mind. He stated "I think it would be open, but I'd be predisposed towards the death penalty." (RT 9214.) Cosgrove went on to affirm that "I'd listen to, like I say, both the facts, both sides." (RT 9216.)
The trial court found that Cosgrove was a satisfactorily unbiased juror. (RT 9224-25.) Considering Cosgrove's answers to all of the questions and paying deference to the trial court's findings, the Court cannot say that the state court unreasonably applied controlling federal law in determining that Petitioner was not prejudiced by the composition of the jury. Petitioner has not presented any evidence that Juror Cosgrove (or any other member of the jury) "had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035 (1984).
Petitioner presents the Court with evidence that he believes demonstrates that the jury pool was predisposed against Petitioner. (Decl. of Warren O. Hodges.) Petitioner has submitted a chart, which calculates the "favorability rating" of each of the 12 jurors, 6 alternates, and 25 jurors remaining in the venire after the completion of Hovey examination (where jurors answer questions concerning death qualifications outside the presence of other prospective jurors) and exclusions for cause. (Id. at ¶ 8.) Habeas counsel assigned a numerical rating to each juror in ten different categories, including (1) reluctance to impose the death penalty; (2) a lack of reservation about the death penalty; (3) agreement that the death penalty was used "too seldom"; (4) belief that the death penalty should always be imposed for some crimes; (5) agreement that the criminal justice system is "too lenient" in California; (6) belief that the sentencing of a criminal defendant to life without possibility of parole suggests that the defendant may be released before completion of his sentence or an expressed resentment that the penalty costs the taxpayers too much money; (7) opinions about gangs; (8) opinions about drugs; (9) ability to adhere to the presumption of innocence; and (10) ability to consider certain factors in mitigation of sentence, including sympathy. (Id. at ¶¶ 10-11.) Petitioner concludes that the seated jury panel garnered an average rating of 5.16, while the entire venire had an average rating of 4.8, with a lower score indicating a juror more palatable to the defense. (Id. at ¶ 12.) Petitioner argues that if trial counsel had employed this system and used peremptory challenges on certain prospective jurors with high ratings, the jury would have been substantially more favorable to the defense. (Id. at ¶ 13.)
The reliability of these "favorability ratings" is questionable at best. They are based on subjective interpretations of jurors' answers. Moreover, the ratings take a simplistic view of "favorability." In choosing a jury, trial counsel may consider a variety of factors, such as profession, age, gender, etc., and may be swayed by subjective criteria such as demeanor and believability. The ten categories that form the basis of the "favorability ratings" do not take into account the complex and often subtle considerations that guide jury selection. See People v. Freeman, 8 Cal.4th 450, 485 (1994) ("Because the use of peremptory challenges is inherently subjective and intuitive, an appellate record will rarely disclose reversible incompetence in this process.").
Even if the Court were to set aside the issue of the "favorability ratings" methodology, Petitioner's claim still fails. In reviewing counsel's decisions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance." Strickland, 466 U.S. at 689. This deferential view applies to jury selection. Counsel may have had a reasonable and tactical rationale for deciding not to exercise a peremptory challenge on Mr. Cosgrove and for deciding to leave some of the peremptory challenges unused, including concerns regarding which prospective jurors may have replaced any challenged jurors in the panel. See People v. Kipp, 18 Cal. 4th 349, 367-68 (1998).
As in Witt, the state court's finding in this case was "made under the proper standard, was subject to § 2254(d), and was fairly supported by the record." Witt, 469 U.S. at 435. Therefore, Petitioner is not entitled to habeas relief on this claim.
C. Claim 36 -- Failure to Object to Juror Misconduct
Claim 36 asserts that trial counsel violated Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments by failing to investigate and object to jury misconduct in the form of an inappropriate juror comment made during a break in the guilt phase proceedings. This claim has no merit.
The Sixth Amendment guarantees a criminal defendant a fair trial with "a jury capable and willing to decide the case solely on the evidence before it." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). Petitioner must show that the alleged error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 627 (1993).
Petitioner alleges that the jury concluded he was guilty prior to beginning any deliberations. During the early stages of the guilt phase, while counsel were conferring with the judge, a female juror was heard remarking, "This is the best jury he'll ever get." (Pet. at ¶ 372.) This resulted in laughter from a large portion of the jury and the bailiff then cautioned them against making any further remarks of that type. Petitioner alleges that had trial counsel brought this incident to the attention of the judge, the court could have instructed the jury appropriately or entertained a motion to excuse the juror who made this remark.
