Reynaldo Ayala v. Kevin Chappell ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNALDO MEDRANO No. 13-99005
AYALA,
Petitioner-Appellant, D.C. No.
3:01-cv-00741-BTM-MDD
v.
KEVIN CHAPPELL, OPINION
Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief District Judge, Presiding
Argued and Submitted December 10, 2015
San Francisco, California
Filed July 20, 2016
Before: Alex Kozinski, Jay S. Bybee,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
2 AYALA V. CHAPPELL
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. § 2254habeas 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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AYALA V. CHAPPELL 3
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
4 AYALA V. CHAPPELL
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.
AYALA V. CHAPPELL 5
COUNSEL
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.
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
6 AYALA V. CHAPPELL
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
1
Ayala did not raise a Batson v. Kentucky, 476 U.S. 79 (1986), claim,
but another defendant, Ayala’s brother Hector, did. Hector and Ayala
were tried separately. Hector’s Batson challenge is the subject of Davis
v. Ayala, 135 S. Ct. 2187 (2015).
2
We refer to this crime as the “43rd Street murders.”
3
We refer to Hector Ayala as “Hector,” and his brother, petitioner
Reynaldo Ayala, as “Ayala.”
AYALA V. CHAPPELL 7
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,
8 AYALA V. CHAPPELL
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-
AYALA V. CHAPPELL 9
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
4
Although some of Ayala’s pre-trial proceedings were consolidated with
those of his brother, the two were tried separately. Ayala was tried first.
Hector was tried second and was convicted. Moreno’s trial took place
after both Ayala’s trial and Hector’s trial, and he was acquitted on all
counts.
10 AYALA V. CHAPPELL
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.
AYALA V. CHAPPELL 11
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.
12 AYALA V. CHAPPELL
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
AYALA V. CHAPPELL 13
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
14 AYALA V. CHAPPELL
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
AYALA V. CHAPPELL 15
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
16 AYALA V. CHAPPELL
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
AYALA V. CHAPPELL 17
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
5
The hearing covered claims 4, 5, 8, 12, 18, 19, 20, and 24.
18 AYALA V. CHAPPELL
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).
AYALA V. CHAPPELL 19
“‘[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
20 AYALA V. CHAPPELL
(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.” Crittenden v. Chappell, 804 F.3d 998, 1010
(9th Cir. 2015) (quoting Hurles v. Ryan, 752 F.3d 768, 778
(9th Cir. 2014)).
We apply AEDPA’s standards to the state court’s last
reasoned decision on the merits of a petitioner’s claims.
Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007)
(en banc). The California Supreme Court decided seven of
the claims at issue here in its reasoned decision on direct
review. See Ayala, 1 P.3d at 17–42, 48–52. Ayala raised the
remaining claims in his Exhaustion Petition, so the only
merits decision on those claims is the California Supreme
Court’s September 2003 summary denial. See Harrington,
562 U.S. at 98 (holding that a summary denial from the
California Supreme Court is an “adjudicat[ion] on the merits”
under AEDPA). For claims that the California Supreme
Court decided on direct appeal, “we apply AEDPA deference
to the state court’s analysis.” Bemore, 788 F.3d at 1161. For
claims that the California court addressed only in its summary
denial, “we conduct an independent review of the record to
‘determine what arguments or theories . . . could have
supported [] the state court’s decision.’” Id. (quoting
Harrington, 562 U.S. at 102) (alterations in original); see also
Cannedy v. Adams, 706 F.3d 1148, 1157–59 (9th Cir. 2013)
(for claims addressed both in a summary denial and a
6
The Supreme Court issued its decision in Pinholster after the district
court completed the 2010 evidentiary hearing in Ayala’s case but before
it issued its final summary judgment order.
AYALA V. CHAPPELL 21
reasoned opinion, we “look through” the summary denial to
review the reasoned decision).
DISCUSSION
I. Procedural bar
We first address the State’s threshold argument that the
procedural bar doctrine prevents us from reaching the merits
on several of Ayala’s claims. The procedural bar doctrine
prohibits a federal court from granting relief on the merits of
a state prisoner’s federal claim when the state court denied
the claim based on an independent and adequate state
procedural rule. Coleman v. Thompson, 501 U.S. 722,
729–30 (1991). The doctrine is implicated where, as here, the
state court’s “reliance upon [the state’s] procedural bar rule
was an independent and alternative basis for its denial of the
petition.” Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir.
2000). Even if the procedural bar doctrine otherwise
precludes relief on a prisoner’s claim, he or she “may obtain
federal review of [that] claim by showing cause for the
default and prejudice from a violation of federal law.”
Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012).
In its 2003 summary denial of Ayala’s Exhaustion
Petition, the California Supreme Court ruled that many of the
seventy-five claims included in the petition were
“procedurally barred . . . as untimely” in addition to denying
them on the merits. See In re Clark, 855 P.2d 729, 737–62
(Cal. 1993). The State argued before the district court that
the procedural bar doctrine prevented the court from granting
22 AYALA V. CHAPPELL
relief on claims the California court dismissed as untimely.7
The district court rejected the State’s procedural bar
arguments after concluding that “the procedural rules in
question are [not] sufficient to prohibit the consideration of
these claims on the merits.” After the district court issued
this ruling and held an evidentiary hearing on the merits of
Ayala’s petition, the Supreme Court decided Walker v.
Martin, 562 U.S. 307 (2011). Walker holds that California’s
timeliness rule is an independent and adequate state law
ground sufficient to bar federal habeas relief on untimely
claims. See id. at 310, 315, 317 (citing In re Clark, 855 P.2d
at 738 & n.5). Citing Walker, the State raised the procedural
bar doctrine in its final summary judgment briefing to the
district court.
The district court still declined to resolve Ayala’s federal
petition on procedural grounds. Having concluded the 20-day
evidentiary hearing and foregone defense counsel’s offer to
brief cause and prejudice, the court reasoned that “deciding
the merits of [each] claim will prove to be less complicated
and time-consuming than adjudicating the issue of procedural
default.” The district court relied on our decision in Franklin
v. Johnson, 290 F.3d 1223 (9th Cir. 2002), to reach the merits
of Ayala’s claims. Id. at 1232 (“[C]ourts are empowered to,
7
The California court also rejected many claims as successive and/or
repetitive of issues previously raised, but before our court, the State asserts
procedural bars based only on timeliness grounds, and only as to claims
1, 4, 6, 12, 18, and 20. Any argument that additional claims are
procedurally barred because they were successive, repetitive, or untimely
is therefore waived. See Slovik v. Yates, 556 F.3d 747, 751 n.4 (9th Cir.
2009) (declining to reach a procedural bar argument the state raised for the
first time in a petition for rehearing); Vang v. Nevada, 329 F.3d 1069,
1073 (9th Cir. 2003) (noting that procedural bar is subject to waiver by the
state).
AYALA V. CHAPPELL 23
and in some cases should, reach the merits of habeas petitions
if they are . . . clearly not meritorious despite an asserted
procedural bar.”).
The State renews its procedural bar argument here, and
we follow the same tack as the district court. The State is
correct that Walker precludes relief on several of Ayala’s
claims unless Ayala demonstrates cause and prejudice for his
procedural default, see Walker, 562 U.S. at 316, but the
parties did not develop a record on cause and prejudice. See,
e.g., Loveland, 231 F.3d at 644–45 (remanding for the district
court to hold an evidentiary hearing on cause and prejudice).
Thus, in keeping with Franklin’s admonishment that where
claims are “clearly not meritorious,” “appeals courts are
empowered to, and in some cases should, reach the merits of
habeas petitions . . . despite an asserted procedural bar,”
290 F.3d at 1232, we proceed to evaluate Ayala’s claims on
the merits.
II. Ineffective assistance of counsel
Ayala first argues that his defense team was
constitutionally ineffective because his lawyers failed to
present evidence that would have called into question the
credibility of key prosecution witnesses Meza and Castillo.8
More specifically, Ayala claims trial counsel unreasonably
declined to call witnesses: (1) Richard Savocchio and Raul
Garcia, who would have testified that Meza invented his story
about the Ayalas’ participation in the 43rd Street murders to
obtain a reduction in his own custodial time, and (2) Johnny
Mendez and Luis Garcia, who would have testified that
8
Ayala draws this argument from claims 18, 19, and 20.
24 AYALA V. CHAPPELL
Castillo “had, prior to the murders, solicited [them] to kill
victim Zamora.”
“The clearly established federal law for ineffective
assistance of counsel [“IAC”] claims, as determined by the
Supreme Court, is Strickland v. Washington, 466 U.S. 668(1984) . . . .” Andrews v. Davis, 798 F.3d 759, 774 (9th Cir.
2015). To prevail on an IAC claim, a defendant must
establish that his counsel’s performance was constitutionally
deficient, and that “the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. Strickland’s “deficient
performance” prong requires a defendant to show “that
counsel’s representation fell below an objective standard of
reasonableness” such that “counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687–88. In evaluating a lawyer’s
performance, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Id. at 689(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Strickland’s “prejudice” prong requires a defendant to show
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at
694.
