Ayala v. Chappell

          Argued and Submitted December 10, 2015 San Francisco, California

         Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, Chief District Judge, Presiding D.C. No. 3:01-cv-00741-BTM-MDD

          D. Jay Ritt (argued), Ritt, Tai, Thvedt & Hodges, Pasadena, California; Michael R. Belter (argued), Law Offices of Michael R. Belter, Pasadena, California; for Petitioner-Appellant.

          Michael T. Murphy (argued) and Robin Urbanski, Deputy Attorneys General; Holly D. Wilkins, Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

          Before: Alex Kozinski, Jay S. Bybee, and Morgan Christen, Circuit Judges.

         SUMMARY^[*]

         Habeas Corpus / Death Penalty

         The panel affirmed the district court's denial of California state prisoner Reynaldo Medrano Ayala's 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and death sentence for triple homicide.

         Ayala argued that his defense team was constitutionally ineffective because his lawyers failed to present evidence that would have called into question the credibility of two key prosecution witnesses. The panel agreed with the district court that the California Supreme Court reasonably deferred to defense counsel's choices regarding exclusion of gang affiliation evidence. The panel held that defense counsel's initial decision not to present an inmate's testimony to impeach prosecution witness Juan Manuel Meza did not fall below an objective standard of reasonableness. The panel also agreed with the district court's analysis of counsel's decision not to reopen the defense case after witness Rafael Mendoza Lopez ("Rafa") recanted his exonerating testimony. The panel explained that in light of the risks and difficulties presented by pivoting away from a "no-gang" strategy, the decision not to make such a dramatic transition did not fall below an objectively reasonable standard of care. The panel held that the California Supreme Court likewise did not unreasonably deny Ayala's ineffective-assistance claims as they relate to calling "other witnesses, " whom Ayala admitted counsel believed were gang-affiliated. The panel held that the California Supreme Court reasonably rejected Ayala's claim that counsel failed to independently investigate the gang affiliation of numerous witnesses before deciding not to call them. The panel explained that even if it reviewed this claim de novo, Ayala would not be eligible for relief. Agreeing with the district court that evidence Ayala first presented in the federal proceedings does not strengthen his ineffective-assistance claims, the panel declined to stay his federal case so that he can seek reconsideration of those claims in the California Supreme Court. The panel held that it was not unreasonable for the California Supreme Court to resolve his ineffective-assistance claims without first granting him an evidentiary hearing.

         The panel denied on the merits an uncertified and unexhausted claim under Brady v. Maryland that the state failed to disclose impeachment evidence about Meza, and denied as moot Ayala's request for a certificate of appealability as to that claim. Because Ayala did not establish that the state suppressed the information that underpins his certified Brady claims relating to Meza, the panel held that the state court's summary denial of them was not unreasonable. The panel held that the California Supreme Court's application of Brady, in summarily denying Ayala's claim that the state concealed evidence that Detective Carlos Chacon had a longstanding bias against Ayala and his brother, was reasonable.

         The panel held that the California Supreme Court's rejection of Ayala's witness intimidation claim – that Rafa recanted his exonerating testimony as a result of threats and intimidation by Detective Chacon – was not contrary to or an unreasonable application of Webb v. Texas. The panel held that the California Supreme Court did not misapply federal law when it rejected Ayala's claim that the state violated Napue v. Illinois by failing to correct Rafa's testimony that Detective Chacon did not threaten him.

         The panel held that the California Supreme Court's rejection of Ayala's claim that the trial court committed constitutional error when it refused to strike a juror for cause was not contrary to or an unreasonable application of Morgan v. Illinois. The panel could not say that the California Supreme Court's denial of Ayala's claim that the trial court violated his constitutional right to present a defense when it excluded under California hearsay rules the exculpatory statements of a deceased witness was an unreasonable application of Chambers v. Mississippi. The panel held that the California Supreme Court's rejection of Ayala's claim of prosecutorial misconduct during closing argument was not an unreasonable application of Darden v. Wainwright, and that the rejection of Ayala's related ineffective-assistance claim was likewise not unreasonable. The panel held that Ayala's inability to show prejudice is fatal to his due-process challenge to the penalty-phase admission of evidence that nearly ten years before trial Ayala murdered a fellow inmate.

         The panel held that Ayala has not suffered the prejudice that would rise to the level of a constitutional violation based on cumulative error.

         The panel held that Ayala does not meet the high threshold of proof that would be required to support a freestanding claim, if cognizable on federal habeas review, of actual innocence.

