and Submitted December 10, 2015 San Francisco, California
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
Ritt (argued), Ritt, Tai, Thvedt & Hodges, Pasadena,
California; Michael R. Belter (argued), Law Offices of
Michael R. Belter, Pasadena, California; for
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,
Corpus / Death Penalty
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.
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.
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.
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
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.
panel held that Ayala has not suffered the prejudice that
would rise to the level of a constitutional violation based
on cumulative error.
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.
CHRISTEN, Circuit Judge:
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.
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. 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.
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. Two days later, Pete
Castillo identified Ayala, Hector, and Joe Moreno as the
perpetrators of the triple homicide. Id. at 14.
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.
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).
Gang affiliation evidence
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.
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
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.
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."
The State's case
trial began in August 1988 and lasted two
months. "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.
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.
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.
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.
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.
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
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.
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."
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.
The State's rebuttal
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.
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."
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.
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
Detective Carlos Chacon
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.
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.
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
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
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.
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.
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.
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.
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.
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).
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;
(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).
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,
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). 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 ...