“Under the AEDPA, the primary issue is whether the state
court adjudication of the Strickland claim[] was objectively
reasonable.” Woods v. Sinclair, 764 F.3d 1109, 1131 (9th
Cir. 2014). “The standards created by Strickland and
§ 2254(d) are both ‘highly deferential,’ and when the two
AYALA V. CHAPPELL 25
apply in tandem, review is ‘doubly’ so.” Harrington,
562 U.S. at 105 (citations omitted). Thus, even if we would
find, on de novo review, that petitioner can satisfy both
Strickland prongs, “AEDPA requires that a federal court find
the state court’s contrary conclusions . . . objectively
unreasonable before granting habeas relief.” Woods,
764 F.3d at 1132.
A. The defense team’s“no-gang” approach
Long before trial started, Ayala’s defense team decided
on a plan to insulate the jury from hearing evidence that
Ayala was affiliated with the Mexican Mafia. This plan
informed defense counsels’ decisions not to present the
testimony of several impeachment witnesses whom they
believed were affiliated with prison gangs. Ayala now argues
that his lawyers’ decisions not to call these witnesses
amounted to deficient performance under Strickland, and that
the California Supreme Court’s denial of this IAC claim was
unreasonable. We analyze this argument by considering first
whether the California Supreme Court reasonably applied
Strickland’s deferential standard when it upheld the defense’s
“no-gang” trial plan, and then whether the defense team’s
decision not to call individual witnesses was consistent with
the plan.
The California court did not evaluate counsels’ overall
“no-gang” plan in a reasoned decision, so we “determine
what arguments or theories . . . could have supported[] the
state court’s decision[] and then . . . ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of” the Supreme Court. Harrington, 562 U.S. at 102. We
conclude that the California Supreme Court reasonably
26 AYALA V. CHAPPELL
deferred to defense counsels’ choices regarding exclusion of
gang affiliation evidence.
The record leaves no doubt that counsels’ effort to avoid
mention of the Mexican Mafia or EME at trial was a carefully
considered, deliberately undertaken strategy, the likes of
which we cannot second-guess on federal habeas review. In
People v. Cardenas, 647 P.2d 569 (Cal. 1982), the California
Supreme Court recognized that gang affiliation evidence is
prejudicial because it invites a jury to find a defendant guilty
by association. Id. at 572. Ayala’s lawyers cited Cardenas’s
progeny in their motion in limine to exclude gang affiliation
evidence, where they argued that mention of the Mexican
Mafia would unduly prejudice Ayala.9 They attached to their
motion dozens of newspaper articles documenting the
prevalence of gang violence in Southern California, and
argued that jurors would likely have negative impressions of
gangs. Counsel doggedly pursued a ruling on this motion in
limine for nearly a year, insisting that without a ruling the
defense would be unable to “strategize [and] determine what
course of action to take with regard to jury selection and
cross-examination.” In light of community awareness of
gang-related violence in San Diego in the mid-1980s, we
cannot say that the defense trial team’s decision to insulate
the jury from Ayala’s gang affiliation was unreasonable, nor
are we persuaded that the California Supreme Court
9
Ayala argues that his counsel were ineffective because they overlooked
key California cases, namely Cardenas and People v. Munoz, 204 Cal.
Rptr. 271, 278 (Cal. Ct. App. 1984), which held that the prosecution could
inquire into a witness’s gang membership only by using euphemisms like
“groups” or “affiliation.” The record does not show that counsel
overlooked this case law. Counsel cited Munoz in the motion in limine,
which argued (in part) that neither the State nor its witnesses should be
allowed to mention “gang,” “Mexican Mafia,” or “EME.”
AYALA V. CHAPPELL 27
unreasonably applied Strickland when it deferred to the
defense team’s informed, strategic choice. See Harrington,
562 U.S. at 105.
Ayala nevertheless argues that his lawyers’ failure to call
witnesses with any connection to a gang was overly cautious
and unduly hindered Ayala’s defense. We disagree. Ayala’s
argument assumes that defense counsel could have controlled
the extent to which the trial court would have allowed the
prosecution to explore a witness’s gang affiliation on cross-
examination if the subject had been broached on direct
examination. But the record refutes that assumption. The
trial court did not categorically prohibit all gang-related
testimony because, as the court made clear in its ruling on the
defense motion in limine, a witness’s gang affiliation could
be highly relevant to his or her motive to lie on Ayala’s
behalf. The court correctly ruled that such testimony might
be admitted on cross examination if “the people perceive a
need to deal with the credibility issue” or “if [a] question calls
for that response,” and it did not specify whether or to what
extent a witness’s mention of gangs might open the door to
evidence that could connect Ayala to the Mexican Mafia.
And even though the trial court cautioned each witness not to
mention the Mexican Mafia, defense counsel risked losing
command of a witness’s testimony once the witness was on
the stand. See Mohamed v. Jeppesen Dataplan, Inc.,
614 F.3d 1070, 1089 (9th Cir. 2010) (en banc) (recognizing
the inherent unpredictability in presenting witness testimony).
For these reasons, calling any witness with a gang connection
necessarily entailed some risk of tainting Ayala in the jury’s
eyes, and the defense team’s cautious approach to these
witnesses was well within the broad “range of reasonable
professional assistance.” Strickland, 466 U.S. at 689; see
also id. at 690 (“[S]trategic choices made after thorough
28 AYALA V. CHAPPELL
investigation of law and facts relevant to plausible options are
virtually unchallengeable.”).
B. Counsel’s decision not to call Richard Savocchio
Ayala’s primary IAC claim is that his lawyers were
constitutionally ineffective because they failed to impeach
Juan Meza with the testimony of inmate Richard Savocchio.
Defense counsel subpoenaed Savocchio in anticipation of
his testifying on Ayala’s behalf. Savocchio’s prison file
showed that he had some sort of problem with the Mexican
Mafia while incarcerated so, consistent with its pre-trial
ruling, the trial court required him to testify at a hearing
outside of the jury’s presence to determine the extent to
which he could be impeached before the jury with evidence
of gang ties. Ayala, 1 P.3d at 31.
Savocchio said that he and Meza were incarcerated
together after the 43rd Street murders and that Meza told him:
“these guys [the Ayalas] are going down anyhow, and I’m
going to get something out of it. It’s all bullshit. I don’t
know anything about it, they are going anyways.” Defense
counsel argued that “Savocchio understood the meaning of
the conversation to be that Mr. Meza was cutting a deal for
himself to testify in the case about which he knew nothing.”
The prosecution and the defense both asked Savocchio about
the gang notation in his prison file, and Savocchio denied any
gang affiliation. He testified that he was not acquainted with
any Mexican Mafia members. Savocchio explained that the
gang notation in his file related to a lie he told years earlier:
In order to manipulate a transfer out of Folsom State Prison,
he falsely claimed he owed a debt to a Mexican Mafia
member incarcerated there.
AYALA V. CHAPPELL 29
After hearing Savocchio’s testimony outside the presence
of the jury, the trial court ruled that if the defense called
Savocchio to testify, the prosecution would be allowed to
impeach Savocchio with his admission that he lied to prison
officials and that the lie involved the Mexican Mafia. The
defense expressed concern that the prosecutor’s cross-
examination about the Mexican Mafia might backfire and
harm Ayala and so decided against calling Savocchio.
Ayala argued on direct appeal that his trial counsel was
constitutionally ineffective for declining to call Savocchio,
and the California Supreme Court rejected this argument in
a reasoned decision. Id. at 32–33. Ayala raised the same
Savocchio-based IAC claim on federal habeas review with
slightly better results. The district court ruled that the
California Supreme Court’s resolution of this claim was
unreasonable under 28 U.S.C. § 2254(d)(1) because the state
court’s rationale for denying it was inconsistent with its
reasoning on a related evidentiary ruling.10 The district court
10
Ayala also argued on direct appeal that any mention of the Mexican
Mafia would have been “substantially more prejudicial than probative,”
and that the trial court erred when it ruled that, if the defense called
Savocchio, the prosecution could impeach him with evidence that he lied
about having a problem with the Mexican Mafia. Ayala, 1 P.3d at 32
(citing Cal. Evid. Code § 352). The California Supreme Court was not
persuaded. It reasoned, “Savocchio would have been impeached, if at all,
with evidence that he was not in a prison gang.” Id. The California court
“fail[ed] to discern how [Savocchio’s testimony] would link defendant
with the Mexican Mafia in the jurors’ minds.” Id. The district court ruled
that this rationale was irreconcilable with the state court’s simultaneous
dismissal of Ayala’s Savocchio-related IAC claim because, in dismissing
the IAC claim, the California court implicitly recognized that Savocchio’s
testimony about the Mexican Mafia could have harmed Ayala. The
district court’s point is well taken, compare id., with id. at 33, but we are
not persuaded that the state court’s decision was unreasonable within the
30 AYALA V. CHAPPELL
reviewed de novo Ayala’s claim that his lawyers were
ineffective for failing to call Savocchio and still denied relief.
After thoroughly examining the record, including new
evidence Ayala adduced at the 2010 evidentiary hearing, the
district court concluded that counsels’ decision regarding
Savocchio did not prejudice Ayala. Ayala renews this IAC
claim in our court, pressing his strongest theory: if nothing
else, Ayala argues, the defense should have reopened its case
to call Savocchio after Rafa recanted because at that point the
jury must have known Ayala was affiliated with a gang, and
there would have been nothing to lose by allowing the jury to
hear Savocchio’s anticipated reference to the Mexican Mafia.