Petitioner also points out that earlier in the proceedings, during jury selection, prospective juror Bautista was dismissed from the panel because he loudly stated, "Just hang him," which was overheard by at least one prospective juror seated near him during the voir dire process. (RT 11424.) The court excused Mr. Bautista, and queried the entire remaining jury venire to confirm that no other jurors had overheard any improper or biased remarks. (RT 11433-34.) Petitioner equates prospective juror Bautista's comment condemning Petitioner with the juror remark at issue and concludes that trial counsel was ineffective for failing to object to and investigate this purported incident of jury misconduct.
While the actual "presence of a biased juror cannot be harmless," Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998), and requires a reversal and new trial without a showing of prejudice, the courts have not held that the failure to investigate potential juror bias presents any such structural error. United States v. Dutkel, 192 F.3d 893, 899 n.4 (9th Cir. 1999). The courts have also held that it is paramount "not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury." Davis v. Woodford, 384 F.3d 628, 653 (9th Cir. 1994) (quoting United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974)).
"[R]eversible error commonly occurs where there is a direct and rational connection between the extrinsic material and a prejudicial jury conclusion, and where the misconduct relates directly to a material aspect of the case." Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir. 1987)(emphasis added). Petitioner presents no evidence to suggest that any of the jurors relied on extrinsic statements or evidence in reaching a verdict or that any juror reached a determination on defendant's guilt or innocence prematurely. As argued by Respondent, "Petitioner has failed to show that the juror's jocular remarks revealed anything more than an espirit de corps." (Ans. at 96.)
The state court's denial of this claim was not contrary to or an unreasonable application of clearly established federal law. Therefore, Petitioner is not entitled to habeas relief on this claim.
A. Evidence Presented During Guilt Phase
The Court refers the parties to the statement of the evidence by the California Supreme Court in People v. Ayala, 23 Cal. 4th 225, 242-50 (2000). The California Supreme Court's factual findings are presumptively reasonable and entitled to deference in these proceedings. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981).
Set forth below is a summary of evidence presented during the guilt phase that will provide a context for Petitioner's guilt phase ineffective assistance of counsel claims.
There was little physical evidence linking Petitioner with the homicides. Petitioner's fingerprints were found on beer cans in the office where the murders took place, and Hector's fingerprints were found on an orange juice bottle in the office. (RT 13989-14007.) However, the fingerprints did not establish that the Ayalas were present at the time of the murders. Although bullets (.38 caliber and .22 caliber) were recovered from the victims, there was no evidence that any firearms were found in the custody of Petitioner, Hector, or Moreno. Accordingly, the case turned upon the testimony of witnesses.
The prosecution case-in-chief relied heavily on two witnesses: Pedro Castillo and Juan Meza. Castillo was the sole survivor and identified the Ayalas and Moreno as the perpetrators. Juan Meza testified that the Ayalas had included him in a plan to steal drugs and money from Dominguez and to kill the witnesses.
The defense case was primarily directed at discrediting Meza and Castillo and raising the possibility that Castillo and/or other individuals committed the crime. An important witness for the defense was Rafael Mendoza Lopez, who testified that on the day of the murders, he did not see the Ayalas or Moreno, but did see people he did not recognize hanging around the body shop. He also testified that Castillo said he was waiting for some people from Mexico and showed him two guns hidden in the trunk of his car.
In a startling turn of events, Mendoza subsequently recanted his testimony when called by the prosecution on rebuttal. Mendoza testified that he lied on the stand because Petitioner had asked him to do so and he feared for his life. Mendoza testified that during a visit to Petitioner in prison, Petitioner held up a handwritten note that outlined the story he wanted Mendoza to tell and included a statement to the effect that what happened to Chacho (Dominguez) had to happen.
2. Prosecution Case-in-Chief
Pedro Castillo worked with the other victims at the body shop. He was shot and stabbed on the night of the murders but survived.
Castillo testified that his job consisted of picking up cars at auctions to determine whether they should be junked or repaired and sold. (RT 11857.) He also helped Marcos Zamora distribute heroin that was being sold out of the shop. (RT 11913-15.) Castillo admitted that he previously committed perjury at a preliminary hearing regarding his and the victims' involvement in the drug business. (RT 11916-19.)
