Reno v. Ron Davis ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENO, No. 17-99004
Petitioner-Appellant,
D.C. No.
v. 2:96-cv-02768-
CBM
RONALD DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted March 22, 2022
Pasadena, California
Filed August 19, 2022
Before: Consuelo M. Callahan, Andrew D. Hurwitz, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Callahan
2 RENO V. DAVIS
SUMMARY *
Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of Reno’s
amended 28 U.S.C. § 2254 habeas corpus petition
challenging his California conviction, on retrial, and death
sentence for two first-degree murders and one second-degree
murder.
The district court issued a certificate of appealability on
two issues: Reno’s due process claims regarding the
destruction of police records (Claims 17 and 18); and the
state trial court’s failure to instruct the jury on Cal. Penal
Code § 272, which Reno asserted was a lesser included
offense of one of the felony charges (Claim 48).
Claims 17 and 18 asserted that the California Supreme
Court unreasonably applied clearly established federal law
and unreasonably determined the facts when it ruled that the
State’s destruction of police personnel records before Reno’s
second trial was not performed in bad faith and did not
violate his constitutional rights. The panel held that the
California Supreme Court reasonably applied Arizona v.
Youngblood, 488 U.S. 51 (1988), instead of Brady v.
Maryland, 373 U.S. 83 (1963), because the record does not
support Reno’s assertion that the purged records contained
material exculpatory evidence. The panel wrote that the
California Supreme Court’s previous decision in People v.
Memro, 38 Cal. 3d 658 (1985), did not conclusively resolve
this question in his favor. The panel also held that the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RENO V. DAVIS 3
California Supreme Court did not act unreasonably when,
applying Youngblood, it affirmed the trial court’s factual
finding that there was no evidence that the police department
acted in bad faith.
Claim 48 asserted that the trial court violated Reno’s
Eighth Amendment rights by failing to sua sponte instruct
the jury on lesser included offenses of the felony lewd acts
with a minor charge (Cal. Penal Code § 288) which formed
the basis of a capital first-degree felony murder count.
Specifically, Reno contended that the jury should have been
given the option of alternatively finding him guilty of
misdemeanor child molestation under Penal Code § 647a, or
misdemeanor contributing to the delinquency of a minor
under Penal Code § 272. The panel held that the instructions
in Reno’s case—which did not give the jury “an all-or-
nothing choice” between the capital first-degree murder
charge and innocence, but rather gave the jury the option of
finding Reno guilty of the lesser included non-capital
offenses of second-degree murder or voluntary
manslaughter—did not run afoul of Beck v. Alabama, 447
U.S. 625 (1980), and there was no constitutional error. The
panel wrote that Reno failed to identify anything in the
California Supreme Court’s decision that is inconsistent with
the result in Schad v. Arizona, 501 U.S. 524 (1991),
abrogated on other grounds as recognized by Edwards v.
Vannoy, 141 S. Ct. 1547, 1554 n.4 (2021), in which the U.S.
Supreme Court held that the due process principles
underlying Beck are satisfied when the jury is given a third,
non-capital option between capital murder and acquittal.
The panel wrote that Reno’s claim fails for this reason alone,
but even if it did not, Reno would not be entitled to relief
because he did not show that the California Supreme Court
unreasonably determined that the court was not required to
instruct the jury under §§ 647a or 272.
4 RENO V. DAVIS
The panel expanded the certificate of appealability to
cover three additional issues.
Claim 2 argued that Reno’s confessions to the
interrogating officers were coerced and that the trial court’s
admission of those confessions violated his constitutional
rights. The trial court denied Reno’s motion to suppress,
finding that Reno’s statement was “free and voluntary”
because “the totality of the circumstances clearly point to the
credibility of the prosecution witnesses and against the
credibility of the prosecution witnesses and against the
credibility of the defense witnesses.” The panel held that
Reno did not show that the California Supreme Court made
an unreasonable determination of fact in finding that that
substantial evidence supported the trial court’s ruling. Reno
also contended that the California Supreme Court
unreasonably applied clearly established federal law because
the court cited but did not expressly apply the U.S. Supreme
Court’s opinion in Schneckloth v. Bustamonte, 412 U.S. 218(1973), and that the California Supreme Court erred by not
comparing his case to Arizona v. Fulminante, 499 U.S. 279(1991), in which the U.S. Supreme Court determined that a
confession was coerced when given to a paid FBI informant
who promised protection to the defendant from physical
attack in prison. Reno asserted that Fulminante should have
controlled here because the alleged police threats leading to
Reno’s confession were more immediate and direct than
those at issue in Fulminate. Noting that a state court decision
that fails to cite or show awareness of U.S. Supreme Court
cases may still satisfy the deferential standard of review
under 28 U.S.C. § 2254(d)(1) so long as neither the
reasoning nor the result of the state opinion contradicts
clearly established federal law, the panel wrote that the
California Supreme Court’s decision here did not contradict
the reasoning or the results of Reno’s cited cases.