We agree that the cost-benefit analysis associated with
Savocchio’s testimony significantly changed after Rafa
recanted. Recalled to the witness stand by the prosecutor,
Rafa told the jury that he had seen the Ayala brothers at the
shop on the day of the murders and that he lied when he said
otherwise because Ayala asked him to. He testified that he
knew of (and feared) the “Northern group” and the “Southern
group” at Donovan State Prison. When asked by the
prosecutor whether he “believe[d] that the defendant in this
case has any influence over what other people in this
Southern group might do, as it pertains to you,” Rafa
answered “[y]es.” He also said he initially testified for Ayala
because he was afraid that if he did not “cooperate with” the
Ayalas he might “get killed or something.” Rafa’s
recantation certainly marked a sea change in the trial, but we
are not convinced that his testimony about the “Southern” and
“Northern” groups inevitably led the jury to conclude that
meaning of § 2254(d)(1), because, as the California Supreme Court
recognized, any mention of the Mexican Mafia—even one seemingly
unrelated to Ayala—could have undermined counsel’s “no-gang” strategy.
AYALA V. CHAPPELL 31
Ayala was personally affiliated with the Mexican Mafia. The
questions about “Northern” and “Southern” groups occupied
a relatively small part of Rafa’s testimony, neither Rafa nor
counsel used the words “gang,” “EME,” or “Mexican Mafia,”
and from our review of the record it is not clear that the jury
would have equated these prison groups with the street gangs
that had received notoriety in southern California at the time
of the trial. In this sense, defense counsel’s “no-gang”
strategy may have partially survived Rafa’s testimony.
More importantly, counsel did not make their decision
regarding Savocchio in a vacuum but instead had to gauge the
likely value to be gained from Savocchio’s testimony. Even
after Rafa recanted, there were several reasons to think that
Savocchio’s testimony might have been more harmful than
helpful: (1) Savocchio did not have a close relationship with
Meza before Meza allegedly admitted to him that he was
testifying falsely against Ayala, and it is unclear why Meza
would have chosen to confide in Savocchio; (2) Savocchio’s
testimony that he knew almost nothing about prison gangs
despite spending most of his life in prison may have appeared
unbelievable; (3) Savocchio had a number of prior
convictions; and (4) Savocchio admitted that he lied to prison
officials to get transferred to another prison. For these
reasons, defense counsel had good reason to question whether
the jury would have believed Savocchio and thus whether
Savocchio’s testimony would have effectively impeached
Meza. And calling Savocchio to testify entailed the certain,
if unquantifiable, risk that the prosecutor’s cross-examination
would concretely link Ayala to the Mexican Mafia. We have
held that when “the risks associated with calling [certain
witnesses] to testify outweighed the potential benefits . . . it
is reasonable to conclude that counsel wasn’t ineffective in
32 AYALA V. CHAPPELL
failing to call” those witnesses. Zapien v. Martel, 805 F.3d
862, 870 (9th Cir. 2015).
The California Supreme Court denied this claim because
it reasoned that defense counsel believed their “victory
regarding mention of gangs” was intact even after Rafa
recanted. See Ayala, 1 P.3d at 33. We agree that defense’s
“no-gang” plan was probably preserved to some degree, but
we also acknowledge that Rafa’s recantation left the defense
scrambling. Outside of the jury’s presence, defense counsel
sought a continuance because Rafa’s changed testimony
altered “the entire complexion of the case.” But the defense
ultimately elected not to abandon the “no-gang” strategy and
we cannot find statements in the state court record in which
counsel or the court acknowledged that Rafa’s testimony
revealed Ayala’s gang affiliation to the jury.
We owe considerable deference to the California Supreme
Court under the standards dictated by AEDPA, see Glebe,
135 S. Ct. at 430, and the California Supreme Court owed
considerable deference to defense counsel under the standards
dictated by Strickland, see Harrington, 562 U.S. at 105.
There is room for fairminded jurists to disagree about
whether defense counsels’ decision not to call Savocchio to
testify fell below an objectively reasonable standard of care.
See id. at 103. More to the point, even if we agreed with the
district court that the California court’s analysis of
Savocchio’s testimony was internally inconsistent and
therefore unreasonable under AEDPA, we also agree with the
district court that, reviewed de novo, this claim does not
entitle Ayala to relief.
On de novo review we consider evidence the parties
elicited at the 2010 evidentiary hearing. See Crittenden,
AYALA V. CHAPPELL 33
804 F.3d at 1010. This evidence substantially undermines
Ayala’s Savocchio-based IAC claim. In 2010, Savocchio
admitted that he did owe a debt to someone affiliated with the
Mexican Mafia around the time of Ayala’s trial. Savocchio
testified at the evidentiary hearing that he embellished the
details of his connection to the Mexican Mafia in the 1980s
to secure the transfer to another prison, but he denied that he
wholly invented his fear of the gang. It is impossible to know
which version of history Savocchio would have told if
defense counsel had called him to testify at trial, but if
Savocchio told the jury that his fear of the Mexican Mafia
was real—which is what he said during the 2010
hearing—the prosecutor surely would have asked whether
this fear motivated him to testify on Ayala’s behalf. Even
after Rafa recanted, this line of questioning would have
damaged Ayala in two ways: (1) the jury would have had
another reason to disbelieve Savocchio; and (2) it would have
crystalized the impression that Ayala was a dangerous gang
member thereby suggesting guilt by association.
Defense counsel also testified at the 2010 hearing. Lead
counsel confirmed that she initially chose not to call
Savocchio because she was unsure whether his testimony
would open the door to damaging gang affiliation evidence:
[T]he judge made it clear that if Mr.
Savocchio testified he was going to allow
impeachment with regard to the EME issue; in
other words, whatever relationship Mr.
Savocchio had or didn’t, whether real or
something he had made up, about the EME,
and that it was going to open the door in a
specific way to the gang issue that we had
been attempting to keep out of the case.
34 AYALA V. CHAPPELL
Lead counsel explained that she reviewed Savocchio’s prison
file with him before the 1988 in limine hearing, and although
she lacked specific recollection of her pre-trial meeting with
Savocchio, she surmised that she was aware of his debt to
someone connected with the Mexican Mafia.
Counsel acknowledged at the 2010 hearing that she would
have pursued a different trial strategy if she had known Rafa
was going to recant. But as we have observed, counsel could
not have known this would happen; indeed, Rafa’s
recantation was a devastating development for the defense
because it came so late in the trial and counsel built their
defense on a “no-gang” strategy. From the outset, the defense
team prepared with the aim of keeping evidence of Ayala’s
gang affiliation from the jury. This meant that the defense
team did not extensively voir dire the jury on their attitudes
about gangs because they did not want to suggest that the
43rd Street murders were gang related. It also meant the
defense did not present expert testimony to explain the
distinction between prison gangs and street gangs, or that
Ayala’s gang was different from those that terrorized
southern California in the mid-1980s. After Rafa recanted,
the defense requested and received a continuance to regroup.
It considered abandoning its “no-gang” strategy, but it had no
voire dire record from which to predict how the jury would
react and no expert testimony that might have allowed it to
contextualize Ayala’s participation in the Mexican Mafia.
Worse, shifting strategies would have forced counsel to admit
to the jury that the defense withheld key facts about Ayala’s
gang-involvement. Ayala does not explain how defense
counsel could have completed such a maneuver without
ruining her credibility with the jury, and Ayala’s own
Strickland expert acknowledged that “[t]he credibility of
counsel during all phases of a trial . . . is absolutely crucial.”
AYALA V. CHAPPELL 35
In sum, we agree with the district court that the initial
decision not to present Savocchio’s testimony did not fall
below an objective standard of reasonableness. See Bemore,
788 F.3d at 1163 (“[A] tactical decision may constitute
constitutionally adequate representation even if, in hindsight,
a different defense might have fared better.”). We also agree
with the district court’s analysis of counsel’s decision not to
reopen the defense case after Rafa testified. 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. Indeed, a holding to the contrary would be
the type of “Monday morning quarterbacking” Strickland
prohibits. See Strickland, 466 U.S. at 689 (reviewing courts
must “eliminate the distorting effects of hindsight”). Habeas
relief is not warranted on this claim.11
C. Counsel’s decision not to call “other witnesses”
Ayala also argues that trial counsel was ineffective for
failing to impeach: (1) Meza by calling inmate Raul Garcia to
testify that Meza admitted to knowing nothing about the 43rd
Street murders; and (2) Castillo, with evidence that he
solicited Juan Mendez (and possibly Luis “Bobo” Garcia) to
kill victim Zamora in the months before the murders.
11
Ayala also argues that trial counsel was ineffective by failing to
impeach Meza with evidence about his past involvement with gangs and
longstanding relationship with Detective Chacon. The record refutes this
claim. Trial counsel thoroughly impeached Meza. She avoided certain
topics—such as Meza’s former status as a Mexican Mafia member and his
friendly relationship with Detective Chacon, a gang intelligence
officer—because cross-examination on those topics would have permitted
the State to inquire, on re-direct, about Meza’s (and Ayala’s) Mexican
Mafia affiliation.
36 AYALA V. CHAPPELL
Ayala did not name these “other witnesses” in his
Exhaustion Petition or in the declarations he filed with the
California Supreme Court. There, he alleged only that
counsel was ineffective for failing to impeach Meza with
evidence that he “had confessed to numerous witnesses,
including Richard Sovacchio [sic] among many others –
known to Petitioner’s counsel” that he had no idea wither
Petitioner had actually participated in the 43rd street murders.
