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Ronaldo Medrano Ayala v. Kevin Chappell

March 28, 2013

RONALDO MEDRANO AYALA,
PETITIONER,
v.
KEVIN CHAPPELL, WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT.*FN1



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

DEATH PENALTY CASE ORDER DENYING HABEAS RELIEF ON CLAIMS 2, 4, 5, 8, 12, 18-20, 24, 35, 67, AND 75

Between March and November 2010, the Court held an evidentiary hearing on Claims 4, 5, 8, 12, 18-20, and 24 in the instant case based on findings the Court made under 28 U.S.C. § 2254(d) and (e)(2). Closing arguments took place on January 18, 2011 and March 8, 2011. On April 4, 2011, the Supreme Court issued a decision in Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011), which impacts the Court's prior findings and its consideration of those claims. For the reasons discussed below, under either a 28 U.S.C. § 2254(d) review or a de novo review of Petitioner's claims, the Court DENIES habeas relief on Claims 4, 5, 8, 12, 18-20, 24. Additionally, the Court DENIES relief on the previously deferred Claims 2 and 35 and DENIES Claim 75 without prejudice as premature.

I. BACKGROUND

On October 12, 1988, Petitioner was convicted of three counts of first-degree murder in violation of California Penal Code ("CPC") § 187, one count of attempted murder in violation of CPC §§ 664 and 187, and one count of robbery and three counts of attempted robbery in violation of CPC §§ 664 and 211--each count accompanied by findings that he used a firearm in the commission of the crimes in violation of CPC § 12022.5. The jury also found true both special circumstance allegations, multiple murder under CPC § 190.2(a)(3) and murder in the commission of a robbery under CPC § 190.2(a)(17)(1). Petitioner was sentenced to death for each of the three murders on December 12, 1988.

On April 17, 1997, Petitioner filed his automatic appeal with the California Supreme Court. On July 23, 1998, Petitioner filed a habeas petition with the California Supreme Court. On June 8, 2000, the California Supreme Court affirmed Petitioner's conviction and sentence. See People v. Ayala, 23 Cal. 4th 225 (2000). On June 8, 2000, the California Supreme Court also summarily denied the habeas petition without comment. Subsequently, Petitioner filed a Petition for a Writ of Certiorari in the United States Supreme Court, which was denied on March 5, 2001.

On May 3, 2002, Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. Shortly thereafter, the Court dismissed without prejudice certain claims presented in the Petition in order to permit Petitioner to exhaust those claims in state court. The Court stayed the federal proceedings pending the exhaustion of state court remedies.

On September 23, 2002, Petitioner filed a First Amended Petition for a 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 a Writ of Habeas Corpus in this case. He subsequently filed a Second Amended Petition for a Writ of Habeas Corpus, and later, a Third Amended Petition, the operative pleading in this action.*fn2 On February 1, 2008, the Court ordered an evidentiary hearing on Claims 18-20 and 24, and on June 9, 2009, the Court ordered an evidentiary hearing on Claims 4-5, 8 and 12. The hearing was held over twenty court days between March 1, 2010 and November 15, 2010, which included testimony from nearly twenty witnesses and the introduction of nearly 120 exhibits. On December 13, 2010, the parties submitted closing briefs, and on January 18, 2011 and March 8, 2011, the Court heard closing arguments.

II. PROCEDURAL DEFAULT

In the instant case, Claims 2, 4, 5, 8, 12, 18-20, and 24 were denied by the California Supreme Court both on procedural grounds and alternately "on the merits" unaccompanied by a statement of reasoning. In such a situation, the claims can be found to be procedurally defaulted in this Court if the state procedural bars are independent of federal law and adequate to support the judgment. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989).

In an Order dated September 27, 2007, the Court held that under the test set forth in Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), Respondent had not met his "ultimate burden" of proving the adequacy of the procedural rules relied on by the California Supreme Court in the denial of claims 17-24, 27-26 and 68. (See Doc. No. 235 at 10.) Accordingly, the Court declined to conclude that the rules pertaining to the untimeliness and successiveness procedural bars were sufficient to prohibit the consideration of those claims on the merits. (Id.) In the Group Three Order, dated February 1, 2008, the Court granted an evidentiary hearing on Claims 18-20 and 24. (Doc. No. 236.)

In the Group Five Order, dated June 9, 2009, the Court again declined to conclude that the rules pertaining to the untimeliness and sucessiveness procedural bars were sufficient to prohibit the consideration of Claims 1, 3-9, 12-16 and 69 on the merits. (Doc. No. 287 at 7.) The Court also declined to conclude that the rules pertaining to the Dixon bar were sufficient to preclude the consideration of Claims 1, 9, and 69 on the merits. (Id.) The Court went on to grant an evidentiary hearing on Claims 4, 5, 8 and 12, and deferred consideration of Claim 2 until after the conclusion of the evidentiary hearing. (Id. at 43.)