RENO V. DAVIS 5
Claims 8–10 asserted that Reno’s second trial for first-
degree felony murder and premeditated and deliberated
murder violated the Double Jeopardy Clause and related
collateral estoppel doctrines. Holding that these claims
lacked merit, the panel wrote that the trial court’s finding
that the felony-murder special circumstance was not proven
during Reno’s first trial was not an “acquittal” for double
jeopardy purposes. The panel wrote that the California
Supreme Court reasonably determined that Reno was never
acquitted and reasonably determined that, at most, the
ambiguous special circumstance determination foreclosed
retrial for the same felony-murder special circumstance. To
the extent Reno argued that the California Supreme Court
made an unreasonable determination of the facts when it
held that the first trial judge might have found Reno guilty
of murder under a felony-murder theory, the panel rejected
that argument as well.
Claim 62 argued that the trial court violated Reno’s
constitutional rights by instructing the penalty phase jurors
that they must unanimously agree regarding the penalty.
Citing Jones v. United States, 527 U.S. 373 (1999), the panel
held that the California Supreme Court’s rejection of this
claim was not contrary to, or an unreasonable application of,
U.S. Supreme Court precedent, especially in the absence of
any evidence that jurors were confused by the instruction.
As to Reno’s argument that the California Supreme Court
unreasonably determined that the instruction was consistent
with state law, the panel wrote that the California Supreme
Court’s interpretation of California’s 1977 death penalty
statute binds this court on federal review.
6 RENO V. DAVIS
COUNSEL
James S. Thomson (argued) and Ethan H. Stone, Berkeley,
California, for Petitioner-Appellant.
David Fredric Glassman (argued), Mary Sanchez, and A.
Scott Hayward, Deputy Attorneys General; Dana M. Ali,
Supervising Deputy Attorney General; James William
Bilderback II, Senior Assistant Attorney General; Lance E.
Winters, Chief Assistant Attorney General; Rob Bonta,
Attorney General; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee.
OPINION
CALLAHAN, Circuit Judge:
In 1979, Petitioner Reno 1 was found guilty of the
murders of three young boys and sentenced to death. The
California Supreme Court reversed Reno’s conviction and
remanded for a new trial. See People v. Memro (“Memro I”),
38 Cal. 3d 658 (1985). In a 1987 retrial, a jury found Reno
guilty of two first-degree murders and one second-degree
murder. Following a penalty trial, the jury returned a verdict
of death. The California Supreme Court upheld the
convictions and sentence on direct appeal. People v. Memro
(“Memro II”), 11 Cal. 4th 786 (1995).
After unsuccessfully seeking state habeas relief, In re
Reno, 55 Cal. 4th 428 (2012), Reno filed a 28 U.S.C. § 22541
Reno was formerly known as Harold Ray Memro prior to changing
his name in 1994. In re Reno, 55 Cal. 4th 428, 443 n.2 (2012), as
modified on denial of reh’g (Oct. 31, 2012).
RENO V. DAVIS 7
petition for habeas corpus. The district court denied his
petition but granted a certificate of appealability as to two
issues. Reno v. Davis, No. CV 96-2768 CBM, 2017 WL
4863071 (C.D. Cal. Aug. 15, 2017). We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a). We expand the
district court’s certificate of appealability to cover three
additional issues, and applying the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), affirm the
district court’s denial of Reno’s petition.
I
Unless otherwise noted, the following facts are drawn
from the California Supreme Court’s opinion on direct
appeal following Reno’s second trial. Memro II, 11 Cal. 4th
786.
A
Seven-year-old Carl Carter, Jr. (“Carl”) 2 was reported
missing on October 22, 1978. Memro II, 11 Cal. 4th at 811–
12. Officers investigating Carl’s disappearance “became
aware of [Reno] when they were interviewing individuals
who might have information regarding [Carl’s]
whereabouts.” Id. at 811. When the police went to Reno’s
apartment to ask him questions, Reno answered the door and
said, “I knew you were coming . . . . I[’v]e been in
Atascadero [State Prison].” Id. at 812 (omissions and
alterations in original). Reno provided no helpful
information and the police left, returning to Carl’s home. Id.2
We use Carl’s first name to avoid any confusion with investigating
officer and trial witness Lloyd Carter.