Similarly, Ayala’s Exhaustion Petition and the supporting
declarations alleged only that counsel was ineffective for
failing to impeach Castillo with evidence that he “had, prior
to the murders, solicited two different witnesses to kill victim
Zamora.” Under Pinholster, we review these IAC claims as
Ayala presented them to the California Supreme Court.
563 U.S. at 187 n.11 (“Even if the evidence adduced in the
District Court additionally supports [a claim presented to the
state court], we are precluded from considering it.”).
Therefore, we do not consider evidence that specific
individuals—including Raul Garcia, Mendez, and Luis
Garcia—were willing to testify on Ayala’s behalf in 1988.
See id. at 181 (“[R]eview under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the
claim on the merits.”).12
The California Supreme Court did not unreasonably deny
Ayala’s IAC claims as they relate to “other witnesses.”
Ayala did not allege in the California court that counsel could
12
Because the California Supreme Court summarily denied these IAC
claims, we “determine what arguments or theories . . . could have
supported . . . the state court’s decision; and then . . . ask whether it is
possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of” the Supreme
Court. Harrington, 562 U.S. at 102.
AYALA V. CHAPPELL 37
have presented the testimony of these witnesses without
wrecking their “no-gang” defense plan. To the contrary,
Ayala admitted in his Exhaustion Petition that counsel chose
not to call these witnesses because counsel believed the
witnesses were gang-affiliated. Just as we conclude that
counsel’s decision to insulate the jury from mention of the
Mexican Mafia was “sound trial strategy,” Strickland,
466 U.S. at 689, we conclude that decisions counsel made to
implement this strategy, like declining to call gang-affiliated
witnesses, were likewise reasonably strategic. Id.“[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable” under Strickland. Id. at 690. The
California Supreme Court’s denial of these claims was not an
unreasonable application of Strickland.
Ayala also argues that defense counsel failed to
independently investigate the gang affiliation of numerous
witnesses before deciding not to call them. He claims
defense counsel entered “into an agreement with the
prosecution, whereby counsel provided to the prosecution the
names of [Ayala’s] prospective witnesses, and would agree
not to call certain witnesses upon receiving any representation
or threat from the prosecution of possible gang-related
affiliations relating to that witness.”
Ayala correctly argues that “counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Wiggins
v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland,
466 U.S. at 690–91). But the record before the state court
does not support Ayala’s claim that his lawyers abdicated this
duty. Instead, it shows that counsel located potential
witnesses and sought access to their prison files before
38 AYALA V. CHAPPELL
deciding whether to call them to testify. For example,
counsel reviewed Savocchio’s prison file before he testified
at the in limine hearing. And counsel stated during pretrial
hearings that she subpoenaed “department of corrections’
files” for key witnesses in part to learn whether those
witnesses were gang-affiliated. The trial court ordered the
State to turn over “[a]ll notes or memoranda, handwritten or
typed, by an investigating officer, peace officer, or deputy
district attorney of their conversations with any witnesses
which is relevant to said witness[es]’ credibility,” and one of
the district attorneys confirmed that her office delivered this
discovery, including requested prison files, to the defense
team. Because of these efforts by defense counsel, Ayala’s
case is unlike Thomas v. Chappell, a pre-AEDPA case where
we granted relief because the defense “conducted no
investigation for supporting witnesses or corroborating
evidence outside” the community in which the murder took
place (and in which petitioner lived), despite sworn testimony
that the victims and another suspect came from a different
community. 678 F.3d 1086, 1096 (9th Cir. 2012); see also id.
at 1104 (counsel’s “failure to call [the witness] cannot be
excused as a tactical decision because [counsel] did not have
sufficient information with which to make an informed
decision”). Ayala’s defense team opted against calling some
potential witnesses; it did not overlook them.
To the extent Ayala argues that his lawyers performed
deficiently because they relied to some degree on the
prosecution’s information about potential witnesses, that
argument is also without merit. Defense counsel was
concerned not only with what prospective witnesses’ prison
files showed, but also with Detective Chacon’s knowledge of
witnesses’ affiliations that might surface on cross-
examination. Counsel were keenly aware of Detective
AYALA V. CHAPPELL 39
Chacon’s involvement in this prosecution; they knew he was
a gang intelligence officer who had kept tabs on several of the
prospective witnesses for years before Ayala’s trial, and they
suspected that Chacon’s awareness of potential witnesses’
gang affiliations far outstripped the information contained in
their prison files. If the prosecution had information tying a
prospective witness to gangs, from any source, calling the
witness to testify might have opened the door for the State to
impeach the witness with evidence of gang-driven bias. For
this reason, there is ample room for fairminded disagreement
about whether consulting with the prosecution before calling
prospective impeachment witnesses was an “error[] so serious
that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687; see also Harrington, 562 U.S. at 103(discussing AEDPA deference). The California court
reasonably rejected Ayala’s failure-to-investigate claim.
But even if we reviewed this claim de novo, Ayala would
not be eligible for relief. Defense counsel confirmed during
the 2010 evidentiary hearing that she purposely chose not to
call many witnesses, including Raul Garcia and Mendez,
because those witnesses were or had been gang affiliated.
Exhibits Ayala introduced at the 2010 hearing show that
counsel investigated these witnesses to evaluate potential
exposure to harmful gang affiliation evidence. For example,
Ayala submitted defense counsel’s pre-trial notes in which
she described her impressions of Raul 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.” Cf. Cannedy v. Adams,
706 F.3d 1148, 1160–61 (9th Cir. 2013) (granting relief when
uncontradicted evidence showed that trial counsel failed to
40 AYALA V. CHAPPELL
interview a key witness). Ayala also introduced notes from
defense counsel’s pretrial interviews with Juan Mendez in
which she wrote that Mendez “ha[d] been reported in his
prison file [as] . . . EME affiliated,” that Mendez knew Ayala
from the prison gang, and that Mendez had done favors for
the gang during his time in prison. These notes show that
trial counsel’s decision not to call “numerous witnesses” was
consistent with her trial strategy. Strickland, 466 U.S. at 689.
Relief under Strickland is not available.
Finally, Ayala asks us to stay his federal proceedings so
he can seek reconsideration of his IAC claims in the
California Supreme Court. See Gonzalez v. Wong, 667 F.3d
965, 980 (9th Cir. 2011) (staying federal case to give
petitioner the opportunity to present to the state court
evidence first adduced in federal court). In particular, Ayala
seeks the chance to submit in state court evidence he first
presented in the federal proceedings, including evidence that
Juan Mendez, Raul Garcia, and Luis Garcia were willing to
testify on Ayala’s behalf in 1988. But the district court held
an extended evidentiary hearing on Ayala’s IAC claims, and
its lengthy and well-reasoned order concluded that Ayala’s
petition failed even in light of this newly presented evidence.
See Ayala v. Chappell, No. 01CV0741-BTM (MDD), 2013
WL 1315127 (S.D. Cal. Mar. 28, 2013). We agree with the
district court that the 2010 evidence does not strengthen
Ayala’s IAC claims, and we decline Ayala’s invitation to stay
his federal case.13
13
Ayala additionally argues that counsel rendered deficient performance
by declining to call Jesus Aguilar, Javier Frausto, and Sal Colabella,
whose testimony would have corroborated Juan Mendez’s story that
Castillo previously solicited people to kill one of the victims. Ayala did
not present these names to the state court, although information about
AYALA V. CHAPPELL 41
D. The state court’s fact-finding process
Ayala argues that de novo review of his Strickland claims
is warranted because the state court’s fact-finding process
was deficient. He requested an evidentiary hearing in his
initial state habeas corpus petition, which the California
Supreme Court summarily denied in June 2000, and in his
Exhaustion Petition, which the California Supreme Court
summarily denied in September 2003. Ayala raised his IAC
claims in both state court petitions, and he now argues that it
was unreasonable for the California Supreme Court to resolve
these claims without first granting him an evidentiary
hearing. We disagree.
We have recognized that a state court’s decision may be
based on an “unreasonable determination of the facts,”
28 U.S.C. § 2254(d)(2), if “the [fact-finding] process
employed by the state court [was] defective,” Taylor v.
Maddox, 366 F.3d 992, 999 (9th Cir. 2004); see also Woods,
764 F.3d at 1128. “To find the state court’s [fact-finding]
these witnesses was in his possession when he filed his Exhaustion
Petition. Therefore, under Pinholster we cannot consider the testimony
of these witnesses, 563 U.S. at 181, and a stay is not proper under
Gonzalez, 667 F.3d at 979. Shortly before oral argument in our court,
Ayala filed a declaration from Travis Chelberg, a newly-identified
declarant who participated in a residential drug abuse treatment program
with Meza decades after Ayala’s trial. Chelberg declares Meza admitted
to him that he lied when he testified against the Ayalas. Ayala moves for
remand under Rhines v. Weber, 544 U.S. 269 (2005), so the district court
can review this evidence. See ECF No. 61. The motion is denied. We
decline to use the stay-and-abeyance procedure outlined in Rhines and
ordinarily reserved for mixed habeas petitions to allow Ayala to develop
his claim based on new evidence. The proper method for obtaining relief
is to seek leave to file a second habeas petition. See 28 U.S.C.
§ 2244(b)(3).