According to Castillo, about a week before the murders, Hector came into the shop and asked where Dominguez was. (RT 12154-55.) Castillo said that Dominguez was in Mexico. Hector warned that he better be telling the truth. Castillo, thinking that Hector might know the truth, said that Dominguez was in jail. Hector responded by saying,
"Don't be lying to me. Okay, well, then he's in Mexico then." Previously, Dominguez had told Castillo to treat the Ayalas right. (RT 12154.)
On April 25, 1985, the day before the murders, Castillo saw Ronaldo, Hector, and Moreno at the shop in the late afternoon. (RT 12133-36.) They were drinking with Rositas, Zamora, and Dominguez and were talking about going to Mexicali to party.
On the day of the murders, Castillo got to work at 8:00 a.m. (RT 11933-41.) That day, he was going to pick up an engine at the Red Baron, a junkyard at the bottom of the hill. A $50 or $60 downpayment had already been made, and Zamora gave Castillo $500 in cash to pay the balance. Sometime in the morning, Castillo called Ray at the Red Baron. (RT 11971-76.) Ray told Castillo that he would call Castillo back when the engine was ready. Ray never called. After 5:00 p.m., Castillo gave the money back to Zamora.
Castillo saw Ronaldo, Hector, and Moreno (a.k.a. "Cucuy") pull up to the shop in Moreno's van around 10:00 a.m. (RT 11941-42.) Ronaldo hung around the garage all day. (RT 11944.) At some point, Castillo noticed that Hector and Moreno were gone. (RT 12142-43.) Zamora said they were getting clothes for Ronaldo. Castillo did not recall seeing any clothes when Hector and Moreno returned to the shop.
Castillo left the shop around noon to get methadone. (RT 11944-48.) He couldn't find any, but purchased $25 worth of heroin and injected the drugs. He returned to the shop and worked on various vehicles, including a brown van parked in front. (RT 11965.)
At some point in the afternoon, Castillo walked into the office where Ronaldo seemed to be dozing. (RT 11965-67.) Ronaldo asked Castillo if Dominguez had come in yet. Castillo said, "No," and Ronaldo asked him to call Dominguez. Castillo called Dominguez's house and Ronaldo got on the phone with Dominguez. Castillo left the office and did not hear the conversation.
Castillo saw Dominguez arrive after 5:00 p.m. (RT 11976.) Dominguez and the others continued to talk about going out because they had not gone to Mexicali the night before. (RT 12142-43.) Castillo recalled that Hector was drinking vodka and orange juice and Ronaldo was drinking beer. (RT 12117-21.)
Castillo was working on a van in front of the garage when the sun was setting. (RT 11988-93.) Castillo went into the garage to get a tester, screwdriver, and pliers. He saw Moreno standing in front of the garage. When he walked into the garage, he heard, "Pete, you too," and saw Hector with a pistol aimed at his head. (RT 11997-12004.) Hector guided him into the office. Zamora, Rositas, and Dominguez were already in the office and had their hands bound behind their backs. (RT 12005-11.) Ronaldo was also in the office and was holding a gun.
Hector said, "Yeah, Chacho, you thought you were real smart. Didn't you know you had to go through us?" (RT 12012-15.) Hector instructed Moreno to tie up Castillo's hands. Ronaldo demanded, "We want $10,000 or someone's going to die." (RT 12018.) Dominguez said, in Spanish, "Marcos has the money. Hey, homeboy, I never did you nothing."
Castillo claimed that he had some money in his pocket as well as some money hidden in his tow truck. (RT 12025-29.) He did not have any money in his tow truck but had $40 or $50 in his pocket. Hector reached into Castillo's pocket and took the money. Castillo indicated that the money in the tow truck was under the seat on the driver's side in the corner. Hector threatened to blow Castillo away if he was lying and told Moreno to check it out. (RT 12030-38.) Hector also said something about them lying to him and stabbed Castillo's upper left leg/buttock area. Moreno returned and reported that he didn't find any money. (RT 12041-42.)
When Castillo insisted the money was there, Ronaldo picked Castillo up from the back of his jacket and guided him out of the office. (RT 12041-41.) When they got to the garage door, Castillo pretended that the door wasn't open enough for him to crawl out. (RT 12049-60.) Moreno opened the garage door to a point where the garage door gave resistance and would slam back down if not opened beyond that point. Castillo ducked under the door and started running. He felt the sting of a bullet on his left back. He continued to run, and then fell into the street. He heard three series of shots (two shots each) within the course of 4-5 seconds and saw three silhouettes moving away from the garage. The next thing he remembers is being on the hood of a police car. (RT 12076-84.)