8 RENO V. DAVIS
Soon after, Reno arrived at Carl’s home while the police
were still there to drop off a car part with Carl’s father, a
mechanic who was working on Reno’s vehicle. Id. Officer
William Sims further questioned Reno about his
whereabouts the night Carl disappeared, and Reno revealed
he had been to Carl’s home on that night. Id. Officer Sims
testified that Reno recalled stopping by the house to talk to
Carl’s father about working on his car. Id. Reno also told
Officer Sims that while at the house, he saw Carl, and the
two “had a short conversation” before Reno took Carl to get
a soft drink. Id. Officer Sims then arrested Reno for
kidnapping. Id.That evening, Officers Sims, Lloyd Carter, Louie
Gluhak, and Dennis Greene interrogated Reno at the jail. Id.Officer Carter took notes, but, at Reno’s insistence, the
interrogations were not otherwise recorded. Id.Officer Carter testified that during one of these
interrogations Reno admitted to taking Carl back to Reno’s
apartment for a soft drink. Id. During the interrogation,
Reno further admitted that he also planned to take nude
pictures of Carl, and that he took Carl into his bedroom and
fascinated him with strobe lights. Id. at 812–13. But soon
after, Carl said he wanted to leave, which enraged Reno. Id.
at 813. Reno claimed he responded by strangling Carl with
a clothesline, taking off his and Carl’s clothes except for
Carl’s shirt, taping Carl’s hands behind his back, and
attempting anal intercourse with his dead body. Id.Knowing he needed an alibi, Reno called Carl’s father to
see if Carl’s father would fix his vehicle. Id. Reno then
arranged to have a friend drive with him to Carl’s home to
drop off his car. Id. Reno admitted to returning to his
apartment, wrapping Carl’s body and clothes in a blanket,
RENO V. DAVIS 9
forgetting Carl’s shoes and socks, and dumping the body and
blanket over the side of a rural road. Id.After confessing, Reno led the police to Carl’s body,
which was “clad in underwear” with the clothesline still
around his neck (tied in a square knot as Reno had
described). Id. at 814. Officer Carter testified that he and
other officers searched Reno’s apartment with Reno’s
permission and found a red suitcase under a workbench with
a small boy’s shoes and socks, in the same place that Reno
had described leaving Carl’s footwear. Id. Officers found
boy’s clothing and a length of clothesline resembling the line
tied around Carl’s neck. Id. They also found sexually
explicit magazines featuring young men and boys, and
hundreds of photographs of young boys without clothes. Id.Some of the photographs were of other neighborhood
children. Id.At Reno’s second trial, the coroner’s representative, Dr.
Joseph Choi, testified that Carl’s cause of death was
strangulation by a rope, and that an anal swab was negative
for spermatozoa, but showed a positive acid phosphatase
result indicating “the presence of seminal fluid that came
from the prostate gland of someone other than [Carl].” Id.
at 815.
B
After Reno confessed to murdering Carl, Officer Carter
“testified that he invited [Reno] to confess to any other
crimes he might have committed.” Id. at 813. Reno replied
that about two years before, he had ridden his motorcycle to
a park hoping to take pictures of young boys. Id. at 813.
Near dusk, he saw two boys, 12-year-old Scott Fowler and
10-year-old Ralph Chavez, walking toward a pond with
fishing poles and sack lunches. Id. at 813–14. He talked to
10 RENO V. DAVIS
them, took some pictures, and was entertaining the idea of
sexual contact with Fowler as Chavez fell asleep by the
pond. Id. Reno convinced Fowler to walk to the other side
of the pond, and when they got there Fowler “said something
about fucking faggots.” Id. at 814. Reno became enraged
and then cut the boy’s throat. Id. The noise of the attack
awoke Chavez and he began to run, but Reno caught him and
cut his throat as well. Id. Reno discarded the knife the next
day. Id.The day after he confessed to Officer Carter, Reno
repeated his confession to Officer Donald Barclift and added
some details of the Fowler and Chavez murders. Id. at 814–
15. Officer Barclift testified that Reno informed him that
when he was talking to the boys, he had cut off the top of the
boys’ empty milk jug but kept the handle intact so they could
use it to hold their catch. Id. at 811, 815. A milk jug cut in
that manner was found at the murder scene. Id. at 811. Reno
specifically described how he had cut the jug to leave the
handle intact, and chided the police for not recovering any
evidence from the jug because he believed his fingerprints
were all over it. Id. at 815. Officer Barclift testified that
only the killer could have known precisely how the milk jug
was cut so as to leave the handle intact. Id. Dr. Choi from
the coroner’s office testified at trial that Fowler and Chavez
both died from cutting wounds to the neck, consistent with
Reno’s confession. Id.C
In October 1978, the State charged Reno by information
with three counts of murder for Fowler, Chavez, and Carl.