          OPINION

          CHRISTEN, Circuit Judge:

         Reynaldo Medrano Ayala appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Ayala was convicted of triple homicide in 1988, and he is currently on death row in California. He argues that his trial was fundamentally unfair, and federal habeas relief is therefore warranted, primarily because his lawyer unreasonably failed to impeach the prosecution's key witnesses with evidence that would have undermined their credibility. Ayala also claims that the State concealed evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), that a San Diego police officer threatened and intimidated witnesses, and that the trial court committed several constitutional errors. Because we conclude the California Supreme Court's resolution of Ayala's claims was not contrary to clearly established federal law, we affirm the district court's denial of the petition for writ of habeas corpus.^[1]

         BACKGROUND

         I. Facts

         On April 26, 1985, Jose Rositas, Marcos Zamora, and Ernesto Dominguez Mendez ("Dominguez") were murdered execution-style in an auto body shop located on 43rd Street in San Diego, California.^[2] People v. Ayala, 1 P.3d 3, 11–12 (Cal. 2000). Pedro "Pete" Castillo was shot at the same time, but not fatally. He claimed to have been an intended fourth victim who got away. The 43rd Street body shop was a hub for drug distribution, and Dominguez-the owner of the shop-was an active heroin distributor who may have had connections with heroin suppliers in Mexico. According to Castillo, the 43rd Street murders were a drug robbery gone wrong.

         The murders occurred around 8 p.m. Within a few hours, San Diego gang intelligence detective Carlos Chacon urged his counterparts in the San Diego homicide unit to investigate brothers Hector and Reynaldo Ayala and their associate Juan Manuel Meza as potential suspects.^[3] Two days later, Pete Castillo identified Ayala, Hector, and Joe Moreno as the perpetrators of the triple homicide. Id. at 14.

         Ayala was arrested in June of 1985 and charged with three counts of murder, one count of attempted murder, one count of robbery, and three counts of attempted robbery. See Cal. Penal Code §§ 187 (murder), 664 (attempt), 211 (robbery). Hector and Joe Moreno were arrested and charged around the same time.

         In February 1987, San Diego police officers arrested Juan Manuel Meza for drug distribution. Meza pleaded guilty to possession of cocaine several weeks after his arrest and entered into a plea agreement that provided he would serve four years in prison. Detective Chacon, who knew Meza from childhood, visited Meza in jail several times during the spring of 1987. Meza admitted to Chacon that he helped the Ayalas plan the 43rd Street murders, even though he ultimately did not participate. Meza met with the district attorneys involved in Ayala's case in April or May 1987 and agreed to testify against Ayala, Hector, and Moreno. In the summer of 1987, a district attorney appeared at Meza's sentencing on the drug possession charge. The D.A. asked the judge to sentence Meza pursuant to Cal. Penal Code § 1170(d) so he could "recall the sentence and commitment previously ordered and resentence the defendant" if Meza testified in court proceedings relating to the 43rd Street murders. Cal. Penal Code § 1170(d)(1).

         A. Gang affiliation evidence

         Ayala and Hector were believed to be members of the Mexican Mafia-or EME-a prison gang with an active street program that operated throughout southern California, but all parties agreed that the 43rd Street murders were not gang related. Ayala's lawyers filed a pretrial motion in limine in which they argued that mention of the Mexican Mafia or Ayala's gang affiliation at trial would be unduly prejudicial and of questionable relevance to the case.

         The state trial judge was initially disinclined to rule on the motion. He agreed with the prosecution that it would be difficult to rule on the admissibility of gang affiliation evidence before hearing each witness's testimony. The defense team pursued this pre-trial ruling for months, persistently arguing that, without a ruling, they would not be able to "strategize [and] determine what course of action to take with regard to jury selection and cross-examination." The judge ultimately relented and ruled as follows:

[G]ang affiliation has nothing to do with motive in terms of this particular case, so there will be no testimony concerning motive dealing with the Mexican Mafia. We know that that's not the case.

Gang affiliation has nothing to do with the identity issue that's presented, so there will be no Mexican Mafia testimony concerning gang affiliation.

. . .

Let me indicate this: That with reference to credibility, the court's going to require a 403 hearing if, in fact, we're going to have to get into this, the people see that after cross- examination. We'll deal with that on each witness.

If, in fact, the people perceive a need to deal with the credibility issue, then I'm going to do it at side-bar before it goes in front of the jury.

I'm going to further request that the people admonish their witnesses not to voluntarily mention any gang affiliation, that each witness be admonished on that point. . . . They will be admonished on direct.

