Jaime Hoyos v. Ronald Davis ( 2022 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    SEP 2 2022
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JAIME HOYOS,                                     No.   17-99009
    Petitioner-Appellant,              D.C. No.
    3:09-cv-00388-L-NLS
    v.
    RONALD DAVIS, Warden, California                 MEMORANDUM*
    State Prison at San Quentin,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Southern District of California
    M. James Lorenz, District Judge, Presiding
    Argued and Submitted March 23, 2022
    Pasadena, California
    Before: IKUTA, CHRISTEN, and BUMATAY, Circuit Judges.
    Jaime Hoyos appeals the district court’s denial of his 
    28 U.S.C. § 2254
    habeas corpus petition in which he sought relief from his state-court convictions
    and death sentence. Hoyos raises several certified claims on appeal. We address
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    all but his Batson claim here.1 We have jurisdiction pursuant to 
    28 U.S.C. §§ 1291
    and 2253, and we affirm the district court’s denial of Hoyos’s habeas petition.
    We review de novo a district court’s denial of a federal habeas petition.
    Kipp v. Davis, 
    971 F.3d 939
    , 948 (9th Cir. 2020). Pursuant to the Antiterrorism
    and Effective Death Penalty Act of 1996 (AEDPA), we defer to the last state-court
    decision on the merits of any claim unless that decision was “contrary to, or
    involved an unreasonable application of, clearly established Federal law, as
    determined by the Supreme Court of the United States,” or was “based on an
    unreasonable determination of the facts in light of the evidence presented in the
    State court proceeding.” Staten v. Davis, 
    962 F.3d 487
    , 494 (9th Cir. 2020)
    (quoting 
    28 U.S.C. § 2254
    (d)). Here, we review the California Supreme Court’s
    ruling on direct appeal. See Wilson v. Sellers, 
    138 S. Ct. 1188
    , 1192 (2018).2
    1. Hoyos raises multiple claims regarding jailhouse informant George
    Jimenez, who made statements to law enforcement regarding co-defendant Jorge
    Emilio Alvarado’s participation in the Magoon murders. First, Hoyos argues that
    1
    See Batson v. Kentucky, 
    476 U.S. 79
     (1986). We address Hoyos’s Batson
    claim in a concurrently filed published opinion. Hoyos also included three
    uncertified claims in his opening brief as an application to expand the Certificate of
    Appealability (COA). See Fed. R. App. P. 22(b)(2); Ninth Cir. R. 22-1(e). We
    decline to grant a COA as to those three claims.
    2
    Because the parties are familiar with the facts, we recite only those
    necessary to decide the appeal.
    2
    his constitutional rights to due process, to testify, and to receive a fair trial were
    violated when the trial court denied his motion to sever his trial from Alvarado’s
    trial, and that the California Supreme Court’s rejection of this claim was an
    unreasonable application of United States Supreme Court precedent. Jimenez’s
    statements did not directly implicate Hoyos, but Hoyos claims the statements
    impacted his right to testify because he and his co-defendant made a joint decision
    whether to testify: “It was either both or none.” The California Supreme Court
    concluded Hoyos’s arguments lacked merit because the trial court ruled the
    Jimenez statements were only admissible if Alvarado testified and nothing in the
    statements precluded Hoyos from testifying. See People v. Hoyos, 
    162 P.3d 528
    ,
    547 (Cal. 2007).
    “[T]here is no clearly established federal law requiring severance of criminal
    trials in state court,” Runningeagle v. Ryan, 
    686 F.3d 758
    , 774 (9th Cir. 2012), and
    Hoyos does not identify any clearly established Supreme Court precedent
    supporting his position that the California Supreme Court violated his
    constitutional rights. Even assuming that the California Supreme Court erred,
    Hoyos has not demonstrated that any error had a “substantial and injurious effect
    or influence” on the verdict. Brecht v. Abrahamson, 
    507 U.S. 619
    , 637–38 (1993).
    Therefore, we affirm the district court’s denial of this claim.