Memro I, 38 Cal. 3d at 665. The information also alleged
multiple-murder and felony-murder (based on felony lewd
or lascivious conduct with Carl) special circumstances
(former California Penal Code section 190.2(c)(3)(iv),
RENO V. DAVIS 11
(c)(5)). Id. Reno waived his right to a jury trial for the guilt
and penalty phases. Id. at 666. The trial judge found him
guilty of the first-degree murders of Carl and Chavez, the
second-degree murder of Fowler, and found the multiple-
murder special circumstance allegation true, but found the
felony-murder special circumstance allegation not true. Id.The trial court sentenced Reno to death for Carl’s murder,
and to life and a term of years for the murders of Chavez and
Fowler, respectively. Id.On appeal, the California Supreme Court determined that
the trial court had erred in summarily denying a motion filed
by Reno to discover information regarding complaints
against various police officers, including those who had
interrogated him. Id. at 673–84. “The purpose of such
information, it was alleged, was to enable [Reno] to bolster
his claim that his confession had been coerced.” Id. at 674.
In support of this discovery request, Reno’s counsel
provided statements by various individuals who had
similarly alleged “brutality and intimidation” by officers in
the police department during recent interrogations. Id.Finding it “reasonably probable that discovery would have
led to admissible evidence of sufficient weight to affect the
trial court’s determination on the voluntariness of the
confession,” id. at 685, the California Supreme Court
reversed and remanded the guilt, special circumstance, and
penalty determinations for a new trial, id. at 705.
Anticipating double jeopardy challenges to retrial on the
charge of murdering Carl, the California Supreme Court
additionally held that the trial court’s rejection of the felony-
murder special circumstance did not bar retrial for Carl’s
murder, and that sufficient evidence existed for a conviction
under a felony-murder theory. Id. at 690–700.
12 RENO V. DAVIS
On remand, the trial judge granted Reno’s motion to
discover the personnel records of the four police officers
who had interrogated him. Memro II, 11 Cal. 4th at 829.
However, the State responded that the officers’ records had
been purged in July 1984, and as a result could not be
produced. Id. at 829–30. Reno then moved to dismiss the
case as a sanction for failing to preserve the records. Id. The
prosecution offered testimony about what the records
contained, with each of the officers testifying that they had
not received any personnel complaints “except for Officer
Sims, who described one ‘unfounded’ complaint in 1978
involving asserted use of excessive force during an arrest.”
Id. at 830. After a hearing, the trial court denied Reno’s
motion, concluding that the evidence did not support a
finding that the records had been destroyed in bad faith. Id.
at 830.
The case proceeded to trial a second time. A jury found
Reno guilty of the first-degree murders of Carl and Chavez
and the second-degree murder of Fowler, and found the
multiple-murder special circumstance true. Id. at 811. After
a penalty trial, the jury returned a verdict of death. Id. In
1995, the California Supreme Court affirmed. Id. The
United States Supreme Court denied a petition for writ of
certiorari. Memro v. California, 519 U.S. 834 (1996).
Also in 1995, Reno filed his initial state habeas petition
raising twelve claims in the California Supreme Court. The
California Supreme Court summarily denied the petition on
the merits that same year. In re Reno, 55 Cal. 4th at 447.
In 1998, Reno filed a 28 U.S.C. § 2254 petition in the
Central District of California. In 1999, the district court
stayed the proceedings so that Reno could exhaust certain of
his claims in a second state petition. Reno, 2017 WL
4863071, at *2.
RENO V. DAVIS 13
In 2004, following appointment of new counsel, Reno
filed a second petition in the California Supreme Court
raising 143 claims and spanning over 500 pages. In re Reno,
55 Cal. 4th at 448. In 2012, the California Supreme Court
dismissed most of the claims in the second state petition on
various procedural grounds, and denied the remainder on the
merits. 3 Id. at 457–59, 523. The United States Supreme
Court denied a petition for writ of certiorari. Reno v.
California, 569 U.S. 978 (2013).
In 2007, Reno filed the operative amended § 2254
petition in the district court. Reno, 2017 WL 4863071, at *2.
The district court denied multiple claims on the merits and
dismissed the remaining claims as procedurally defaulted.
The district court issued a certificate of appealability on two
issues: Reno’s due process claims regarding the destruction
of police records (Claims 17 and 18); and the state trial
court’s failure to instruct the jury on California Penal Code
section 272, which Reno asserts was a lesser included
offense of one of the felony charges (Claim 48). Reno timely
appealed.
II
We review the district court’s denial of a habeas petition
de novo. Dixon v. Shinn, 33 F.4th 1050, 1053 (9th Cir.
2022). Reno’s federal petition was filed after April 24, 1996,
and therefore the terms of AEDPA govern our review.
3
The California Supreme Court also determined that the lengthy
petition was an example of an abusive writ practice. 55 Cal. 4th at 456–
59. As a result, the California Supreme Court set new guidelines and
limits on exhaustion petitions, including page limits and requirements
for streamlining the pleading process. Id. at 443–44.