         The trial judge also said he would instruct witnesses not to mention gangs in their cross-examination testimony, but "if the question calls for that response, then so be it." As the trial progressed, the court ruled that each witness could mention "group" or "association" if necessary, but not "EME" or "Mexican Mafia."

         B. The State's case

         Ayala's trial began in August 1988 and lasted two months.^[4] "The prosecution theorized that the murders resulted from a robbery attempt that failed because it was based on the perpetrators' incorrect speculation that Dominguez had just returned from Mexico with a quantity of narcotics or cash." Ayala, 1 P.3d at 12. The State presented minimal physical evidence linking Ayala to the crimes and instead built its case around the testimony of Pete Castillo and Juan Manuel Meza.

         Castillo testified that Dominguez and Zamora sold heroin from the shop and that he was also involved in the heroin distribution operation. He described how Ayala and Hector frequented the shop to use and acquire heroin, and told the jury that he saw Ayala, Hector, and Joe Moreno outside of the body shop on the day of the murders, April 26, 1985. Id. at 13. At dusk, Castillo looked up from his work on a car and saw Hector pointing a pistol at his head. Id. Hector led Castillo into the shop where Dominguez, Zamora, and Rositas were bound by duct tape. Id. Castillo testified that Ayala demanded $10, 000 from the victims, "or someone was going to die." Id. at 14. Castillo volunteered that he had some money in his truck, and Ayala agreed to lead him there. Castillo used this opportunity to escape. He lifted the large shop door, slid under it, and let it slam down behind him. As he ran into the street, someone, likely Ayala or Moreno, fired shots at him, and Castillo was wounded in the back. Castillo fell onto 43rd Street, where police officers found him and rushed him to the hospital. Id.

         Castillo did not immediately identify the Ayalas or Joe Moreno as the perpetrators of the crime. Rather, "while in the ambulance on the way to the hospital, [he] said he did not know the killers [but] that one of them was wearing a red plaid shirt." Id. at 15. The next day at the hospital, Castillo repeated "that one of the killers was wearing a red Pendleton shirt" when he was interviewed by a detective. Id. But the day after that, Castillo identified the Ayalas and Joe Moreno as the killers and also picked them out of a photo array. Id. at 14.

         In addition to providing an eyewitness account of the crimes, Castillo's testimony corroborated the prosecution's theory of the case: He told the jury that Hector inquired about Dominguez's whereabouts roughly a week before the murders when Dominguez was in jail for minor offenses. Id. at 12. Pursuant to Dominguez's request, Castillo told Hector that Dominguez was in Mexico rather than revealing that he was in jail. Id.

         Juan Meza was also an important witness for the State because he testified that he helped plan the murders before backing out on the day of the crime. Meza told the jury that he and Hector went to the body shop to acquire drugs more than ten times between January and April 1985. He explained that about three weeks before the murders, the Ayala brothers became angry with Dominguez over a drug transaction, and Ayala proposed robbing and killing Dominguez and some of the people who worked with him. Meza testified that in the weeks before the murder, he and the Ayalas talked about Dominguez's trip to Tijuana to buy a large amount of drugs, tying the victims, and the types of guns they would use to commit the crime. Meza also described how, about a week before the murders, Hector recruited Joe Moreno to serve as the getaway driver. Meza testified that he went along with the Ayalas' plan but he never intended to participate in the murders because he feared the Ayalas would use the crime as an opportunity to kill him. According to Meza, Hector told him to be ready to be picked up on April 26 between 5 and 6 p.m., but Meza avoided his home at the appointed time.

         C. The defense

         The defense presented evidence that "Castillo was in league with the probable actual killers: two young Latino men, one of whom was wearing a red plaid shirt of the Pendleton brand or type." Id. at 15. The defense also focused on raising reasonable doubt by discrediting the State's primary witnesses.

         Ayala's trial counsel offered the testimony of Traci Pittman in support of the defense's alternative-assailant theory. Pittman testified that on the night of the murders she was at a liquor store across 43rd Street and a young Mexican man wearing a Pendleton-type shirt walked past her. Id. She thought he was concealing something that could have been a gun. Id. Pittman said the Mexican man was joined by a second Mexican-looking man, and the two disappeared into the complex containing the body shop. Id. Two minutes later, Pittman heard gunshots, saw a man-presumably Castillo-running from the body shop, and then heard several more shots. Id. At trial, defense counsel asked Pittman whether Ayala was one of the men she saw the night of the murder, and Pittman answered "no." Pittman's testimony corroborated Castillo's initial identification of the killer as someone (not Hector or Reynaldo Ayala) who was wearing a red, Pendleton-style shirt.