When questioned by officers at the scene, Castillo said the perpetrators were Mexican. (RT 12805-07.) He described one as wearing a red Pendleton jacket and having dark curly hair. In the ambulance, Castillo indicated that the suspects spoke English and were not illegal aliens. (RT 13088-89.) Castillo mentioned a newer model gray van in the upper lot.
After Castillo underwent surgery and was in the surgical intensive care unit, Detective Padillo attempted to question Castillo but he was fading in and out of consciousness. (RT 13125-30.) Padillo returned the next day. Castillo said there were three people involved. (RT 13130-34.) He described the first suspect as a male Mexican, approximately 2 inches taller than himself and wearing a red Pendleton shirt. He described the second suspect as a fat male Mexican wearing a black jacket and Levi's. The third suspect had an "old, long, black gun." Castillo also gave very detailed information about the gray van. (RT 13135-36.) Due to the detailed description of the van and the sparse description of the suspects, Padillo thought Castillo was hiding something from him and thought that Castillo was "very hesitant, a form of being scared." (RT 13138.) The following day, Padillo returned to the hospital, and Castillo told him the persons responsible were Ronaldo and Hector Ayala and Moreno. (RT 13140-44.) Castillo said that the van belonged to Moreno. Castillo refused to sign a statement because he was afraid of "retaliation from a group." Castillo was shown photographs of handguns and he identified a six-inch lugar as Ronaldo's weapon and a blue steel 2-inch service type revolver (a "chrome" gun with "one of those round things") as the type of gun being held by Hector. (RT 13171-74.)
Castillo testified that when the police were asking him questions in recovery, he was worried about his family, including his wife and four kids. (RT 12101-04.) Sherwood Roberts, an attorney for the Dominguez family, visited Castillo in the hospital. (RT 15818-22.) Castillo sought his advice as to whether he should tell the police what he knew.
Roberts advised Castillo to tell the police everything. Subsequently, Castillo met with Padillo and identified Hector, Ronaldo, and Moreno.
Meza testified that about a month or three weeks before the murders, he went to the body shop with Hector and Ronaldo to buy heroin. (RT 14376-79.) Hector and Ronaldo went into Dominguez's office. Shortly afterwards, Hector, Ronaldo, and Dominguez came out of the office and Dominguez said, "Come back later." Ronaldo and Hector looked like they didn't approve of what Dominguez had said. Dominguez went back into the office and came back with three balloons which he handed to Ronaldo. While Meza and the Ayalas were driving back to Hector's house, Ronaldo said, "You know what? F___ these mother-f____. Let's take them off." (RT 14385-87.) Meza understood Ronaldo's statement to mean that they should rob the shop. (RT 14389.) At Hector's house, Ronaldo brought the subject up again. (RT 14390-91.) Hector teased him about how stupid the idea was and the brothers argued about it for a little while.
A week later, Hector came to Meza's house. (RT 14392-93.) Hector sat on the couch and said in a low voice that Dominguez had gone to Tijuana to score some drugs. Meza didn't respond. Meza's wife came in the room and they changed the subject. A few days later, he and Hector were at a mutual friend's house. (RT 14393.) Hector told Meza to be at his house on Wednesday because he had something big going.
Meza went to Hector's house on Wednesday. (RT 14394-14400.) It was about a week and a half before the murders. Hector walked out of the bedroom with a .38 revolver -- it was 6 inches long and an older gun. Hector said he would like to use Meza's guns for the robbery. Meza agreed. Ronaldo discussed how easy it would be for them to go into the shop, line them all up, lay them down, tie them up and wait for the drugs. Ronaldo asked Meza to do the tying up. The plan was to get drugs from Dominguez who, the Ayalas believed, was in Tijuana scoring a large amount of heroin. They were going to walk in the shop, tie the victims up, and force them to tell them where the drugs were.
Ronaldo said that the witnesses would be killed. The Ayalas expected that Castillo, Zamora, Tony Figueroa, and Dominguez would be at the shop. Dominguez's wife was expected to bring the drugs in an orange van. (RT 14401-03.) When she arrived, she would be killed as well.
At some point, Hector told Meza that a pound of heroin was coming in from Mexico and that there would be $10,000 in cash. (RT 14405-08.) The Ayalas mentioned that part of the money would go to "Topo" in Los Angeles. (RT 14419.)