14 RENO V. DAVIS
Woodford v. Garceau, 538 U.S. 202, 210 (2003). Under
AEDPA, habeas relief may not be granted
with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the 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). “[E]ven a strong case for relief does
not mean the state court’s” denial was unreasonable.
Harrington v. Richter, 562 U.S. 86, 102 (2011). To obtain
relief on a claim in federal court, a petitioner bears the
burden to demonstrate that the state court’s ruling “was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103.
III
Claims 17 and 18 of Reno’s amended § 2254 petition
assert that the California Supreme Court unreasonably
applied clearly established federal law and unreasonably
determined the facts when it ruled that the State’s destruction
of police personnel records before his second trial was not
performed in bad faith and did not violate his constitutional
RENO V. DAVIS 15
rights. The district court held that Reno failed to establish
that the California Supreme Court unreasonably applied
Arizona v. Youngblood, 488 U.S. 51 (1988), and that the
state court’s determination that the records were not
destroyed in bad faith was reasonable, but granted a
certificate of appealability as to these claims. Reno, 2017
WL 4863071, at *19, *59. We affirm the denial of these
claims.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme
Court held 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, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87. Subsequently, in Youngblood the
Court distinguished Brady in a situation where the evidence
that was destroyed was only potentially favorable to the
defense. 488 U.S. at 57–58. In this scenario, “[t]he
government’s failure to preserve potentially exculpatory
evidence rises to the level of a due process violation only if
the defendant shows that the government acted in bad faith.”
United States v. Robertson, 895 F.3d 1206, 1211 (9th Cir.
2018) (citing Youngblood, 488 U.S. at 58).
Reno principally raises two arguments. First, he
contends that the California Supreme Court unreasonably
relied on the standards set forth in Youngblood instead of
Brady. He claims the destroyed records constituted
“material exculpatory evidence that would have
demonstrated the coerced and unreliable character of his
alleged confession.” He also cites the California Supreme
Court’s statement in Memro I that the trial court’s initial
denial of his motion for discovery caused him “clear”
prejudice as support for the proposition that the destroyed
16 RENO V. DAVIS
records contained favorable evidence. See Memro I, 38 Cal.
3d at 684.
Alternatively, Reno argues that even if Youngblood
applies, the California Supreme Court unreasonably held
that substantial evidence supported the trial court’s
determination that the police department did not destroy the
records in bad faith. See Memro II, 11 Cal. 4th at 831. Reno
asserts that the destruction of records was inherently
suspicious because the chief of the police department (1) was
aware of allegations of misconduct against the officers in his
department, and (2) ordered the records destroyed about two
months after oral argument was held on Reno’s first appeal,
a primary focus of which was the trial court’s denial of his
motion to discover these records. Reno also asserts that the
police department did not appear to have a policy of
regularly purging records prior to this incident.
Additionally, Reno cites a news article written during
Reno’s first trial—which was not part of the record on his
direct appeal—establishing that the police chief was aware
of Reno’s misconduct allegations at the time he ordered the
destruction of the records.
We are not persuaded by these arguments. The
California Supreme Court’s application of Youngblood was
reasonable because the record does not support Reno’s
assertion that the purged personnel records contained
material exculpatory evidence. Memro II, 11 Cal. 4th
at 831. 4 The state court’s determination that the records
4
The State contends that because Reno submitted a new piece of
evidence with his first habeas petition—the 1979 newspaper article
referenced above—Reno’s state habeas claim on this point was different
from the claim as presented to the California Supreme Court on direct
appeal. Thus, the State argues the relevant opinion for the purpose of
RENO V. DAVIS 17
contained, at most, “potentially useful” evidence was
supported by the statements of the four interrogating
detectives who testified that their personnel files before the
purge contained no formal complaints or investigations for
excessive use of force allegations, except for Officer Sims
who testified that the sole complaint in his file was
“unfounded.” See id. There was no contrary evidence in the
record about the existence of complaints and investigations.
Because the records were destroyed and the testimony
indicated that the records did not contain evidence favorable
to Reno, the California Supreme Court reasonably applied
Youngblood instead of Brady.
Contrary to Reno’s argument, the California Supreme
Court’s previous decision in Memro I did not conclusively
resolve this question in his favor. The court in Memro I
discussed the “materiality” of the evidence sought by Reno
in the context of his discovery motion and the court’s
analysis of whether the records might be admissible or might
lead to admissible evidence relevant to his claims of
AEDPA review is the California Supreme Court’s summary habeas
denial, not the California Supreme Court’s opinion on direct appeal
(Memro II). As a result, the State argues we should apply the deferential
standard articulated in Richter applicable to summary denials, which
requires Reno to demonstrate that “there was no reasonable basis for the
state court to deny relief.” 562 U.S. at 98. Reno counters that we should
evaluate the reasoning in Memro II because the State fails to rebut the
presumption that where there is a reasoned state judgment denying a
claim followed by a later summary denial of the same claim, the
summary denial rests on the same grounds as explained in the earlier
judgment. Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Cannedy
v. Adams, 706 F.3d 1148, 1158 (9th Cir.), amended on denial of reh’g,
733 F.3d 794 (9th Cir. 2013). We need not resolve this question here
because we find that the California Supreme Court’s decision in Memro
II did not unreasonably apply clearly established federal law or make an
unreasonable determination of facts. 28 U.S.C. § 2254(d)(1)–(2).