         The defense also called Rafael Mendoza Lopez ("Rafa") as a witness. Rafa was a long-time friend of Dominguez who frequented the body shop to purchase drugs. Id. at 15–16. On direct examination, Rafa testified that he went to the body shop on the day of the murders to get heroin from Castillo, and he saw several strangers whom he perceived to be from Mexico. Rafa testified that he did not see the Ayalas at the shop that day. Rafa described standing next to Castillo when Castillo opened the trunk of a car and took out two guns that were buried in a pile of dirty clothes. Rafa recalled Castillo telling him "that he was waiting for some people from Mexico."

         The defense endeavored to weaken the State's case by impeaching its primary witnesses, Castillo and Meza. Counsel cross-examined Castillo about his role in the body shop's drug distribution business and false statements he made during the preliminary hearing in which he denied any knowledge of drug-related activity at the body shop. Id. at 14–15. The defense emphasized that Castillo did not initially identify Ayala as the killer, but rather said the killer was a stranger "wearing a red Pendleton shirt." Id. at 15. Counsel impeached Meza with the fact that he was testifying in the hope of getting his sentence reduced, inconsistencies in his story, that it took more than a year for him to come forward, meetings he had with Chacon before deciding to testify, and a statement he made to his parole officer in which he admitted he had a propensity for lying.

         D. The State's rebuttal

         Rafa dramatically recanted his testimony in the prosecution's rebuttal. Called back to the witness stand, he told the jury that he invented the story about Castillo taking guns from the trunk of a car and commenting about waiting for people "from Mexico." He also admitted, contrary to his earlier account, that he did see the Ayalas at the body shop late in the afternoon on the day of the murders.

         When asked why he lied on Ayala's behalf, Rafa testified that he did it because Ayala asked him to, and because he was afraid that if he refused to help the Ayalas, he "might, you know, get killed or something." According to Rafa, Ayala asked him to testify falsely for the defense at a jailhouse visit that occurred shortly after Ayala's arrest in the summer of 1985. Rafa explained that Ayala pressed a piece of paper against the visiting room glass separator. A handwritten note on the paper instructed Rafa to get in touch with a defense investigator and tell him "that [the Ayalas] weren't [at the shop] on that date, make it seem like it was some Mexicans from across the border that Pete [Castillo] had hired to come and do the hit." Rafa testified that the note described the guns Rafa should connect with Castillo and said: "[w]hat happened to Chacho [Dominguez] had to happen."

         Lead defense counsel vigorously cross-examined Rafa about his flip-flopped testimony. Counsel questioned the plausibility of Rafa's meeting with Ayala, including how Ayala could write such intricate directions on a piece of paper small enough to avoid detection by prison guards. Id. at 16. She also introduced evidence that cast doubt on the credibility of Rafa's recantation. Id. In particular, though Rafa testified that a person with the nickname "Rudy Green Eyes" Ybarra accompanied him on the visit to see Ayala in jail, counsel showed that "Rudy Green Eyes" was incarcerated at that time. Id.

         Defense counsel also explored a meeting Rafa had with Detective Chacon during which, counsel believed, Chacon coerced Rafa into recanting. Chacon visited Rafa shortly after Rafa testified for the defense, when Rafa was in a holding cell awaiting transport back to prison. During this visit, Chacon accused Rafa of perjuring himself to get into the good graces of the prison's "Southern" group, with which Ayala was affiliated. Chacon told Rafa he believed this effort failed and that Rafa would face danger from both the "Southern" group and a rival "Northern" group once he returned to prison. Rafa admitted that Chacon discussed protecting him against these groups, and defense counsel accused Rafa of trading his testimony for the relative safety Chacon promised. On redirect, Rafa confirmed that he feared the "Southern" and "Northern" groups and believed Ayala had "influence over what other people in this Southern group might do, " but he denied that Chacon frightened him into recanting his testimony. Rafa maintained that he willingly told Chacon the truth because he was angry that people affiliated with Ayala "show[ed him] no kind of respect" even after he promised to lie on Ayala's behalf.

         E. Detective Carlos Chacon

         Detective Carlos Chacon testified only briefly at trial, but Ayala argues that Chacon played a significant behind-the-scenes role in this case. Chacon was a San Diego gang intelligence officer whose regular duties required that he gather intelligence about prison gangs operating in southern California, including the Mexican Mafia. Chacon had pre-trial contact with several of the witnesses in Ayala's trial.