The following weekend, Meza met Hector and Moreno at a liquor store. (RT 14409-12.) They started talking and decided to go to Hector's house because Hector had some drugs. After taking the drugs, Hector asked Moreno if he would do the driving for the robbery. Moreno responded, "Hell . . . hell, yes. I'll even bring my little .22." Moreno did not look surprised.
The Wednesday before the killings, Hector came over to Meza's house and told him to be home on Friday between 5:00 and 6:00 p.m. (RT 14413.) Hector told him that they would come and pick him up. On that Friday, Meza made it a point to be away from the house from 1:00 or 2:00 - 10:00 p.m.
Meza did not actually intend to participate in the plan because he was afraid he would end up dead. (RT 14401-03.) In an interview with Michael Rolan, an investigator for the District Attorney's Office ("DA's Office") Meza explained that he "had been on the cross with [the Ayalas] behind another incident, and . . . was more or less in fear of my own life." (RT 14610-11.) (This part of the interview was read to the jury.)
Around the time of the murders, Meza was using between 1-2 grams of heroin a day. (RT 14537.)
Meza was arrested in 1987 for possession of drugs for sale. (RT 14579-83.) He entered a plea of guilty on March 24, 1987. The maximum sentence he was facing was four years. He met with the DA's Office after entering his plea. Initially, Meza demanded a number of things in exchange for his cooperation: immediate release, protection for his family, and the return of a truck and $17,000 that had been seized. (RT 14584-92.)
Ultimately, Meza agreed to cooperate, and he received witness protection benefits, use-immunity, and a promise by the DA's Office to seek Meza's release after testifying. (RT 14419; 14584-92.) At the time of trial, Meza's expected release date was February, 1989. (RT 14579-83.)
Maria Meza, Meza's wife, testified that on the day of the murders, Meza left the house around 5:00 a.m. and did not return until past 11:00 p.m. (RT 14660-64.) Hector came by the house looking for Meza two times -- once at 10:00 a.m. and later at 5:00 p.m. (RT 14659-64.) On the latter occasion, Hector seemed mad that Meza wasn't home and seemed in a hurry.
On cross-examination, Meza testified that he had known Detective Chacon since he was young and trusted him. (RT 14538.) Meza also testified that he met with Chacon two to three times before meeting with the DA's Office in 1987. (RT 14455-63.)
According to booking sheets, Meza was incarcerated from March 26, 1985 until April 8, 1985. (RT 14807-10.) In closing, defense counsel argued that this was inconsistent with Meza's testimony that he went to the body shop with the Ayalas three to four weeks before the murders. (RT 16779.)
William Truman Peek, a supervising clerk for the Sheriff's Department, testified that Dominguez was in custody beginning April 10, 1985, and was not scheduled to be released until April 28, 1985. (RT 14795-14801.) The only reason he was released early was due to overcrowding. The decision to release for overcrowding is made between midnight and 4:30 a.m. on the day of release, and a prisoner does not have prior warning that he will be released. Defense counsel argued that this evidence went against Meza's testimony because Hector could have and would have checked to see if Dominguez was in jail or Mexico if he was actually planning something. (RT 16783-87.)
Evidence was introduced that Ronaldo submitted to drug testing on March 14 and 28 and April 11 and 25 and that there were no positive results. (RT 14943-48.) Defense counsel argued that this evidence contradicted Meza's testimony about Ronaldo doing drugs during the time when the plans were allegedly being laid. (RT 16779.)
Debra Ann Duesler, a probation officer, testified that in 1985, she conducted an interview of Meza for purposes of preparing a presentence report. (RT 14789-91.) Meza said that he had a serious drug problem which caused him to "lie about everything." Meza also remarked that he had gotten in the habit of lying so he was frequently unaware when he was lying.
Defense counsel proffered that Richard Savocchio would testify that in 1987 or early 1988, he was in prison with Meza. (RT 15485-92.) Meza allegedly told him that he didn't know anything about the case but was going to cut a deal and testify because the defendants were going down anyway. Trial counsel chose not to call Savocchio as a witness because prison records indicated that Savocchio had reported problems with the EME (Mexican Mafia). Savocchio explained that he had lied about having problems with the EME so that he could get transferred to a different facility. (RT 15475-77.) The court ruled that the prosecution could inquire into the fact that Savocchio had lied about having problems with the EME if the defense called his as a witness before the jury. (RT 15485.)
b. Discrediting and Shifting Blame on Castillo; Rafael Mendoza Lopez
Defense counsel asked Dr. Van Strum about a preoperative note he prepared regarding Castillo. (RT 15005.) This note indicated that Castillo's last heroin injection was at approximately 7:30 p.m. This information contradicted Castillo's testimony about his whereabouts at the time.