    3
    Second, Hoyos argues the prosecution’s delayed disclosure of the Weil
    Report deprived him of his due process rights in violation of Brady v. Maryland,
    
    373 U.S. 83
     (1963). Hoyos contends the California Supreme Court’s decision
    refuting this claim was an unreasonable determination of the facts in light of an
    “undisputed record.” According to Hoyos, the record is unequivocal that neither
    Hoyos nor Alvarado testified “because of Alvarado’s direct vulnerability to
    impeachment by the Jimenez statements,” and he argues that both defendants
    would have testified if the Weil Report had been timely disclosed because it was
    significant impeachment evidence. The district court concluded the California
    Supreme Court’s determination was not unreasonable because it was not certain
    that Hoyos actually would have testified if he had received the Weil Report and
    because Hoyos failed to show how his testimony would have changed the outcome
    at trial.
    To succeed on his Brady claim, Hoyos was required to establish that: (1) the
    withheld evidence was favorable to him “because it is exculpatory, or because it is
    impeaching”; (2) the evidence was “suppressed by the State, either willfully or
    inadvertently”; and (3) he was prejudiced as a result. Strickler v. Greene, 
    527 U.S. 263
    , 281–82 (1999). A Brady claim is not meritorious “unless the nondisclosure
    was so serious that there is a reasonable probability that the suppressed evidence
    4
    would have produced a different verdict.” 
    Id. at 281
    ; see also United States v.
    Bagley, 
    473 U.S. 667
    , 682 (1985). Hoyos’s argument focuses on the prejudice
    prong, but he does not explain how his testimony would have changed the outcome
    at trial, and it was not unreasonable for the California Supreme Court to decide that
    the impact of the Weil Report on Hoyos’s decision to testify was “highly
    speculative,” Hoyos, 
    162 P.3d at 565
    , given both the nature of the report and
    Hoyos’s trial counsel’s statements regarding what Hoyos’s testimony would have
    been. Whether Hoyos would have testified is even more doubtful given his
    repeated insistence that he would not have testified unless his co-defendant
    testified, and it is speculative whether earlier disclosure of the Weil Report would
    have caused Alvarado to testify. Accordingly, we affirm the district court’s
    decision that the California Supreme Court’s decision was not based on an
    unreasonable determination of the facts.3
    Third, Hoyos contends he was denied his right to effective assistance of
    counsel by the delayed disclosure of the Weil Report because his trial counsel were
    “deficient in their efforts to affirmatively investigate and impeach informant
    Jimenez.” The district court concluded that Hoyos likely failed to exhaust this
    3
    Hoyos also argues the alleged Brady violation resulted in a violation of his
    right to testify, but for the same reasons his right-to-testify claim related to his
    severance claim fails, it fails under the Brady theory as well.
    5
    claim because he did not raise it in the state courts.4 The district court said it
    considered the claim de novo pursuant to 
    28 U.S.C. § 2254
    (b)(2), yet it ultimately
    concluded that the California Supreme Court’s rejection of the claim “was neither
    contrary to, nor an unreasonable application of, Strickland.” On appeal, Hoyos
    does not address how this claim was properly exhausted.
    We exercise our discretion to reach the merits of his unexhausted claim. See
    Gatlin v. Madding, 
    189 F.3d 882
    , 889 (9th Cir. 1999) (acknowledging that
    pursuant to § 2254(b)(2) a court may deny a habeas petition by reaching the merits
    of unexhausted claims, but explaining it is not required to do so); Runningeagle,
    686 F.3d at 777 n.10 (same); cf. Buckley v. Terhune, 
    441 F.3d 688
    , 694 (9th Cir.
    2006) (en banc) (“We may affirm on any ground supported by the record, even if it
    differs from the rationale used by the district court.”). To establish that his
    counsel’s conduct rose to the level of a constitutional deprivation, Hoyos was
    required to show that: (1) counsel’s performance was deficient; and (2) the
    4
    On direct appeal, Hoyos argued the late disclosure of the Weil Report
    “was prejudicial because it violated his right to receive meaningful guidance” from
    counsel about his decisions to testify. Hoyos, 
    162 P.3d at 565
    . The California
    Supreme Court explained that Hoyos did “not argue that his trial counsel [were]
    deficient because he failed to uncover the Jimenez impeachment evidence,” so,
    unlike the claim he raises here, in the state court there was “no issue of trial
    counsel’s not becoming aware of relevant evidence through counsel’s failure to
    conduct a reasonable investigation.” 
    Id.