         In addition to meeting with Rafa just before he agreed to recant the testimony he gave on Ayala's behalf, Chacon visited Juan Meza after Meza's February 1987 drug arrest, and the two discussed the 43rd Street murders. Meza was a Mexican Mafia affiliate who spent much of the decade between 1975 and 1985 in prison. Chacon was well acquainted with Meza because the two grew up in the same neighborhood. Chacon frequently visited Meza in jail to elicit information about gangs. Several weeks after one such visit, Meza admitted to his involvement in planning the 43rd Street murders, and several months after that, he agreed to testify against the Ayalas.

         F. The verdict

         After deliberating for less than a week, the jury found Ayala guilty of all charges. Id. at 11. The trial court sentenced him to death in early January 1989, and Ayala appealed.

         Ayala filed a state habeas corpus petition in the California Supreme Court while his direct appeal was pending. The petition raised several claims for relief and requested an evidentiary hearing. The California Supreme Court decided Ayala's direct appeal in June 2000, affirming Ayala's conviction and sentence in a reasoned opinion. See id. at 52. The California Supreme Court summarily denied Ayala's habeas corpus petition on the same day. Ayala's conviction became final on March 5, 2001, when the United States Supreme Court denied his petition for writ of certiorari. See Ayala v. California, 532 U.S. 908 (2001) (mem.).

         II. Procedural history

         Ayala timely filed a federal habeas corpus petition in the Southern District of California. Shortly thereafter, the district court stayed the federal proceedings so Ayala could return to state court and exhaust several of his claims.

         Ayala filed his first amended petition for writ of habeas corpus (henceforth, "Exhaustion Petition") in the California Supreme Court in September 2002. He filed two exhibits with his Exhaustion Petition: (1) a declaration by defense investigator Eric Hart; and (2) a declaration by Strickland expert Steven L. Harmon. He also requested an evidentiary hearing. The California Supreme Court summarily denied each of Ayala's claims on the merits the following year. "[S]eperately and independently, " the court found many of Ayala's claims to be procedurally barred as untimely.

         Ayala then filed a first amended petition for writ of habeas corpus in federal district court in which he asserted seventy-five claims for relief. Between February 2008 and June 2009, the district court issued three orders resolving cross-motions for summary judgment on most of Ayala's claims. The court decided that some of Ayala's ineffective assistance of counsel and witness intimidation claims were potentially meritorious, and it granted Ayala's request for an evidentiary hearing on them.^[5]

         The district court's evidentiary hearing on Ayala's ineffective assistance of counsel and witness intimidation claims spanned twenty court days over a period of nine months in 2010. The district court took testimony from about twenty witnesses, and the parties introduced nearly 120 exhibits. Following this hearing, Ayala filed a third amended habeas corpus petition for the sole purpose of adding a new claim, the seventy-sixth, based on testimony adduced at the hearing.

         On March 28, 2013, the district court issued a lengthy, well-reasoned order granting the State's motion for summary judgment on Ayala's remaining exhausted claims. See Ayala v. Chappell, No. 01CV0741-BTM (MDD), 2013 WL 1315127 (S.D. Cal. Mar. 28, 2013). In a separate order, it granted the State's motion for summary judgment, and denied Ayala's request for a certificate of appealability (COA), on Ayala's unexhausted seventy-sixth claim. The court issued a final judgment and granted a COA on twenty-six claims, including sixteen of the seventeen claims raised here. Ayala timely filed a notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.

         LEGAL STANDARDS

         We review de novo the district court's denial of Ayala's habeas corpus petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014).

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs Ayala's petition because he filed it after 1996. AEDPA substantially limits the power of federal courts to grant habeas relief to state prisoners. See id. Under AEDPA, a federal court may not grant a prisoner's petition on a claim that was decided on the merits in state court unless the state court's adjudication of the claim:

(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. § 2254(d); see also Glebe v. Frost, 135 S.Ct. 429, 430 (2014).

         "'[C]learly established Federal law' . . . is the governing legal principle or principles set forth by the Supreme Court [in its holdings] at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). A state court's decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A state court's decision is an unreasonable application of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407–08. A state court's factual findings are unreasonable if "reasonable minds reviewing the record" could not agree with them. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (alteration omitted) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). In any case, "[f]or relief to be granted, a state court merits ruling must be 'so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.'" Bemore v. Chappell, 788 F.3d 1151, 1160 (9th Cir. 2015) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

         When considering whether a state court's decision was unreasonable under § 2254(d)(1), we may consider only "the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).^[6] But if we determine "the petitioner has satisfied § 2254(d)" based only on the evidence that was before the state court, "we evaluate the claim de novo, and we may consider evidence properly presented for the first time in federal court." Crittende ...