42 AYALA V. CHAPPELL
process defective . . . ‘we must more than merely doubt
whether the process operated properly. Rather, we must be
satisfied that any appellate court to whom the defect is
pointed out would be unreasonable in holding that the state
court’s fact-finding process was adequate.’” Hurles,
752 F.3d at 778 (citation omitted). A state court’s denial of
a petitioner’s request for an evidentiary hearing does not
necessarily render its fact-finding procedure defective.
Woods, 764 F.3d at 1128 (concluding that it “was not
unreasonable for the Washington Supreme Court to deny
Woods’s request for a[n evidentiary] hearing”); see also
Harrington, 562 U.S. at 97 (denying relief on an IAC claim
where the California Supreme Court did not grant petitioner
an evidentiary hearing).
Turning first to Ayala’s Savocchio-based IAC claim, we
have no trouble concluding that the California Supreme
Court’s decision to deny Ayala an evidentiary hearing was
not unreasonable. The record before the California Supreme
Court included a complete transcript of the trial court’s in
limine hearing where defense counsel explained her decision
not to call Savocchio as a witness. The California court
“reasonably concluded that the evidence already adduced was
sufficient to resolve” the question of counsel’s performance
on this score. Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th
Cir. 2012).
We come to the same conclusion on Ayala’s IAC claim
based on “other witnesses.” As explained, Ayala alleged in
his Exhaustion Petition that the defense team’s “no-gang”
strategy drove their decision not to call numerous other
impeachment witnesses, and this remains the crux of his IAC
argument in our court. The record before the California
Supreme Court vividly illustrated that the “no-gang” strategy
AYALA V. CHAPPELL 43
was well researched and deliberate, and that decisions
counsel made to carry out the strategy, including decisions
not to call gang-affiliated witnesses, were likewise
reasonable. See Strickland, 466 U.S. at 689–90. The
California Supreme Court did not need an evidentiary hearing
to resolve this IAC claim. See People v. Duvall, 886 P.2d
1252, 1258–59 (Cal. 1995) (requiring California courts to
assume the truth of a habeas petitioner’s non-conclusory
allegations); Laurie L. Levenson, California Criminal
Procedure § 30:25 (2014) (“The court may also deny the
petition without a hearing if consideration of the written
return and matters of record persuade it that the contentions
of the petition lack merit.”).14
III. Brady relating to Juan Meza
Ayala’s next group of claims arises from Brady v.
Maryland, 373 U.S. 83 (1963). Ayala argues in these claims
that the State failed to disclose impeachment evidence about
its key witness, Juan Meza, who testified at trial that Ayala
enlisted him to plan and participate in the 43rd Street
murders. Ayala argues the State “failed to disclose specific
details of Meza’s long history as a prosecution informant, his
years-long relationship with Chacon as a snitch, the fact that
Meza previously denied having any personal knowledge of
the 43rd Street murders, and the full extent of the
consideration that Meza received for his testimony against
14
Because we conclude that the California Supreme Court reasonably
applied Strickland’s deficient performance prong when it denied Ayala’s
IAC claims, we need not decide whether Ayala established prejudice
under Strickland prong two. See Cannedy, 706 F.3d at 1157 (“If the state
court reasonably concluded that Petitioner failed to establish either prong
of the Strickland test, then we cannot grant relief.” (footnote omitted)).
44 AYALA V. CHAPPELL
Ayala.” The State also allegedly concealed evidence that
Detective Chacon orchestrated Meza’s decision to come
forward to testify nearly two years after the murders. This
issue draws from several certified claims (namely, claims 5,
6, and 8), but Ayala focused his argument in our court on
uncertified claim 76.
Claim 76 arose from Meza’s testimony at the 2010
evidentiary hearing wherein he discussed benefits he received
in exchange for testifying against Ayala in 1988. Ayala
interpreted this hearing testimony as revealing previously
undisclosed evidence about Meza’s immunity agreement.
Ayala raised claim 76 in his third amended habeas corpus
petition, asserting that the State failed to disclose the scope of
the immunity Meza received in exchange for his trial
testimony. The district court granted the State’s motion for
summary judgment on claim 76, ruling that the claim was
unexhausted and lacked merit.
Brady is the clearly established law governing the state’s
duty to disclose impeachment evidence favorable to the
defense. 373 U.S. at 87. Brady holds that “the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment.” Id. “Evidence favorable to
[the] accused” includes evidence that would help a defendant
impeach prosecution witnesses. See Giglio v. United States,
405 U.S. 150, 154–55 (1972). To establish a Brady violation,
a defendant must show: “(1) the evidence at issue is favorable
to the accused, either because it is exculpatory or because it
is impeaching; (2) the evidence was suppressed by the
government, regardless of whether the suppression was
willful or inadvertent; and (3) the evidence is material to the
AYALA V. CHAPPELL 45
guilt or innocence of the defendant.” United States v.
Sedaghaty, 728 F.3d 885, 899 (9th Cir. 2013).
A. Claim 76
Ayala concedes in his opening brief that claim 76 is
unexhausted because it is based on testimony elicited for the
first time in federal district court. See 28 U.S.C.
§ 2254(b)(1)(A); Woods, 764 F.3d at 1129–30. He asks us to
review it on the merits because it is closely connected to
several of his exhausted, certified claims, but he cites no
authority for this proposition and we cannot create any here.
Ayala alternatively asks us to stay his federal proceedings so
that he may present claim 76 to the California Supreme
Court. He bases this request on our decision in Gonzalez v.
Wong, 667 F.3d 965 (9th Cir. 2011).
In Gonzalez, the State concealed critical impeachment
documents until petitioner’s state post-conviction proceedings
were complete, a flagrant and continuing Brady violation. Id.
at 976. “Because the suppressed materials substantially
strengthened the petitioner’s Brady claim, we remanded that
portion of the petitioner’s case to the district court, with
instructions to stay the habeas proceedings until the petitioner
had an opportunity to present the new evidence to the
California Supreme Court.” Thompson v. Runnels, 705 F.3d
1089, 1100 (9th Cir. 2013) (discussing Gonzalez). We stayed
Gonzales’s federal case, thereby enabling him to present this
new evidence in state court, because: (1) the evidence first
uncovered in federal court gave rise to a potentially
meritorious claim; and (2) the petitioner diligently pursued
that evidence in the state court. See Gonzalez, 667 F.3d at
979–80.
46 AYALA V. CHAPPELL
Ayala’s case is not analogous to Gonzalez because
Meza’s 2010 hearing testimony did not give rise to a
potentially meritorious Brady claim. The State disclosed
Meza’s written immunity agreement to defense counsel
before Ayala’s trial in 1988, and the agreement was admitted
as a trial exhibit. The agreement showed that Meza testified
against Ayala in exchange for use and derivative use
immunity and a favorable recommendation regarding
resentencing on his February 1987 drug conviction. Ayala
concedes that the State properly disclosed Meza’s written
agreement, but he argues that Meza and the State also had a
broader unwritten immunity agreement that was undisclosed
at trial. According to Ayala, the State verbally guaranteed it
would not prosecute Meza for “anything else [that] came up”
during Meza’s discussions with the district attorneys about
Ayala’s case, including past assaults, stabbings, and
potentially a murder. Ayala also argues that the unwritten
agreement guaranteed Meza’s immediate release from
custody.
The record does not support Ayala’s contention that a
broad unwritten agreement ever existed. Ayala’s lawyer
conceded at oral argument that the only evidence of a
“sidebar” immunity agreement is Meza’s 2010 evidentiary
hearing testimony. That testimony consisted mostly of Meza
responding “yes” to leading questions from Ayala’s lawyer:
Q: And part of the agreement was that you
would be sentenced to four years, but after
you testified you would be released?
A: Mm-hmm.
Q: Is that yes?
AYALA V. CHAPPELL 47
A: Yes.
Q: Do you recall also there was some
considerable conversation about immunity,
that you would be given what is called use
and derivative immunity; is that right?
A: Yes.
Q: Just as you sit here today — first of all, do
you recall that that was part of the deal, too,
was that if you talk to the DA you would be
given use and derivative immunity?
A: Mm-hmm.
Q: Is that yes?
A: Yes.
Q: Your recollection, sir, or your
understanding of use and/or derivative
immunity, what was that? What did that
encompass?
A: I guess if anything else came up I wouldn’t
be charged with it, just in case.
Q: So just in case you were considered, say, a
suspect in the 43rd Street robberies and
murders, you wouldn’t be charged; is that
right?
A: Mm-hmm.
48 AYALA V. CHAPPELL
Q: Yes?
A: Yes.
...
Q: So if anything else came up while you
were talking to Dellatore, you wouldn’t be
charged with any of those things either?
A: Yes.
Contrary to Ayala’s claim 76, Meza also testified that, years
before Ayala’s trial, the State declined to prosecute him for
crimes he committed in prison because “they just couldn’t
prove it,” not because of a sweeping, unwritten immunity
deal he received in exchange for testifying against Ayala.
The record is likewise inconsistent with Ayala’s argument
that the State promised Meza immediate release from
custody: Exhibits introduced at the 2010 hearing establish
that the prosecution requested Meza be resentenced on his
February 1987 drug arrest, not that any reduction was
guaranteed. This Brady claim also fails because Ayala’s trial
lawyers knew Meza was testifying in the hope of receiving a
reduction in his jail time. Because Meza’s 2010 testimony
does not persuade us that the State guaranteed Meza
immunity or benefits beyond that which it disclosed in 1988,
we decline to stay Ayala’s federal case, deny claim 76 on the
merits, and deny as moot Ayala’s request for a COA.