    6
    deficient performance prejudiced his defense. See Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). As to the first prong, Hoyos does not explain how his
    counsel could have been aware of the possibility of undisclosed evidence, and, in
    doing so, he conflates his ineffective assistance of counsel claim with his Brady
    claim. As for prejudice, Hoyos shows neither that disclosure of the Weil Report
    would have caused him to testify nor how his testimony would have changed the
    outcome at trial. Instead, he asserts in a conclusory manner that had he “testified
    that he did not kill the Magoons, and if the defense had confronted the blood
    splatter evidence and other forensic evidence, there is a strong probability the
    outcome of the trial would have been very different.” At oral argument before our
    court, Hoyos’s counsel admitted that defense counsel used experts to cross-
    examine the state’s blood splatter expert at trial. We are not persuaded that Hoyos
    has established prejudice. Cf. Gentry v. Sinclair, 
    705 F.3d 884
    , 906 (9th Cir. 2013)
    (“Because we have held that none of the impeachment evidence argued in support
    of [the defendant’s] Brady claim is material, that analysis is dispositive of the
    prejudice prong of an ineffective assistance claim based on the same evidence.”).
    Even on de novo review, we affirm the district court’s denial of this claim because
    it fails under both prongs of Strickland.
    7
    2. Next, Hoyos raises several claims regarding evidence of third-party
    culpability related to the Luna brothers. He argues: (1) his counsel’s failure to
    adequately investigate the Luna brothers amounted to ineffective assistance of
    counsel, (2) the prosecution’s failure to provide information regarding the Luna
    brothers amounted to a Brady violation, and (3) these failures combined to infringe
    on his right to testify.
    We agree with the district court that Hoyos’s ineffective assistance of
    counsel claim regarding the Luna brothers fails.5 First, Hoyos’s trial counsel
    attempted to gather further information about David Luna but was unable to do so.
    Second, even assuming Hoyos could establish that counsel were deficient, we
    agree with the district court that Hoyos has not shown prejudice. “Evidence of
    third-party culpability is not admissible ‘if it simply affords a possible ground of
    suspicion against [another] person; rather, it must be coupled with substantial
    evidence tending to directly connect that person with the actual commission of the
    offense.’” People of Territory of Guam v. Ignacio, 
    10 F.3d 608
    , 615 (9th Cir.
    1993) (quoting Perry v. Rushen, 
    713 F.2d 1447
    , 1449 (9th Cir. 1983)). At most,
    5
    Hoyos raised the ineffective assistance of counsel claim in his second state
    habeas petition, and the California Supreme Court denied it both on the merits and
    as procedurally barred. The district court reviewed the merits of the ineffective
    assistance of counsel claim de novo.
    8
    Hoyos shows that third parties may have had motive and opportunity to kill the
    Magoons, but he does not provide any substantial evidence connecting a third party
    to the murders.
    As for the Brady claim concerning disclosure of information regarding the
    Luna brothers, the district court concluded Hoyos “fail[ed] to demonstrate that
    David Luna’s identifying information was itself either exculpatory or material.”
    But even assuming the prosecutor’s failure to disclose satisfied Brady’s
    suppression prong, Hoyos’s claim fails because he does not demonstrate prejudice
    for the same reasons he fails to demonstrate prejudice on his ineffective assistance
    of counsel claim.6
    Hoyos’s related right-to-testify claim fails because it is premised on his
    Brady and ineffective assistance of counsel claims. Accordingly, we affirm the
    district court’s denial of Hoyos’s habeas petition based on his claims related to the
    Luna brothers.
    6
    Hoyos also claims his state appellate counsel were ineffective for failing to
    raise a third-party culpability claim in Hoyos’s first state habeas petition. The
    district court concluded “such an argument fails to find support in clearly
    established law.” Post-conviction “counsel acts as the petitioner’s agent . . . and
    the petitioner must bear the risk of attorney error because there is no constitutional
    right to counsel in state [post-conviction] proceedings.” Detrich v. Ryan, 
    740 F.3d 1237
    , 1243–44 (9th Cir. 2013) (en banc) (internal quotation marks omitted)
    (quoting Coleman v. Thompson, 
    501 U.S. 722
    , 753 (1991)), cert. denied, 
    572 U.S. 1146
     (2014). We affirm the district court’s denial of this claim.