The Supreme Court subsequently issued a decision in Walker v. Martin, 562 U.S. ___, 131 S. Ct. 1120 (2011). In Martin, the Supreme Court held that California's timeliness requirement for state habeas applications is an "adequate" ground to bar federal relief. See 131 S.Ct. at 1131. In light of this decision, it appears that procedural default is again at issue with respect to at least some of Petitioner's claims.

However, in prior briefs, Petitioner generally contended that he was able to establish cause and prejudice for any procedural default, and asserted that the Court's failure to consider those claims on appeal would constitute a miscarriage of justice. (See Group Two Reply [Doc. No. 125] at 46-80.) Because the Court previously declined to impose procedural bars based on a Bennett analysis, the Court has never conducted a determination of whether Petitioner could establish cause and prejudice to excuse the default. While several of the potentially defaulted claims have been denied on the merits in prior orders, the Court held an evidentiary hearing on Claims 4, 5, 8, 12, 18-20, and 24, which may be barred under state procedural default rules regarding timeliness unless Petitioner is able to establish cause and prejudice for the default, or demonstrate that the Court's failure to adjudicate the claims on the merits would result in a fundamental miscarriage of justice. The Court additionally notes that a determination of whether Petitioner could overcome the procedural default necessarily involves an examination of the merits of these claims.

Upon consideration, the Court declines to engage in the procedural default analysis at this stage of the proceedings, as established precedent in this Circuit instructs that a court's decision on the issue of procedural default is to be informed by furthering "the interests of comity, federalism, and judicial efficiency." Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Where it is clear, as it is in the instant case, that deciding the merits of a claim will prove to be less complicated and time-consuming than adjudicating the issue of procedural default, a court may exercise discretion in its management of the case to reject the claims on their merits and decline to engage in a lengthy and involved analysis of procedural default. See Batchelor v. Cupp, 693 F.2d 859, 863-64 (9th Cir. 1982); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same."), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

III. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a federal court may not grant habeas relief to a state prisoner with respect to any claim which has been adjudicated on the merits in the state court unless the state court adjudication "resulted in a decision that was contrary to, or an unreasonable application of, clearly established Federal law," or "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) (West 2006).While the California Supreme Court denied Claims 2, 4, 5, 8, 12 ,18-20, 24, and 35on the merits, the court did not provide any reasoning for the denial on the merits of those claims (with the exception of that portion of Claim 18 alleging that trial counsel were ineffective for failing to call Richard Savocchio as a witness, which was raised on direct appeal, and denied in a reasoned opinion).

Because there is no lower court decision on the merits of those claims, Petitioner "can satisfy the 'unreasonable application' prong of § 2254(d)(1) only by showing that 'there was no reasonable basis' for the California Supreme Court's decision." Pinholster, 131 S.Ct. at 1402; Richter, 131 S.Ct. at 786. "Under § 2254(d), a habeas court must determine what argument or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id.

If Petitioner can satisfy § 2254(d), or if § 2254(d) does not apply, the Court must conduct a de novo review to determine whether Petitioner has established a federal constitutional violation. Fry v. Pliler, 551 U.S. 112, 119-22 (2007) (holding that § 2254(d) "sets forth a precondition to the grant of habeas relief . . ., not an entitlement to it."); see also Franz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc) (holding that after concluding that a state court decision is objectively unreasonable under § 2254(d), a federal habeas court must "review the substantive constitutionality of the state custody de novo" in order to determine whether the petitioner suffered a constitutional violation entitling him or her to habeas relief.) In addition, "state court judgments of conviction and sentence carry a presumption of finality and legality and may be set aside only when a state prisoner carries his burden of proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution. Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc).

A. The Impact of Pinholster and Richter on this Court's Prior Orders

The United States Supreme Court recently held that, for claims previously decided on the merits by a state court, a federal habeas court's "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. 1388, 1398. The Supreme Court also noted that "[a]lthough state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so." Id. at 1401.

Moreover, with respect to AEDPA review of an ineffective assistance of counsel claim, the Supreme Court recently reaffirmed that "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Richter, 131 S. Ct. 770, 785, citing Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court cautioned that "[f]ederal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.