18 RENO V. DAVIS
coercion. Memro I, 38 Cal. 3d at 682–83, 685 (concluding
that it was “reasonably probable that discovery would have
led to admissible evidence of sufficient weight to affect the
trial court's determination on the voluntariness of the
confession” (emphasis added)). But the court’s conclusion
that the motion might have led to the discovery of favorable
admissible evidence is not the same as a conclusion that that
the records themselves necessarily contained “material
exculpatory evidence.” See Youngblood, 488 U.S. at 57.
Indeed, the court expressly stated that Reno “was not in a
position to know” whether the files contained any useful
information. Memro I, 38 Cal. 3d at 684.
The California Supreme Court did not act unreasonably
when, applying Youngblood, it affirmed the trial court’s
factual finding that there was no evidence that the police
department acted in bad faith. See Memro II, 11 Cal. 4th at829–32; 28 U.S.C. § 2254(d)(2). While there was a temporal
proximity between the oral argument in Reno’s first direct
appeal (in May 1984) and the police chief’s order to purge
the records about two months later (in July 1984), the trial
court concluded that (1) the records were destroyed in
accordance with the California Government Code
(specifically, section 34090(d)) and were kept for longer
than the Code required, and (2) the police department,
“unschooled in the nuances of appellate procedure,” did not
realize the records might be needed after the trial court had
originally denied discovery regarding them. Id. at 830–31.
These findings were made following an evidentiary hearing
and were supported by the testimony of the officers whose
records were at issue and the police department’s current and
former custodians of records. Id. at 829–30. It was not
unreasonable for the California Supreme Court to hold that
the record adequately supported the trial court’s conclusion.
See, e.g., Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir.
RENO V. DAVIS 19
2012) (“[U]nless the state appellate court was objectively
unreasonable in concluding that a trial court’s credibility
determination was supported by substantial evidence, we
must uphold it.”).
Further, the 1979 news article does not convince us that
the California Supreme Court’s factual determinations were
unreasonable. The article does not establish that the police
chief or anyone else employed by the police department who
participated in the document purge five years later were
aware that these allegations were still a live issue or that
there was a possibility that the trial judge’s order would be
overturned regarding these documents. Indeed, the police
chief’s comments in the article indicated that he was not
aware of any complaints regarding the officers that could
have supported Reno’s allegations.
For these reasons, we hold that the California Supreme
Court’s rulings were not based on an unreasonable
application of Youngblood or an unreasonable determination
of the facts, and we affirm the district court’s denial of
Claims 17 and 18. See 28 U.S.C. § 2254(d)(1) & (2).
IV
Claim 48 of Reno’s amended § 2254 petition asserts that
the trial court violated his Eighth Amendment rights by
failing to sua sponte instruct the jury on lesser included
offenses of the felony lewd acts with a minor charge
(California Penal Code section 288) which formed the basis
of the capital first-degree felony murder count regarding
Carl. Specifically, Reno contends that the jury should have
been given the option of alternatively finding him guilty of
misdemeanor child molestation under Penal Code
section 647a, or misdemeanor contributing to the
delinquency of a minor under Penal Code section 272. The
20 RENO V. DAVIS
district court denied the claim but granted a certificate of
appealability. Reno, 2017 WL 4863071, at *37, *59. 5 We
affirm.
In Beck, the Supreme Court held that a defendant in a
capital case has a constitutional right to jury instructions on
a lesser included offense in certain instances to protect
against “the risk of an unwarranted conviction.” Beck v.
Alabama, 447 U.S. 625, 637 (1980) (“Such a risk cannot be
tolerated in a case in which the defendant’s life is at stake.”).
The Court determined that “when a jury is given only two
options, ‘not guilty’ and ‘guilty of capital murder,’ [but] the
evidence would support an instruction on a lesser included
offense, [because] the risk that the jury will convict although
it has reasonable doubt is too great,” a third option is
required; an instruction on a lesser included, non-capital
offense. Solis v. Garcia, 219 F.3d 922, 928 (9th Cir. 2000)
(citing Beck, 447 U.S. at 638). In Schad, the Court clarified
that, even in capital cases, a defendant is not entitled to jury
instructions on every lesser included offense that the
evidence supports. Schad v. Arizona, 501 U.S. 624, 645–47
(1991) (plurality opinion), abrogated on other grounds as
recognized by Edwards v. Vannoy, 141 S. Ct. 1547, 1556 n.4
(2021). Instead, “the due process principles underlying
Beck” are satisfied when the jury is given a third, non-capital
option between capital murder and acquittal. Id. at 646–47;
see also Turner v. Calderon, 281 F.3d 851, 886 (9th Cir.