    9
    3. Hoyos also contends his trial counsel were ineffective because they failed
    to investigate and present other substantial exculpatory and impeaching evidence
    during the guilt phase. In particular, Hoyos argues trial counsel’s defense was: (1)
    inconsistent with the version of events that Hoyos offered; and (2) “predicated
    entirely on the putative existence of a sudden quarrel and shootout with Dan
    Magoon, without any comparable or complementary defense as to the murder of
    Mary Magoon.” Hoyos also challenges the efficacy of trial counsel’s blood
    splatter investigation. The district court denied this ineffective assistance of
    counsel claim, ruling that the California Supreme Court “could have reasonably
    rejected [the claim] based on [Hoyos’s] failure to satisfy Strickland’s performance
    prong” and based on Hoyos’s “failure to demonstrate prejudice.”
    First, we agree with the district court that Hoyos has failed to overcome the
    “strong presumption that counsel’s conduct falls within the wide range of
    reasonable professional assistance,” as is necessary to demonstrate that counsel’s
    performance was constitutionally deficient. Strickland, 
    466 U.S. at 689
    . As the
    district court observed, counsel’s decision to “assert self-defense or manslaughter
    for the murder of Daniel Magoon and second degree murder for Mary Magoon”
    was “clearly tactical” and “within the scope of ‘reasonable professional
    10
    assistance.’”7 As the district court noted, while “the evidence of Daniel Magoon’s
    propensity for violence was substantial, . . . the evidence concerning Mary was
    largely based on Hoyos’s speculative statement that she might have been going for
    a gun that evening.” Trial counsel attempted to introduce evidence of Mary
    Magoon’s familiarity with weapons, without success. Hoyos, 
    162 P.3d at 558
    .
    And any evidence that Mary Magoon had neglected her children, beyond the
    evidence of cocaine in her system that was presented to the jury, was too
    speculative and conclusory to support a propensity argument against her.
    Hoyos also argues that trial counsel erred in failing to elicit, from the
    Magoons’ seven-year-old son, that he knew Hoyos as a friend of his father and that
    Hoyos had not gone to his house on the night of the shootings. As the district court
    noted, the record shows that the Magoons’ son stated during interviews, and
    testified at trial, that he was asleep during the murders. We affirm the district
    7
    Hoyos contends that trial counsel should have presented evidence that
    Mary was involved in her husband’s drug business, was familiar with the use of
    firearms, and was a chronic drug user. Counsel did attempt to introduce some such
    evidence but decided to present evidence focused on Daniel’s propensity for
    violence, and we agree with the district court that this was a reasonable strategic
    decision. Further, the district court assumed, without deciding, that the trial court’s
    reservations about the introduction of evidence concerning Mary’s propensity for
    violence “amounted to an express ruling excluding that evidence,” but that Hoyos
    failed to demonstrate an abuse of discretion. We agree with the district court, and
    we decline to reach Hoyos’s uncertified claim challenging the exclusion of certain
    evidence concerning Mary.
    11
    court’s judgment that the failure to question the Magoons’ son about this
    inconsistency, given his age and traumatic experiences, “might be considered
    sound trial strategy.”
    As for the blood splatter evidence, Hoyos alleges trial counsel were deficient
    because they did not elicit evidence like that of retired law enforcement officer
    George Crawford. But as the district court noted, Crawford’s declaration was not
    part of the record in Hoyos’s state court proceedings, so we cannot consider it. See
    Cullen v. Pinholster, 
    563 U.S. 170
    , 181–82 (2011) (precluding a federal habeas
    court’s consideration of new evidence when reviewing a state court’s decision
    pursuant to 
    28 U.S.C. § 2254
    (d)). Moreover, the trial record shows that Hoyos’s
    counsel rebutted the prosecution’s blood splatter and DNA experts through
    “extensive” cross-examination and the use of their own experts, namely experts in
    criminalistics and DNA analysis. Without sufficient evidentiary support
    demonstrating how counsel’s response to the State’s blood splatter evidence was
    deficient and not strategic, Hoyos’s claim is no more than speculative. See
    Runningeagle, 825 F.3d at 984; see also Strickland, 
    466 U.S. at 689
     (“There are
    countless ways to provide effective assistance in any given case. Even the best
    criminal defense attorneys would not defend a particular client in the same way.”).
    12
    Second, Hoyos has not demonstrated that the outcome of trial would have
    been different but for counsel’s alleged deficiencies. As for evidence regarding
    Mary, the jury learned that Mary, like Dan, used cocaine, and the toxicology
    reports showed that Mary had almost four times as much active cocaine in her
    blood as her husband at the time of her death, see Hoyos, 
    162 P.3d at 540
    . But the
    jury also learned that Mary was shot while holding her three-year-old son, “and
    then finished off with a bullet to the back of her head.” 