In granting an evidentiary hearing in the February 1, 2008 and June 9, 2009 Orders, this Court relied in part on evidence submitted in support of the Group Three Claims, including the Supplemental Hart declaration, the Belter declaration, and the Ritt declaration. These materials were not previously presented to the state court, which had before it the Exhaustion Petition/First Amended Petition ("Exh. Pet." or "FAP") and the original Hart Declaration dated September 17, 2002 ("Hart Decl." or "Ex. 1 to Exh. Pet."). Because Pinholster was decided after the completion of the evidentiary hearing in this case and well after the issuance of the Group Three and Group Five Orders, and because the Court considered additional evidence not before the state court in issuing those Orders, the Court will re-evaluate these claims in two respects.

In an abundance of caution, the Court will proceed to: (1) re-address these claims under section 2254(d) (including Claim 18, which the Court previously found involved an unreasonable application of Strickland), based only upon the evidence presented to the California Supreme Court (pursuant to both Pinholster and Richter), and (2) alternately address these claims by performing a de novo review under Strickland, considering all of the evidence adduced at the evidentiary hearing. See Stokley v. Ryan, 659 F.3d 802, 809 (9th Cir. 2011) (in which the Ninth Circuit, "[r]ecognizing that Pinholster dramatically changed the aperture for consideration of new evidence, and further recognizing that this is a capital case, we believe it prudent to consider alternate avenues for resolution," adjudicated a petitioner's claim by alternately considering the resolution of the claim "if Pinholster applies" as well as "if Pinholster does not apply.")

B. Ineffective Assistance of Counsel

The bulk of the claims at issue at the evidentiary hearing are claims alleging ineffective assistance of trial counsel. To establish ineffective assistance of counsel, a 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, 466 U.S. at 687.

To establish deficient performance, the petitioner must demonstrate that the representation he received "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Moreover, due to the difficulties inherent in evaluating the contested behavior 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. Thus, a 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. In addition, 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).

IV. DISCUSSION

As noted above, the Court held an evidentiary hearing on Claims 4, 5, 8, 12, 18-20, and 24. In addition, the Court previously deferred consideration of Claims 2 and 35, as the resolution of those claims necessarily depended on the adjudication of the remainder of the claims in the Petition, and previously denied Claim 75 as premature. The Court will now consider each of these claims on the merits.

A. Evidentiary Hearing Claims

1. Claims 18 and 19

In the Group Three Order, the Court granted an evidentiary hearing on Claim 18 with respect to trial counsel's failure to call Richard Savocchio, who purportedly could have testified at trial that Juan Meza, an important prosecution witness, told him that he did not know anything about the murders and was testifying in order to get his custodial time reduced. The Court concluded that: (1) "the California Supreme Court's decision was an unreasonable application of Strickland" and (2) that although Savoccio's credibility could have been challenged with his lies about EME, his testimony, coupled with that of Raul Garcia (discussed in Claim 19), would have been powerful impeachment evidence against Meza.

The Court also granted an evidentiary hearing on Claim 19, in which Petitioner alleged that trial counsel was ineffective for failing to offer the testimony of Raul Garcia, who was willing to testify that Meza tried to get him involved in fabricating a story against Petitioner Ronaldo Ayala, and that Meza admitted he did not know anything about the murders. The Court found that this deficiency, coupled with other identified deficiencies, amounted to a colorable claim of prejudice.

A. Application of § 2254(d) under Pinholster and Richter

In adjudicating Claim 18, this Court relied upon an August 11, 1988 interview of Savocchio by Papenhausen Investigations that was never presented to the state court. (See Group Three Order [Doc. No. 236] at 29, citing Ex. O to Belter Decl.) In that interview, Savocchio told investigator Jim Braxtan that he had known Meza since the 1970's and that Meza admitted to him that he was lying about the Ayalas' involvement in the murders because "they're going down anyways" and he planned to "get something out of this." (Ex. O.) Savocchio told Braxtan that he did not have any involvement in gangs. (Id.) While this information does not appear to add anything substantive that was not already before the state court, in the form of Savocchio's testimony at the 402 hearing before the trial court, in an abundance of caution, the Court will not consider this document in re-evaluating Claim 18, as it was not presented to the state court.

Based only on the evidence available to the state court, this Court again concludes that the California Supreme Court's rejection of Claim 18 involved an unreasonable application of Strickland, as the state court's reasons for rejecting this claim (in which the state court found counsel's actions reasonable, stating that declining to call Savocchio was necessary to avoid mention of EME or potentially connect Petitioner to EME) still cannot be reconciled with the state court's rejection of Petitioner's challenge to the trial court's in limine ruling on the gang issue (in which the state court reasoned that impeachment of Savocchio would not link Petitioner to EME). (See Doc. No. 236 at 29-30.) The Court did not conclude, and did not intend to suggest in the Group Three Order, that the Strickland standard had also been satisfied. Rather, the Court merely held that Petitioner had satisfied § 2254(d) and that the Court was not precluded from holding a federal evidentiary hearing under § 2254(e)(2), based on which record the Court would decide the merits. Fry, 551 U.S. at 119-22 (holding that § 2254(d) "sets forth a precondition to the grant of habeas relief . . ., not an entitlement to it."); Franz, 533 F.3d at 735-36 (holding that after concluding that a state court decision is objectively unreasonable under § 2254(d), a federal habeas court must "review the substantive constitutionality of the state custody de novo" in order to determine whether the petitioner suffered a constitutional violation entitling him or her to habeas relief.) The Court's ultimate determination with respect to Strickland is addressed below.