B. Ayala’s certified Brady claims
In his certified Brady claims, Ayala argues: (1) “the
prosecution failed to disclose all material information
AYALA V. CHAPPELL 49
regarding its use of jailhouse snitches with known gang
affiliations, including but not limited to Juan Meza”;
(2) “[t]he prosecution was aware that Juan Meza had a long
term informant relationship with Detective Chacon and that
in the years preceding the trial Meza had received favors
and/or sweetheart deals for a number of criminal offenses,
and that said consideration had been instigated by Detective
Chacon”; and (3) the State concealed evidence that Chacon
and Meza met several times before Meza decided to testify
about his role in planning the 43rd Street murders.
The state court record shows that the government did not
conceal this information about Meza. In fact, in his
Exhaustion Petition, Ayala asserted that defense counsel
knew (and failed to use for impeachment purposes) many
facts about Meza that Ayala now claims the government
suppressed. The Exhaustion Petition averred:
[Defense counsel] were aware that:
A. Juan Meza and Detective Carlos Chacon
knew each other since 1965; . . .
C. Whenever Juan Meza was incarcerated
Detective Chacon would visit him; and
these visits were generally unannounced;
D. As a result of this “relationship” . . .
Detective Chacon had kept a file on Juan
Meza for the ten years preceding the trial;
E. Juan Meza had been a prosecution
informant, who received benefits of
50 AYALA V. CHAPPELL
shortened and/or lenient sentences for his
criminal offenses;
F. Meza . . . had been in the Mexican Mafia,
however he was currently considered a
drop out[; and]
G. [V]ery soon after the April 26, 1985
killings, Detective Chacon had visited Meza,
while incarcerated, a number of times, but that
it was not until February, 1987, after Juan
Meza was due to be sentenced to a term of
four years in the state penitentiary, and after a
visit from Detective Chacon, that Juan Meza
surfaced as a witness in the case.
Either counsel knew about these facts and allegations and
failed to use them, or the State concealed this information
from counsel; Ayala cannot have it both ways.
The trial transcript confirms that counsel knew these facts
and allegations. Meza testified outside the jury’s presence
that he had known Chacon since childhood, and that Chacon
frequently visited him in jail. Meza confirmed that Chacon
visited him in jail in May or June 1985 but he denied that he
and Chacon discussed Meza’s involvement in the 43rd Street
murders at that meeting. Chacon visited Meza again in
February 1987, shortly after Meza was arrested on the
unrelated drug charge, and Meza gave Chacon some
information about the 43rd Street murders. By April 1987,
Meza admitted that he was involved in planning the murders,
and by May of that year, Meza told Chacon that he had
decided to testify against the Ayalas. Defense counsel
questioned Meza about previous “sweetheart” deals he
AYALA V. CHAPPELL 51
received because of his relationship with Chacon, but Meza
repeatedly denied the existence of such deals, and Ayala
points to no evidence that other deals were actually made.
Because Ayala has not established that the State suppressed
the information that underpins his certified Brady claims, the
state court’s summary denial of them was not unreasonable.
See Sedaghaty, 728 F.3d at 899 (to establish a Brady
violation, defendant must show that evidence was
“suppressed by the government”).
IV. Brady claims regarding Detective Chacon
Ayala next claims the State violated Brady by concealing
evidence that Detective Carlos Chacon had a longstanding
bias against the Ayala brothers.15 Ayala first presented this
claim to the California Supreme Court in his Exhaustion
Petition, and the California court summarily denied it. The
district court granted the State’s motion for summary
judgment on this claim, concluding that the California
Supreme Court’s application of Brady was reasonable under
28 U.S.C. § 2254(d)(1). We affirm.
In support of the claim that Detective Chacon was biased
against the Ayala brothers, Ayala alleged the following to the
California Supreme Court: (1) Chacon had a long-standing
personal grudge against the Ayalas stemming from his belief
that the Ayalas were involved in the 1977 murder of
Chacon’s close friend, Eduardo Cruz; (2) Chacon previously
accused the Ayalas of “complicity in many murders previous
to the 43rd Street murders”; (3) Chacon was related by
marriage to the Sosa family, whose gang—Nuestra Familia—
was a rival of the Mexican Mafia’s; and (4) the district
15
This argument corresponds to claim 5.
52 AYALA V. CHAPPELL
attorneys in charge of Ayala’s case considered removing
Chacon from the investigation. Ayala submitted a declaration
by defense investigator Hart to support these allegations. In
it, investigator Hart attested “on information and belief” that
Chacon was biased against the Ayalas for each of these
reasons.
The state court reasonably rejected this Brady claim
because Ayala presented no evidence to substantiate his
allegation that Detective Chacon harbored bias against him.
The spare allegations in Ayala’s petition and Hart’s
unexplained “information and belief” did not identify any
evidence the prosecution withheld that might have suggested
bias, nor do they describe how Hart had personal knowledge
of such bias. See Cal. Evid. Code § 702(a) (“[T]he testimony
of a witness concerning a particular matter is inadmissible
unless he has personal knowledge of the matter.”).16 With
nothing more, the California court need not have determined
whether a Brady violation occurred or prejudice resulted. Cf.
Milke v. Ryan, 711 F.3d 998, 1008 (9th Cir. 2013) (granting
relief when “Milke presented the state court with hundreds of
pages of court records from cases where [the officer] had
committed misconduct, either by lying under oath or by
violating suspects’ Miranda and other constitutional rights
during interrogations”). We addressed a similarly sparse
petition in Runningeagle v. Ryan and explained that “to state
a Brady claim, [a petitioner] is required to do more than
‘merely speculate’ about” the withheld evidence. 686 F.3d
16For the reasons stated in the next section, we also affirm the district
court’s dismissal of claim 5 to the extent Ayala argues that the state
concealed evidence that Chacon intimidated Rafa and Jenifer Mendoza
Lopez (Rafa’s wife). Because Ayala did not establish that the witnesses
were intimidated, we conclude there was nothing to disclose.
AYALA V. CHAPPELL 53
758, 769 (9th Cir. 2012); see also Duvall, 886 P.2d at 1258(“The petition should both (i) state fully and with particularity
the facts on which relief is sought, as well as (ii) include
copies of reasonably available documentary evidence
supporting the claim, including pertinent portions of trial
transcripts and affidavits or declarations.” (citations
omitted)). Ayala’s failure to identify evidence the State
withheld convinces us that the state court reasonably applied
Brady when it denied this claim.17
V. Witness intimidation
Ayala’s next claim is primarily a due process-based
witness intimidation claim. Ayala argues that Detective
Chacon intimidated and threatened Rafa and his wife, Jenifer,
and that Rafa recanted his testimony in favor of Ayala as a
result of the threats and intimidation. Ayala also asserts that
the State violated Napue v. Illinois, 360 U.S. 264 (1959), by
failing to correct Rafa’s testimony that Detective Chacon did
not threaten him.18
17
Evidence adduced at the 2010 hearing does not change this
conclusion. Cf. Gonzalez, 667 F.3d at 979. In his 2010 testimony,
Chacon denied harboring any bias against the Ayalas. He explained that
he suspected them of the 43rd Street murders and several other murders
based on his study of their actions and whereabouts in his capacity as a
gang intelligence officer. Defense counsel knew of these suspicions
because she subpoenaed Chacon’s notes from the night of the murder.
The Ayalas also knew that Chacon suspected them of an earlier murder
because Chacon was actively involved in its investigation. In short, the
2010 evidence does not show that the State concealed exculpatory
evidence about Detective Chacon.
18
Ayala draws this issue from claims 4 and 8 (which both relate to
witness intimidation) and claim 12 (which is a general Napue claim).
54 AYALA V. CHAPPELL
As explained, when Ayala initially called Rafa as a
defense witness, Rafa’s testimony implicated Pete Castillo in
the 43rd Street murders and tended to exonerate the Ayalas.
Shortly after Rafa testified for Ayala, Detective Chacon
visited him in jail, and accused him of lying in court to
benefit Ayala. After some discussion about the risks Rafa
would face from gangs upon his return to prison, Rafa
admitted to Chacon that he lied, and agreed to recant his
testimony. Rafa’s rebuttal testimony exonerated Castillo and
implicated the Ayalas in the 43rd Street murders.19
Webb v. Texas, 409 U.S. 95 (1972) (per curiam), is the
clearly established law governing claims of witness
intimidation by government officials. In Webb, the trial judge
strongly admonished a defense witness about the risks of
perjury before the witness testified. Id. at 95–96. The judge
singled out this witness, telling him:
If you take the witness stand and lie under
oath, the Court will personally see that your
case goes to the grand jury and you will be
indicted for perjury and the liklihood (sic) is
that you would get convicted of perjury and
that it would be stacked onto what you have
already got, so that is the matter you have got
to make up your mind on.
Id. at 96. The witness chose not to testify. Id. The Supreme
Court reversed Webb’s conviction because “the unnecessarily
strong terms used by the judge could well have exerted such
19
Ayala raised these witness intimidation and Napue claims before the
California Supreme Court in his Exhaustion Petition, and the court
summarily denied them. The district court likewise denied relief.