    Id. at 558
    . Hoyos fails to
    demonstrate that additional evidence would have overcome the evidence regarding
    the circumstances of Mary’s murder, and he thus fails to establish prejudice. As
    for the blood splatter evidence, Hoyos cannot demonstrate prejudice because
    “[s]peculation about what an expert could have said is not enough to establish
    prejudice.” Grisby v. Blodgett, 
    130 F.3d 365
    , 373 (9th Cir. 1997). There was
    substantial evidence supporting the jury’s first-degree murder verdicts and Hoyos
    has not overcome his burden to show that counsel’s alleged errors were prejudicial.
    4. Hoyos next argues counsel were ineffective for failing to adequately
    investigate his life history and mental impairments and thereby failing to present
    sufficient mitigating evidence during the penalty phase. Strickland established the
    standard for ineffective assistance of counsel claims regarding counsel’s
    13
    investigation into potential mitigating evidence: “[S]trategic choices made after
    less than complete investigation are reasonable precisely to the extent that
    reasonable professional judgments support the limitations on the investigation.”
    
    466 U.S. at
    690–91. Consequently, “[i]n any ineffectiveness case, a particular
    decision not to investigate must be directly assessed for reasonableness in all the
    circumstances, applying a heavy measure of deference to counsel’s judgments.”
    
    Id. at 691
    .
    We agree with the district court that Hoyos did not show that defense
    counsel’s investigations—and any decision not to investigate further—fell below
    an objectively reasonable standard. As part of its investigation, Hoyos’s defense
    team made several trips to Mexico to interview members of Hoyos’s family,
    retained a psychologist to evaluate Hoyos, and consulted with a social
    anthropologist who studied torture in Mexico. As the district court observed,
    counsel “made a strategic decision to focus on sympathy and avoid introducing
    character testimony to keep evidence of [Hoyos’s] prior criminal activity away
    from the jury.” Counsel decided that Hoyos’s family members would testify
    during the penalty phase not about “what a great person Mr. Hoyos has been in the
    past, but how much they would miss him in the future were he to die.” This
    decision was strategic because counsel wanted to avoid “open[ing] the door to any
    14
    character impeachment or rebuttal,” to shield the jury from hearing evidence of
    Hoyos’s prior convictions in Mexico for robbery, theft, forgery, and drug-
    trafficking. Counsel’s decisions were reasonable in light of their sentencing
    strategy. Cf. Wiggins v. Smith, 
    539 U.S. 510
    , 527 (2003) (“[A] reviewing court
    must consider the reasonableness of the investigation said to support [counsel’s]
    strategy.”).
    Moreover, Hoyos cannot establish prejudice because he fails to demonstrate
    that the additional mitigating evidence would have overcome the substantial
    aggravating evidence, even if counsel adopted the strategy that Hoyos now urges
    was required. The California Supreme Court was not unreasonable in concluding
    otherwise.
    5. Last, Hoyos briefly argues his death sentence violates Atkins v. Virginia,
    
    536 U.S. 304
     (2002), because he “suffers from serious mental disabilities of a
    neuropsychological nature that are the functionally [sic] equivalent of mental
    retardation with respect to diminishing culpability.”8 Atkins held that executions of
    intellectually disabled individuals are cruel and unusual punishments prohibited by
    8
    While courts “formerly employed the phrase ‘mentally retarded,’ we now
    ‘us[e] the term ‘intellectual disability’ to describe the identical phenomenon.”
    Brumfield v. Cain, 
    576 U.S. 305
    , 308 n.1 (2015) (alteration in original) (quoting
    Hall v. Florida, 
    572 U.S. 701
    , 704 (2014)).
    15
    the Eighth Amendment. 
    Id. at 321
    . Hoyos concedes that evidence in the record as
    to his disability “may not be identical to th[at] in Atkins,” but nonetheless urges us
    to remand for a hearing on the issue. Hoyos has not demonstrated how the
    California Supreme Court’s denial of this claim violated clearly established federal
    law or was based on an unreasonable determination of the facts, and he does not
    explain what new evidence would be unearthed at an evidentiary hearing.
    Accordingly, we affirm the district court’s denial of this claim.
    AFFIRMED.
    16