In granting an evidentiary hearing on Claim 19, this Court relied on Ex. J to the Ritt Declaration, which is the interview defense investigator Brenda Watton conducted with Raul Garcia in August 1988 (also known as EH Ex. 1). Petitioner alleged that "Meza admitted to [Garcia] that he did not know anything about the murders and just wanted to get his custodial time reduced" and that Meza "tried to get Garcia involved in fabricating a story implicating Ronaldo and proposed various stories regarding how they had inside information that Ronaldo had committed the murders." (Doc. No. 236 at 45, citing to Ex. J.) The Court concluded that "[t]hese facts, if proven to be true, support a prima facie case of deficient performance by trial counsel," which, in conjunction with other potential deficiencies, raised a colorable claim of prejudice. (Id. at 45-46.)

Under Pinholster, the Court can only consider the evidence before the state court. The state court was presented with generalized factual allegations asserting that Meza had informed several individuals that he had concocted his testimony in order to obtain a reduction in jail time, but Petitioner did not present the California Supreme Court with the name Raul Garcia or the specifics of his statement. In fact, Garcia was not even named in the federal habeas case until the filing of the Group Three Briefs in 2005. In the First Amended Petition and Second Amended Petition, Petitioner alleged that:

Counsel failed to impeach prosecution witness Juan Meza with, inter alia, the following evidence and/or testimony available to them . . . Meza had confessed to numerous witnesses, including Richard Sovacchio [sic] among many others - known to Petitioner's counsel - that he had no idea whether Petitioner had actually participated in the 43rd street murders and that he had put together his story with Detective Chacon in order to arrange for an early release from prison. (FAP at 101-02; SAP at 102-03.)

In state court, Petitioner alleged only (supported by, and parroting language contained in, the original Hart declaration) that "Meza had confessed to numerous witnesses, including Richard Sovacchio [sic] among many others - known to Petitioner's counsel - that he had no idea whether Petitioner had actually participated in the 43rd street murders and that he had put together his story with Detective Chacon in order to arrange for an early release from prison." (See Hart Decl. at ¶ 37; Exh. Pet. ¶ 263.)

Therefore, based only on the conclusory and unsupported evidence available to the state court, the Court cannot conclude that the California Supreme Court's rejection of Claim 19 was contrary to, or an unreasonable application of, Strickland. Given the lack of specificity or evidentiary support in the state record, Petitioner fails to demonstrate that the state court's rejection of the claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. 786-87. As set forth below, even if counsel's failure to present evidence in support of these allegations constituted deficient performance, or even if the state court's failure to develop the record was objectively unreasonable, and Petitioner could satisfy § 2254(d), he has still failed to demonstrate a federal constitutional violation under Strickland.

B. Evidence Adduced at the Evidentiary Hearing

Richard Savocchio stated that Meza admitted to him that he was lying about the Ayalas' involvement in the murders, stating that Meza informed him he "don't know nothing about it but I'm getting some time off." (EHT 90.) Savocchio denied gang affiliation, but prison records revealed "EME problems" in the form of a drug debt. Savocchio testified at a 402 hearing outside the presence of the jury at which he admitted lying about the gang problems in order to secure protective custody in prison. When the trial judge held that the prosecution could impeach Savocchio with the past lies, the defense decided not to call Savocchio to testify. In her evidentiary hearing testimony, Ms. Semel, Petitioner's lead trial counsel, conceded that she was not only fearful of potential impeachment regarding the EME debt, but also what she considered to be the possibility of "opening the door" to other information about EME or prison gangs. (EHT 367.)

In August 1988, Raul Garcia told defense investigator Brenda Watton that he had been Meza's cellmate, and was approached by Meza and asked to participate in creating testimony against the Ayalas in order to get a reduction in prison time. Watton stated that she found Garcia credible, and relayed this belief to Petitioner's counsel. Garcia was not called as a witness at trial. Neither Semel nor Boyce recall the specific reason for failing to call Garcia, but Semel generally recalled that the fear of introducing gang evidence was a likely reason. Garcia was a member of the Texas Syndicate. Ms. Semel authored a pre-trial memo in which she indicated that "reading between the lines," she had concerns about Garcia's relationship with Ayala. (EHT Ex. 74.) Moreover, Semel conceded that as she did not recall reviewing Garcia's CDC packet, she would have had concerns stemming from the fact that she did not know everything potentially damaging that could be used to impeach him.