AYALA V. CHAPPELL 55
duress on the witness’ mind as to preclude him from making
a free and voluntary choice whether or not to testify.” Id. at
98. Because the judge’s remarks “effectively drove that
witness off the stand,” the judge violated the defendant’s due
process right to present a defense, and reversal of his
conviction was warranted. Id. Under Webb, “[i]t is well
established that ‘substantial government interference with a
defense witness’s free and unhampered choice to testify
amounts to a violation of due process.’” Earp v. Ornoski,
431 F.3d 1158, 1170 (9th Cir. 2005) (quoting United States
v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998)).
The California Supreme Court’s rejection of Ayala’s
witness intimidation claim was not contrary to or an
unreasonable application of Webb. See 28 U.S.C.
§ 2254(d)(1). The California court had before it Rafa’s trial
testimony and Hart’s declaration when it decided this claim.
Hart declared “that Detective Chacon threatened, coerced,
manipulated and/or intimidated potential and actual
witnesses, including but not limited to” Rafa, and alleged that
Chacon accomplished this coercion in part by threatening to
investigate Rafa’s wife Jenifer for smuggling drugs into
prison. Standing alone (and taken as true), these allegations
could amount to “substantial . . . interference” with Rafa’s
choice to testify. See Earp, 431 F.3d at 1170. But Hart’s
declaration does not provide sources for its conclusions, and
it was directly contradicted by Rafa’s 1988 trial testimony
that Chacon did not threaten him. Rafa denied that Chacon
told him he was on a hit list and testified that he always knew
his life was in danger because of his involvement with gangs.
He told the jury “[t]he only thing [Chacon] said [was] . . . ‘I
don’t see why you’re helping these people out when you
know’ — ‘they’ — you know, ‘they don’t care about you,’
you know.” Rafa also denied that Chacon threatened Jenifer
56 AYALA V. CHAPPELL
as a way of pressuring him to recant. Rather, he explained
that he originally testified for the defense as a favor, but was
motivated to recant because, despite his promise to testify,
people associated with Ayala tried to engage Jenifer in illegal
activity:
But, you know, after I testified and these
people started calling my wife, you know,
they wanted her — told her, you know, that I
had put him in a spot. They wanted her to go
visit somebody else in prison to take them
drugs and — . . . so I told them — I started
thinking, ‘man, I do these guys all these
favors,’ you know, ‘and they don’t show me
no kind of respect,’ you know.
Defense counsel vigorously cross-examined Rafa about
whether Chacon threatened or intimidated him into recanting
his testimony, but Rafa consistently denied that this was the
case. With nothing to support Hart’s allegations, the
California court did not unreasonably apply Webb when it
rejected Ayala’s witness intimidation claim.20
Nor did the California Supreme Court misapply federal
law when it rejected Ayala’s Napue claim. See Napue,
360 U.S. at 269 (“[A] conviction obtained through use of
false evidence, known to be such by representatives of the
20
Evidence adduced at the 2010 hearing did not strengthen Ayala’s
witness intimidation claim. Both Jenifer and Rafa testified at the hearing
consistent with Rafa’s trial testimony. Rafa testified that Chacon and the
district attorneys “didn’t threaten me or they didn’t pressure me to come
back and testify against Ronnie.” Jenifer likewise denied that Chacon
threatened to investigate her for smuggling drugs.
AYALA V. CHAPPELL 57
State, must fall under the Fourteenth Amendment.”). Ayala
only offers Hart’s declaration to buttress the allegation that
Rafa lied in his recanted testimony, and, as discussed, Rafa’s
testimony refutes this charge. The California Supreme Court
reasonably denied this claim.21
VI. Other alleged trial court errors
Ayala argues that the trial court committed several other
errors that deprived him of certain federal constitutional
rights. We address each alleged error in turn.
A. Refusal to strike juror Cosgove for cause
Ayala argues that the trial court committed constitutional
error when it declined to strike juror Cosgrove for cause.22
According to Ayala, juror Cosgrove was predisposed to vote
for the death penalty and his presence on the jury violated
Ayala’s due process right to a fair and impartial jury. The
California Supreme Court rejected this argument on direct
appeal, see Ayala, 1 P.3d at 24–25, and the district court
denied federal habeas relief.
Morgan v. Illinois, 504 U.S. 719 (1992), is the clearly
established law applicable to this biased-juror claim. Morgan
21
Ayala likewise argues that the State violated Webb, Napue, and Brady
because it failed to disclose “a pattern of intimidation and threats directed
at [potential prosecution witnesses Richard Buchanan and Mario Marin],
in an effort that each testify falsely against Ayala.” This argument fails.
Ayala did not mention Marin before the state court, and Buchanan refused
to testify. Thus, even if Chacon threatened Buchanan, Ayala cannot
establish prejudice.
22
This argument corresponds to claim 47.
58 AYALA V. CHAPPELL
holds that “[a] defendant has a constitutional due process
right to remove for cause a juror who will automatically vote
for the death penalty.” See United States v. Mitchell,
502 F.3d 931, 954 (9th Cir. 2007) (citing Morgan, 504 U.S.
at 719).
The California Supreme Court’s rejection of this claim
was not contrary to or an unreasonable application of Morgan
because juror Cosgrove was not an automatic death penalty
voter. Cosgrove told counsel during voire dire that he “would
probably be 80 percent to 20 percent saying that if [he] felt
that somebody did commit murder, that the death penalty
should be applied,” but he also said that “if there were
mitigating circumstances, [he] would take them into effect
and weigh them.” Habeas relief is not warranted on this
claim. See Mitchell, 502 F.3d at 955 (affirming on plain error
review the district court’s decision not to dismiss for cause a
juror who “indicated that she thought the only punishment for
certain kinds of ‘horrific’ crimes should be death” but later
“qualified that response by indicating ‘well, death or
imprisonment’” and promised to keep an open mind); United
States v. Fulks, 454 F.3d 410, 428 (4th Cir. 2006) (district
court did not abuse its discretion by letting a juror serve
despite his statement that he would vote for the death penalty
in a murder case “say 90 percent of the time . . . unless [the
mitigating circumstances are] something outrageous”).23
23
For the same reason, we affirm the district court’s denial of relief on
claim 34, in which Ayala argues that trial counsel was ineffective for
failing to use a peremptory strike on juror Cosgrove. “Establishing
Strickland prejudice in the context of juror selection requires a showing
that, as a result of trial counsel’s failure to exercise peremptory challenges,
the jury panel contained at least one juror who was biased.” Davis v.
Woodford, 384 F.3d 628, 643 (9th Cir. 2004). Ayala has not established
AYALA V. CHAPPELL 59
B. Exclusion of deceased witness’s statements
Ayala argues that the trial court violated his constitutional
right to present a defense when it excluded under California’s
hearsay rules the exculpatory statements of a deceased
witness, Arthur Castro.24
During trial, Ayala moved to admit statements that Castro
made to defense investigator Bill Papenhausen. The defense
proffered Papenhausen to testify that Castro heard two people
arguing in Spanish with Dominguez about a large sum of
money on the day before the murders, and that Castro later
saw “three males driving away in a large car with blue and
white Mexican plates.” The trial court denied Ayala’s motion
to admit Papenhausen’s testimony under California’s residual
hearsay rule. See Ayala, 1 P.3d at 28–29. The California
Supreme Court affirmed this ruling on direct review, see id.at 27–30, and the district court denied federal habeas relief.
Chambers v. Mississippi, 410 U.S. 284 (1973), is the
applicable “clearly established Federal law.” See 28 U.S.C.
§ 2254(d)(1). In Chambers, the Supreme Court held that a
state court may not prohibit a defendant from presenting
directly exculpatory evidence when the evidence is essential
to the defendant’s case and bears sufficient indicia of
reliability. See 410 U.S. at 300–01. The facts in Chambers
were extreme: After police officers arrested Leon Chambers
for murder, his friend, Gable McDonald, confessed to three
different people that he, not Chambers, committed the crime.
that juror Cosgrove was biased, so he cannot satisfy Strickland’s prejudice
prong under AEDPA’s deferential standard.
24
This argument corresponds to claim 44.
60 AYALA V. CHAPPELL
Id. at 288–89. The trial court prohibited Chambers from
presenting the testimony of these three witnesses under a
Mississippi common-law evidentiary rule. Id. at 289.
Without this evidence, the jury convicted Chambers of
murder. Id. at 285. The Supreme Court reversed the
conviction, holding “the exclusion of this critical evidence . . .
denied [Chambers] a trial in accord with traditional and
fundamental standards of due process.” Id. at 302. The Court
rejected Mississippi’s argument that McDonald’s prior
confessions were hearsay and therefore unreliable because the
confessions bore substantial indicia of reliability: they were
against McDonald’s penal interest, corroborated by other
evidence, spontaneous, and McDonald was available for
cross-examination. Id. at 300–01.
Fairminded jurists could disagree about whether the
California Supreme Court’s resolution of this claim was
contrary to or an unreasonable application of Chambers. See
Bemore, 788 F.3d at 1160 (discussing AEDPA’s deferential
standard). Evidence falls within Chambers’s admissibility
rule only when its exclusion “significantly undermine[s]
fundamental elements of the defendant’s defense.” United
States v. Scheffer, 523 U.S. 303, 315 (1998). Here, while
Castro’s account of three Mexican men at the body shop
supported defendant’s theory of the case, it was not directly
exculpatory like the confession in Chambers. See 410 U.S.
at 297 (trial court’s ruling effectively prevented Chambers
“from exploring the circumstances of McDonald’s three prior
oral confessions”); see also Scheffer, 523 U.S. at 316(observing that “Chambers specifically confined its holding
to the ‘facts and circumstances’ presented in that case”).