2002). The Court reiterated that, in Beck, the jury was
5
The parties dispute whether the district court’s grant of a certificate
of appealability encompassed only the section 272 allegation, or also
included the section 647a allegation. To the extent the district court’s
order is ambiguous on this point, we expand the certificate of
appealability to include Reno’s allegations under both statutes. See
28 U.S.C. § 2253(c).
RENO V. DAVIS 21
presented with an “all-or-nothing” decision. Schad,
501 U.S. at 646.
The jury in Reno’s case was not given “an all-or-nothing
choice” between the capital first-degree murder charge and
innocence. Schad, 501 U.S. at 647. Instead, it was
instructed that it had the option of finding Reno guilty of the
lesser included non-capital offenses of second-degree
murder or voluntary manslaughter. Thus, the jury
instructions in this case did not run afoul of Beck and there
was no constitutional error. See Turner, 281 F.3d at 885–86.
Reno argues that the California Supreme Court did not
cite or discuss Schad and that the state court’s rejection of
his claim on the ground that Reno was not entitled to
instructions on sections 647a or 272 contradicts Schad’s
reasoning. We disagree. Although the California Supreme
Court did not expressly discuss Schad, Reno fails to identify
anything in Memro II that is inconsistent with the result in
Schad. See Johnson v. Williams, 568 U.S. 289, 298 (2013)
(where a state court rejects a federal claim without expressly
discussing the claim, a rebuttable presumption exists that the
court considered and adjudicated it on the merits); see also
Early v. Packer, 537 U.S. 3, 8 (2002) (a state court can
reasonably apply federal law without explicitly relying on
U.S. Supreme Court cases so long as “neither the reasoning
nor the result of the state-court decision contradicts them”).
Reno’s claim fails for this reason alone. But even if it
did not, Reno still would not be entitled to relief because he
has not shown that the California Supreme Court
unreasonably determined that the court was not required to
instruct the jury under sections 647a or 272.
First, the California Supreme Court reasonably
determined the evidence supported the instruction of lewd
22 RENO V. DAVIS
conduct and contact under section 288, but that it did not
support instruction for only lewd conduct under
section 647a. Under California law, a “defendant is entitled
to an instruction on a lesser included offense only if ‘there is
evidence which, if accepted by the trier of fact, would
absolve [the] defendant from guilt of the greater offense’ but
not the lesser.” Memro II, 11 Cal. 4th at 871 (alteration in
original) (citations omitted) (quoting People v. Morrison,
228 Cal. App. 2d 707, 712 (1964)). At the time Reno killed
Carl, section 647a criminalized as a misdemeanor offense
“[e]very person who annoys or molests any child under the
age of 18.” Id. at 870. “The primary distinction between
section 288” and section 647a is that section 288 requires
actual or constructive lewd touching, while section 647a
does not. Id. at 871. Thus, to be entitled to a section 647a
instruction, Reno was required to establish that there was
evidence that Reno engaged in lewd conduct with Carl but
“without a lewd touching.” Id. at 872.
The California Supreme Court reasonably held that there
was no such evidence. Id. Reno “confessed that he brought
[Carl] to his apartment intending to take nude pictures of
him,” and admitted to disrobing Carl. Id. at 871–72. The
California Supreme Court reasonably concluded that Reno’s
“disrobing [of Carl] while alive, actual or constructive, if
accepted by the trier of fact, establishes a violation of section
288,” id. at 872, and thus Reno was not entitled to an
instruction as to the lesser offense under section 647a. See
Morrison, 228 Cal. App. 2d at 712; see also Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state
court’s interpretation of state law, including one announced
on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus.”).
RENO V. DAVIS 23
Nor was Reno entitled to an instruction under section
272. The California Supreme Court determined as matter of
state law that section 272 was not a lesser included offense
of performing a lewd and lascivious act under section 288.
Memro II, 11 Cal. 4th at 872–73. That reasoning is binding
on federal habeas review. See Richey, 546 U.S. at 76.
Reno argues that the California Supreme Court erred
because it had determined in 1947 that section 272 was a
lesser included offense to section 288. People v. Greer,
30 Cal. 2d 589, 596–98 (1947). By contrast, the case
Memro II cited for the proposition that section 272 was not
a lesser included offense was decided in 1992, five years
after Reno’s retrial. Memro II, 11 Cal. 4th at 872–73 (citing
People v. Vincze, 8 Cal. App. 4th 1159, 1162–64 (1992)).