Rafael Mendoza Lopez ("Mendoza" or "Rafa") testified that Castillo was working for Dominguez selling drugs at the shop by day and from the back of Castillo's house by night. (RT 15135-37.) Mendoza had a deal with Castillo that in exchange for drugs, he would fill up cars with gasoline. (RT 15150-53.)
On April 26, 1985, Mendoza went to the body shop around 2:00 p.m. to fill up a car with gas so that he could get some drugs from Castillo. (RT 15156-62.) He saw Castillo as well as Bobby Garcia, Bobby's brother, and Miguel Lopez ("Pelon") (men who worked at the tire shop next door). He also saw other people he didn't recognize. They were speaking in Spanish, had beer-bellies, and were drinking. They appeared to be from Mexico.
Castillo came up to Mendoza and was acting friendly. (RT 15163-71.) Castillo seemed drunk. Castillo and Mendoza walked to the upper lot and Castillo gave him the keys to a light blue Nova or Malibu. Castillo opened the trunk of the car with a screwdriver. There was clothing in the trunk. As Castillo looked through the clothing, two guns were revealed. One of the guns had chrome on it. Castillo put the guns in the clothes again and took them out of the trunk. Castillo said he was waiting for some people from Mexico. Castillo told Mendoza to exit the lot through a carport in the rear onto Logan. Mendoza drove the car to a Chevron station and put gas in the tank. When he returned, Castillo gave him some balloons of heroin.
Bertha Huerta, Mendoza's sister, testified that she dropped her brother off at the shop on the day of the murders at noon or 1:00 p.m. (RT 15536-38.) She called him later in the day after she saw the news story about the murders.
Javier Hernandez, a brother-in-law of Dominguez, testified about Castillo's involvement in Dominguez's drug business in 1983 and early 1984. (RT 15559-66.) (When Castillo testified, he indicated that he and Dominguez did not go into business together until the latter half of 1984 and were not involved in the sale of drugs prior to that time. (RT 12581-88; 12768-74.)) In a proceeding outside of the jury's presence, defense counsel claimed that Hernandez had a conversation with Castillo in 1984 during which Castillo complained that he and Hernandez were doing all the work and Dominguez was getting all the money. (RT 15587-93.) Castillo asked Hernandez if he had ever thought about taking over. Hernandez responded that the only way to accomplish that would be to get rid of Dominguez. Castillo responded, "nothing is impossible." In a subsequent conversation, Castillo allegedly reminded Hernandez about the "opportunity" they had previously talked about. The court ruled that this evidence was not sufficient to go to the jury on the issue of third-party culpability.
Miguel Lopez testified that a week before the shootings, he heard Castillo talking with Zamora. (RT 13426-28.) Zamora asked him why he didn't retire from the body shop so he could make some money. Castillo indicated that he would do so "next week."
Alfredo Briseno testified that he bought heroin from Dominguez in 1983, 1984, and 1985. (RT 15686-91.) Briseno would call the shop, and Castillo would answer the telephone and deliver the drugs to him. Castillo would drive to his house in a light blue Volkswagen or a dark blue American car. (RT 15692-94.) The blue American car had a trunk that didn't work. Sometimes Castillo would ask him for a screwdriver to open the trunk. Castillo actually asked Briseno to fix it because he didn't know too much about body work.
c. Shifting Blame on Other Individuals
Traci Pittman testified that on the night of the murders, she was at Swafford's liquor store at the corner of 43rd and National. (RT 14854.) She saw a young Mexican male, approximately 5'8," 22-25 years old, with a slight mustache, collar-length straight hair combed straight back, and wearing a red plaid Pendleton-type overshirt and dark jeans. (RT 14860-62.) His right hand was under his shirt and held to his side around the waist area. This area was "bulky." The bulk was more consistent with a gun than a six pack. (RT 14923.)
She saw another man in the area, a Mexican male, 5'6," early 20's, wavy hair, and wearing a dark jacket with a collar. (RT 14863.) This man was holding a brown paper bag. The first man she saw approached this man, and they had a conversation in Spanish. Both of these men, one after the other, crossed the street and walked to the right side of the tire shop where they disappeared from sight. (RT 14864-70.) Shortly afterwards (about 5 minutes later), ...