Trial counsel Semel stated that "I think it's fair to say it was the defense team's belief that the intent of the prosecution was to try this case based on who the defendants were or were alleged to be, rather than on what they were alleged to have done." (EHT 356.) She explained that the defense chose to pursue a strategy of "exclusion of any references to gang member affiliation, membership, and to try the case as best as possible based on the evidence of what occurred, with regard to the homicides and attempted murder, rather than, for lack of a better word, guilt by association." (EHT 362-63.) While Ms. Semel did not recall witness by witness reasons for not calling individuals, she stated that: "The general recollection is that it was - - that it would have opened the door to the very thing that we had been attempting to keep out, which is the prison gang affiliation/association becoming an explicit and overriding factor in the trial." (EHT 380.) Similarly, Mr. Boyce, Petitioner's second chair trial counsel, did not specifically recall why Richard Savocchio or Raul Garcia were not called as witnesses. (EHT 232.)

Semel stated that "it's my recollection that the court ruled that if Mr. Savocchio testified that he would be subject to cross examination about his contacts with, knowledge of, involvement in statements about the EME or the Mexican Mafia." (EHT 350.) Co-counsel Boyce stated that, "As I recall, Judge Jones ruled that the EME affiliation would be referred to as group or association. I can't recall now what he was going to permit - - what term he was going to permit to be used in place of EME or Mexican Mafia gang membership." (EHT 215.)

With respect to Raul Garcia, Brenda Watton interviewed him in 1988 and recalled believing that he was a credible witness. She recalled that she discussed her belief with trial counsel. (EHT 1262, 1267, 1275, 1279.) Meanwhile, in an August 19, 1988 memo, Semel wrote that Garcia "claims he was approached by Meza to make up a story about the killings. He knows Ronnie well. My reading between the lines is that this is possible B.S. and he is very impeachable re relationship with Ronnie." (EH Ex. 125.) Semel testified that she could not recall if she ever obtained Garcia's CDC packet. (EHT 376.)

Strickland expert Mark Overland stated that counsel's performance was deficient in: (1) failing to obtain prison records themselves rather than allowing the prosecution to procure the records and (2) failing to obtain a ruling from the trial court on the extent of impeachment that would be allowed for individual witnesses prior to deciding whether to call those witnesses. (EHT 2160.) He stated that California state decisional law, under Cardenas*fn3 and Munoz,*fn4 would have limited impeachment to terms such as "groups" and thus the failure to call witnesses for fear of this impeachment was below the standard of care.

Overland also stated that the impeachment of Savocchio could have been limited to "him owing a debt to a group associated with Mr. Ayala." (EHT 2158.) However, Overland acknowledged that he did not know which witnesses defense could, did, or did not get CDC packets for. (EHT 2172-74.) He also acknowledged that outside knowledge (such as information Detective Chacon may have possessed) was a defense concern, and agreed that concern was reasonable. (EHT 2181-82.)

C. De Novo Review

Assuming Petitioner could satisfy § 2254(d) and the Court could consider all of the evidence presented to this Court and/or adduced at the evidentiary hearing with respect to Claims 18 and 19, Petitioner fails to demonstrate that counsel's decision not to impeach Juan Meza with the testimony of Richard Savocchio and Raul Garcia constituted prejudicially deficient performance.

With respect to Mr. Overland's assertion that counsel's failure to obtain prison records and witness-specific rulings prior to making a determination on whether to call these witnesses constituted deficient performance, the record shows, at least with respect to Savocchio, that defense counsel was aware of the contents of prison records that reflected his troubles with EME. (RT 15475) (During questioning by the prosecutor, Savocchio acknowledged that he and defense counsel Semel had previously discussed entries in his prison records pertaining to his "EME problem.") Moreover, counsel had obtained a ruling from the trial court on the impeachment that would have been allowed with respect to Savocchio. (See RT 15488.) After Semel declined to call Savocchio, the trial court later expanded upon the basis for its ruling, offering specific indications as to what sort of impeachment would be allowed. (RT 15488) (court's initial ruling and Semel's indication that she would not call Savocchio as a witness); (RT 15522-23) (court's clarification). Therefore, the record clearly reflects that Semel's decision not to call Savocchio was made immediately after the trial court's initial ruling on allowable impeachment.