Also, Castro’s statement had fewer indicia of reliability than
the statement in Chambers because Castro told his story to a
defense investigator who was assisting with trial preparation,
AYALA V. CHAPPELL 61
not “spontaneously to a close acquaintance.” Chambers,
410 U.S. at 300. Although Castro did inculpate himself by
admitting to heroin use, this statement was much less
inculpatory than the one at issue in Chambers, where the
declarant admitted to murder. Id. at 300–01. Finally, unlike
the declarant in Chambers, Castro was not available for cross-
examination. Id. at 301. The California court reached these
same conclusions in its review of this claim. Ayala, 1 P.3d at29–30. We cannot say that its decision was unreasonable, so
Ayala is not entitled to habeas relief. Andrews, 798 F.3d at
773 (“When a state court may draw a principled distinction
between the case before it and Supreme Court caselaw,”
federal habeas relief is not available).
C. Prosecutorial misconduct during closing arguments
In his closing arguments, the prosecutor told the jury that
several witnesses, including Meza, Castillo, Rafa, and
Eduardo “Lalo” Sanchez,25 made inconsistent statements
because they were afraid of Ayala and “those people who
associated with the defendant.” Ayala, 1 P.3d at 40. Ayala
argues that this and other similar statements in the
prosecutor’s closing argument violated his constitutional
rights “because the prosecution improperly attempted to
inject gang issues into the trial.”26 He separately argues that
trial counsel was ineffective for failing to object to the
25
Sanchez lived next door to the body shop and was one of the State’s
trial witnesses. To the apparent surprise of the prosecutor, Sanchez
testified that he heard nothing on the night of the murders.
26
This argument corresponds to claim 7.
62 AYALA V. CHAPPELL
allegedly improper statements.27 The California Supreme
Court dismissed these arguments on direct review, see Ayala,
1 P.3d at 34–35, 40–41, and the district court denied federal
habeas relief.
Darden v. Wainwright, 477 U.S. 168 (1986), is the
relevant clearly established federal law. In Darden the Court
“explained that a prosecutor’s improper comments will be
held to violate the Constitution only if they ‘so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.’” Parker v. Matthews, 132 S. Ct. 2148,
2153 (2012) (quoting Darden, 447 U.S. at 181). Darden
creates a “general” standard, giving state courts “more
leeway” to apply it. Id. at 2155 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
The California Supreme Court’s rejection of Ayala’s
misconduct claim was not an unreasonable application of
Darden because the prosecutor’s statements that several
witnesses feared Ayala were reasonably drawn from the
witnesses’ testimony. See Trillo v. Biter, 769 F.3d 995, 1002
(9th Cir. 2014) (prosecutors are entitled to make reasonable
inferences from the facts). Castillo told the jury that he “had
worries, concern for my family. There was just three people
shot, and I was shot and almost killed. . . . There was some
people out there that actually kill people.” Rafa told the jury
that he originally testified for Ayala in part because “I was
afraid that if I, you know, didn’t want to cooperate with them
. . . I might, you know, get killed or something.” Meza
likewise explained that, although he helped plan the 43rd
Street robbery, he did not participate because he feared the
Ayalas would use the opportunity to kill him.
27
This argument corresponds to claim 26.
AYALA V. CHAPPELL 63
Also, the prosecutor’s closing argument adhered to the
trial court’s order concerning the admissibility of gang
affiliation evidence. He did not mention gangs, the Mexican
Mafia, or the EME, but instead argued that witnesses were
afraid of “what the defendant stood for” and “those with
whom the defendant associates.” The jury could have
understood these statements to mean that Ayala was a gang
member, but it also could have understood them to mean that
witnesses feared Ayala simply because he had been accused
of triple murder. The prosecutor’s comments about fear and
association were not so prejudicial that they undermined the
fundamental fairness of Ayala’s trial. “Indeed, Darden itself
held that a closing argument considerably more inflammatory
than the one at issue here did not warrant habeas relief.”
Parker, 132 S. Ct. at 2155; Darden, 477 U.S. at 180 nn.9–11.
Habeas relief is not warranted on this claim.
Nor was it unreasonable for the California Supreme Court
to reject Ayala’s related IAC claim. Counsel “was not
constitutionally ineffective for failing to object to the
prosecutorial statements . . . [because t]hose statements were
based on reasonable inferences from the record.” See Trillo,
769 F.3d at 1002; see also Cunningham v. Wong, 704 F.3d
1143, 1159 (9th Cir. 2013) (“[A]bsent egregious
misstatements, the failure to object during closing argument
and opening statement is within the ‘wide range’ of
permissible professional legal conduct.” (quoting United
States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993))).
D. Penalty-phase admission of the John Casas murder
In the penalty phase, the trial court permitted the State to
submit evidence that, nearly ten years before trial, Ayala
murdered an inmate named John Casas while the two were
64 AYALA V. CHAPPELL
incarcerated together.28 Ayala argues this was constitutional
error because the state never charged him with this crime and
“[t]he extensive pre-trial delay in prosecuting Ayala for the
alleged Casas murder led to Ayala’s demonstrable inability to
present exculpatory evidence which would have and should
have exonerated him had the allegations been timely
brought.”
Habeas relief is not warranted on this claim because
Ayala has not shown he suffered prejudice from the
government’s delay in holding him accountable for the Casas
murder. See United States v. Lovasco, 431 U.S. 783, 784,
795–96 (1977) (a due process claim based on “a delay
between the commission of an offense and the initiation of
prosecution” requires defendant to establish prejudice and
fault on the part of the government). Ayala claims he
suffered prejudice because he “lost” an exculpatory witness
during the eight years that passed between the Casas murder
and the penalty phase of his trial. According to Ayala, this
witness would have testified that he saw another inmate with
a knife “about ten minutes before the [Casas] stabbing.” But
this account is not suggestive of Ayala’s innocence,
particularly when set against the State’s two witnesses, both
of whom testified that they saw Ayala stab Casas. Ayala’s
inability to show prejudice from this delay is fatal to his due
process claim. Id.28
This argument corresponds to claim 39. Ayala presented this
argument to the California Supreme Court on direct review, the California
court rejected it, Ayala, 1 P.3d at 49, and the district court denied federal
habeas relief.
AYALA V. CHAPPELL 65
VII. Cumulative error
Ayala next argues that the cumulative impact of his
lawyers’ deficiencies, the State’s Brady violations, Detective
Chacon’s intimidation of witnesses, and the trial court’s
errors requires reversal of his conviction.29 We have
previously recognized that “[a]lthough individual errors may
not rise to the level of a constitutional violation, a collection
of errors might violate a defendant’s constitutional rights.”
Woods, 764 F.3d at 1139 (quoting Davis, 384 F.3d at 654).
Here, we do not agree that Ayala has suffered such prejudice.
Any errors made by trial counsel, the trial court, or the
government in Ayala’s case were minor and “did not render
[Ayala’s] trial fundamentally unfair.” See Davis, 384 F.3d at
654. Further, if Ayala suffered any injustice at trial, it was
rectified by the district court’s thorough handling of his
federal habeas petition. The district court’s evidentiary
hearing spanned twenty days and thoroughly aired Ayala’s
most meritorious claims (an opportunity most federal habeas
petitioners are denied post-Pinholster). During this hearing,
the court took testimony from former witnesses, counsel, and
investigators on Ayala’s case and admitted dozens of
exhibits. The experienced district judge painstakingly
reviewed Ayala’s evidence, and was convinced that Ayala’s
conviction and sentence were not the product of an unfair
trial. We agree with Judge Moskowitz’s conclusion.
29
This argument corresponds to claim 2.
66 AYALA V. CHAPPELL
VIII. Actual innocence
Ayala’s final claim is that he is actually innocent of these
murders.30 The Supreme Court has assumed that a
freestanding innocence claim is cognizable on federal habeas
review, but it has noted that “the threshold showing for such
an assumed right would necessarily be extraordinarily high.”
Herrera v. Collins, 506 U.S. 390, 417 (1993). Ayala does not
meet this high threshold of proof. Neither the evidence
before the state court nor the evidence adduced at the 2010
evidentiary hearing supports Ayala’s contention that key
witnesses against him lied at the behest of the government.
Nor does the record support Ayala’s claim that the
prosecution withheld essential evidence about Meza’s
immunity agreement or relationship with Detective Chacon.
The evidence Ayala introduced in 2010 to support his habeas
petition is much less compelling than that submitted by the
petitioner in Herrera. See id. at 396–98 (denying Herrera’s
actual innocence claim even though several individuals,
including one eyewitness, submitted affidavits claiming that
Herrera’s brother committed the murders for which Herrera
had been convicted). The Supreme Court’s denial of
Herrera’s freestanding innocence claim urges the same result
here, and the California court’s dismissal of this claim was
therefore not unreasonable. See 28 U.S.C. § 2254(d)(1).
30
This argument corresponds to claim 1. Ayala presented this claim in
his Exhaustion Petition, the California Supreme Court summarily denied
it, and the district court denied relief.
AYALA V. CHAPPELL 67
CONCLUSION
For the foregoing reasons, we affirm the district court’s
denial of Ayala’s petition for writ of habeas corpus.
AFFIRMED.