Semel stated that "it's my recollection that the court ruled that if Mr. Savocchio testified that he would be subject to cross examination about his contacts with, knowledge of, involvement in statements about the EME or the Mexican Mafia." (EHT 350.) The trial transcripts confirm this, indicating that the trial court ruled as follows: "The purpose of the Court is certainly not to create a shield to stop impeachment of witnesses. Mr. Savocchio quite candidly acknowledges the accuracy of the information. He is a person that the jury needs to judge. If he takes the stand, that area will be opened." (RT 15488.) The trial court's later clarification indicated that:

"[W]ith reference to Mr. Richard Ortiz Savocchio, the Court indicated that his answers to Mr. Woodward's inquiry in terms of information relayed to the prison officials verified the fact that he in fact gave those answers. It seems to me that in light of the other information that has come in front of this Court in terms of gang affiliation or possible gang affiliation of Mr. Ayala, then certainly in terms of him verifying the information, that opens up the spector [sic] of bias, interest or other motive as a propellant for the testimony, if you will; and it was certainly with that in mind, then, that the Court felt that his testimony would certainly open up to appropriate inquiry by the People the issue of whether or not he was testifying out of bias, interest or other motive. . ." (RT 15522-23.) Therefore, even under Mr. Overland's analysis of the performance prong, it appears that counsel's actions were informed and strategic with respect to Savocchio, as the defense procured his records and obtained a ruling from the trial court on the extent of allowable impeachment.

With respect to Raul Garcia, the record does not reflect that trial counsel obtained Garcia's records, and Ms. Semel stated at the evidentiary hearing that she could not recall if she ever obtained Garcia's CDC packet. (EHT 376.) It also appears that trial counsel did not obtain a ruling, specific to Raul Garcia, on the extent of impeachment that would have been allowed.

Despite counsel's apparent failure to obtain Garcia's prison records or a ruling on allowable impeachment, evidence exists indicating that Semel harbored doubts about his credibility and, aside from potential gang impeachment, felt Garcia was nevertheless impeachable due to his close relationship with Petitioner. While investigator Brenda Watton interviewed Garcia in 1988, found him credible, and communicated this to trial counsel, the Court was also provided with Semel's notes, made contemporaneous to the trial, including her thoughts on calling Raul Garcia. Ms. Semel stated that Garcia's account was "possible B.S." and that Garcia was impeachable due to his "relationship with Ronnie." (EH Ex. 125.)

In any event, even if the Court were to agree that trial counsels' performance were deficient for failing to call Savocchio and Garcia, in order to warrant relief, Petitioner must also demonstrate a "reasonable probability" that the result of the proceeding would have been different absent trial counsel's error. See Strickland, 466 U.S. at 689. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. at 694; Luna v. Cambra, 306 F.3d 954, 966 (9th Cir. 2002) (prejudice must be considered in light of the strength of the prosecution's case), as amended, 311 F.3d 928. In this case, assuming sanitization of gang references (to "group" or "association" pursuant to Cardenas/Munoz), the Court concludes that Petitioner was not prejudiced by counsel's failure to call these witnesses.

It is undisputed that Meza was an important witness against Petitioner. Trial counsel acknowledged a focus of their defense was the impeachment of Meza and Castillo. (See EHT 205, 329.) The testimony of Garcia and Savocchio, calling into question the veracity of Meza's statement and presenting a motive for Meza's testimony against Petitioner, could have provided an additional avenue of impeachment against Meza.

However, while Savocchio stated that he did not know Petitioner but knew Meza,*fn5 Savocchio acknowledged that he had only spoken to Meza approximately six times between 1974 and 1988. (EHT 86-88.) Regardless, when Meza and Savocchio were incarcerated in the same institution, Savocchio approached Meza on the prison yard, explaining, "I heard rumors about [Meza] making statements on some people, and he said yes. And basically he said yes and that he didn't know anything about the case and he was doing what the SSU wanted him to do." (EHT 88.)

Despite the mere handful of contacts between the two individuals over the prior fifteen years, Savocchio stated that he and Meza had a conversation lasting perhaps a minute or less, as follows:

I think I told him that people were talking about him, that he was telling on some people. [¶] And he said, you know, I can't remember the exact words, but something to 'Yeah, and I don't know nothing about it, but I'm getting some time off,' and for some reason, three years rings a bell in my head. I don't know if he said that or if I heard that later, but he said something about getting the deal and that he didn't know anything about the case and that they were going down anyways. (EHT 90.)

Even if Savocchio had testified before the jury as to these alleged statements by Meza, Savocchio could have been impeached with past statements he made to prison officials, which he characterized as lies at the 402 hearing (see RT 15476-79), but now states were actually the truth (see EHT 108, 132-37.) At the evidentiary hearing before this Court, Savocchio now states that he had been truthful when he told prison authorities that he was having problems with EME. (EHT 108-09.) Savocchio acknowledged concerns about David Gallegos, an EME member and brother of Nick Gallegos, who Savocchio had taken $11,000 from in a "drug burn." (EHT 109-10.)

Under Cardenas/Munoz, it appears that Savocchio could have ultimately been impeached with the fact that he had problems with, or a debt to, a group of individuals associated with Petitioner, and that he was fearful. He could also have been questioned about whether he was testifying out of bias, interest, or another motive, such as fear. Moreover, at the 402 hearing, Savocchio admitted that he had previously lied to prison officials about fears he had about a group, and cross-examination on this point alone would have damaged Savocchio's credibility. Ultimately, whether or not this impeachment would have linked Petitioner with EME or the "group," it would have opened the door to questions about Savocchio's motivation for testifying, whether out of fear or to gain favor.

In addition to Savocchio's prior lies, his account lacked credibility, and the prosecutor could have effectively attacked the reasonableness of his account- that he approached Meza in the middle of a prison yard, a man he had only spoken to perhaps six times in nearly fifteen years, and almost without prompting, Meza admitted that he was giving false trial testimony against several individuals who were charged with a triple homicide, in order to obtain a sentence reduction. The evidence adduced at the evidentiary hearing did nothing to undermine the conclusion that trial counsel were not ineffective in failing to call Richard Savocchio to testify.

Similarly, Raul Garcia, who grew up with both Ronaldo Ayala and Meza, states that he was incarcerated with Meza in South Bay in 1985, and defended Meza against some guys who planned to assault him. (EHT 957-60.) Garcia contends that Meza asked Garcia to join him in making up testimony against the Ayalas for a reduction in time, showing Garcia a newspaper and stating that they could get out if they wanted, if they had some kind of knowledge. (EHT 963.) Garcia stated: "He goes, like, we can just say we were there but we didn't do anything, something like that." (EHT 964.) Garcia states that Meza proposed several different stories, including that they planned the robbery at Garcia's home, or that they planned it at a meeting at a bar. (EHT 967.) Garcia claims that Meza admitted to Garcia that he did not know anything about the crime, but said it was an easy way to get a sentence reduction. (RT 969-70.)

As stated previously, Garcia could have been impeached with the fact that he, per Semel's pre-trial memo, "knows Ronnie well," and was "very impeachable re relationship with Ronnie." (EH Ex. 125.) Garcia was also potentially impeachable through his membership in a group affiliated with Petitioner, as evidentiary hearing testimony offered some indication, through Meza, that the Texas Syndicate may have been allied with EME. (See EHT 1993-94.) In the Watton interview, Garcia acknowledged that his prison jacket classified him as Texas Syndicate. (EH Ex. 74.) Garcia stated that he "came from Hawaii for this trial and they told me I wasn't needed." (EHT 965.)*fn6 It appears that Garcia could have been impeached with his motive for testifying, given that Garcia acknowledged traveling from Hawaii sometime in 1988 or 1989, at his own expense, specifically for the purpose of testifying at his friend Ronaldo Ayala's trial. (See EHT 976; 992-93.)

Garcia also acknowledged that, at the time of the evidentiary hearing, he was classified as an EME associate, but stated that it was a recent classification, and attributed it to counsel contacting him about the instant habeas case. (EHT 1003-07; 1018). Additionally, Garcia stated that the conversation with Meza occurred in 1985, yet he only first spoke to the defense in March 1988. (EHT 1021.)

Garcia also would have been impeached on the timing of his account. As Respondent persuasively notes, Garcia stated that his contact with Meza occurred in late 1985, after Garcia's transfer to South Bay on November 19, 1985, with Meza wanting Garcia to assist him in making up a story to tell the police about the Ayala's involvement in the crimes in order to reduce their time in custody. (EH Ex. 74.) Meanwhile, Chacon testified that Meza contacted him in October 1985, wanting to have his parole violated, which would keep Meza in custody longer, in order to avoid carrying out a contract at Hector Ayala's request to kill Pete Castillo, the only prosecution eyewitness, who was out of custody at the time. (EHT 1556-57, 1646-50.) Chacon made notes of this conversation, which took place on October 14, 1985. (EHT 1557, EHT Ex. 1.) Therefore, Garcia's testimony that Meza wanted to secure an earlier release from custody conflicts with Detective Chacon's conversation with Meza from a month earlier. At the evidentiary hearing before this Court, Meza denied receiving a note from Hector Ayala asking him to kill Pete Castillo. (EHT 1991.) The Court finds Chacon to be a credible witness, and does not find Raul Garcia credible.

In sum, as noted above, Savocchio and Garcia each had credibility problems of their own. Savocchio admitted to prior lies about his problems with, and connection to, EME. Even were he questioned pursuant to Cardenas, Savocchio's testimony opened the door to questions about his motivation for testifying, whether out of fear or to gain favor, with people associated with Petitioner. The prior lies, and connection to Petitioner, would have damaged Savocchio's credibility, and could have had a negative reflection on Petitioner as well. Garcia had a strong connection to Petitioner, and a potential connection to a "group," but a larger concern was the believability of his statement. Semel herself wrote that Garcia's story was "possible B.S." Moreover, as noted above, during the same time frame that Meza was allegedly concocting this story about Petitioner (fall 1985) in order to obtain a sentence reduction, Detective Chacon testified that Meza had contacted him about ways to remain in custody longer to avoid carrying out a hit on Pete Castillo.

While Petitioner argues that sanitization was a viable strategy, that "the trial court's ruling was limited to impeaching Mr. Savocchio with alleged lies to prison authorities," and that "under Cardenas and Munoz, the prosecution could not have brought in a parade of horribles," (see Pet. Closing at 51), the record reflects that sanitization was explicitly used with the testimony of Mendoza Lopez, in which the term "group" was used. However, even before Mendoza Lopez took the stand, Ms. Semel recalled that "despite the use of soft language to describe gangs . . . despite the fact that it was not explicit . . . as the trial progressed, it became increasingly clear that the jury had to know, or believe, that Mr. Ayala had some affiliation with some sinister organization, whether they could identify it with the Mexican Mafia or not." (EHT 442.) Therefore, the viability of the sanitization strategy was not, as trial counsel acknowledges, without pitfalls.*fn7

Finally, as Respondent correctly points out, even were Savocchio and Garcia called as impeachment witnesses, the "jury was unlikely to completely discount Meza's testimony," which was corroborated in other respects. Meza accurately described that the weapons used included both a .22 and .38 caliber gun, and correctly stated that the Ayalas planned to take the robbery proceeds to "Topo" in Los Angeles. The Ayalas were later arrested at the Los Angeles area home of Mrs. Gutierrez, the mother of Benjamin "Topo" Peters. Moreover, Pete Castillo, the only eyewitness to the crimes, identified Petitioner as one of the killers, and Petitioner's own fingerprints were found on beer cans recovered from the crime scene.

Thus, while Savocchio and Garcia could have testified to impeach Meza's credibility, it is clear that each suffered from serious credibility issues of their own. Moreover, it is clear that trial counsel's contemporaneous notes confirm that Garcia had problematic ties to Petitioner, and the trial record demonstrates that had Savocchio been called, his past lies and fear of a "group" would have been revealed to the jury. In light of the evidence introduced at the hearing, the Court cannot conclude that trial counsel's decision not to call Savocchio and Garcia constituted prejudicially deficient performance. Claims 18 and 19 fail on the merits under a de novo review.

2. Claim 20

The Court granted an evidentiary hearing with respect to Petitioner's contention that trial counsel failed to impeach Pete Castillo with testimony indicating that he solicited Juan Mendez to kill victim Zamora in the months prior to the murders. In the Group Three Order, the Court concluded:

Part of the defense strategy was urging the jury to suspect that Castillo was lying to cover up his own involvement in the deaths. If there was evidence that Castillo asked Mendez to kill Zamora, trial counsel should have cross-examined Castillo regarding his solicitation of the hit and should have called Mendez as a witness if Castillo denied it. (Doc. No. 236 at 48.)

While the Court specifically granted an evidentiary hearing only as to Mendez, the Court also acknowledged that Petitioner alleged trial counsel failed to impeach Castillo with the information that he "had, prior to the murders, solicited two different witnesses to kill victim Zamora." (Id. at 48 n.3) (emphasis added.)

A. Application of § 2254(d) under Pinholster and Richter

In issuing the Group Three Order, which included Claim 20, the Court considered several exhibits never presented to the California Supreme Court. In granting an evidentiary hearing on Claim 20, the Court specifically referred to the Supplemental Hart Declaration, in which Hart stated that he had interviewed Mendez, who informed him that Castillo had approached him to kill "Marco." (Id. at 48.)

The claim and supporting evidence presented to the state court differed significantly. For instance, Johnny Mendez was never identified by name in the exhaustion petition or in the original Hart declaration. The original Hart Declaration, which was presented to the California Supreme Court, simply stated: "Pete Castillo was also an important prosecution witness. I believe counsel failed to impeach prosecution witness Pedro Castillo with, inter alia, the following evidence and/or testimony available to them . . . ...


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