But the 1992 decision in Vincze held that the prior result in
Greer was based on text in the statute that had been removed
by amendment in 1975, before Reno killed Carl. Vincze,
8 Cal. App. 4th at 1162–63. With the relevant text removed
from the statute, the California Court of Appeal determined
that section 272 no longer described a lesser included
offense in relation to section 288. Id. This was the precise
reasoning apparently adopted by the California Supreme
Court in Memro II, which—as noted above—is binding on
federal habeas review. Richey, 546 U.S. at 76.
For these reasons, we affirm the district court’s denial of
Claim 48. See Richter, 562 U.S. at 102–03; 28 U.S.C.
§ 2254(d)(1)–(2).
V
Reno’s appeal also raises several uncertified issues. We
construe a habeas appellant’s briefing of uncertified issues
as a motion to expand the district court’s grant of a certificate
of appealability. Floyd v. Filson, 949 F.3d 1128, 1152 (9th
24 RENO V. DAVIS
Cir. 2020); 9th Cir. R. 22-1(e). To obtain a certificate of
appealability, a petitioner must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This requires the petitioner to “demonstrate
that the issues are debatable among jurists of reason; that a
court could resolve the issues [in a different manner]; or that
the questions are adequate to deserve encouragement to
proceed further.” Lambright v. Stewart, 220 F.3d 1022,
1025 (9th Cir. 2000) (alteration in original) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Reno’s brief raises five uncertified issues for
consideration. We find that three of these issues—raising
arguments related to Claim 2, Claims 8–10, and Claim 62—
warrant further consideration and therefore grant a
certificate of appealability regarding these claims. See
Lambright, 220 F.3d at 1025. However, we agree with the
district court that Reno’s contentions on these issues lack
merit. We deny Reno’s request for a certificate of
appealability on his remaining claims. 6 28 U.S.C.
§ 2253(c)(2); see also Gonzalez v. Thaler, 565 U.S. 134,
140–41 (2012).
A
Claim 2 of Reno’s amended § 2254 petition argues that
his confessions to the interrogating officers were coerced
and that the trial court’s admission of those confessions
violated his constitutional rights. The district court rejected
the claim, Reno, 2017 WL 4863071, at *25. We affirm.
6
Specifically, we deny Reno’s request for a certificate of
appealability on Claims 5, 11–14, 22–23, 34–37, 42–46, 50–55, 64, 69,
71, 72, 74–79, 82–111, 113–120, 124, 126, 140, and 142.
RENO V. DAVIS 25
The admission of an involuntary or coerced confession
violates a defendant’s right to due process under the
Fourteenth Amendment. Jackson v. Denno, 378 U.S. 368,
385–86 (1964). A confession is involuntary if a defendant’s
“will was overborne” or if the confession was not “the
product of a rational intellect and a free will.” Townsend v.
Sain, 372 U.S. 293, 307 (1963), overruled on other grounds
by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), superseded
in part by statute, 28 U.S.C. § 2254(e)(2) (1996). When
determining whether a defendant’s will was overborne,
evidence of “coercive police activity is a necessary predicate
to the finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth
Amendment.” Colorado v. Connelly, 479 U.S. 157, 167
(1986).
“Whether a confession is involuntary must be analyzed
within the ‘totality of [the] circumstances.’” Cook v.
Kernan, 948 F.3d 952, 968 (9th Cir. 2020) (alteration in
original) (quoting Withrow v. Williams, 507 U.S. 680, 693
(1993)). “The factors to be considered include the degree of
police coercion; the length, location and continuity of the
interrogation; and the defendant’s maturity, education,
physical condition, mental health, and age.” Brown v.
Horell, 644 F.3d 969, 979 (9th Cir. 2011). This “is a fact-
based analysis that inherently allows for a wide range of
reasonable application,” and because the general standard
requires a case-by-case analysis, “federal courts must
provide even ‘more leeway’ under AEDPA in ‘evaluating
whether a rule application was unreasonable.’” Cook,
948 F.3d at 969 (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)).
Reno presented evidence to the trial court in support of
his contention that his confession was involuntary, which
26 RENO V. DAVIS
was summarized by the California Supreme Court on direct
appeal and which we only briefly recount here. Memro II,
11 Cal. 4th at 823–26.
During a hearing on his motion to suppress, Reno
testified that, on the night he was arrested, the officers did
not read him his Miranda rights and that they initially
refused to let him make a phone call (though they allowed
him to make calls later) or talk to a lawyer. Id. at 824–26.
Reno asserted that, during his third interrogation that
evening, the officers used the physically imposing size of
one of the officers—Officer Greene—to intimidate him. Id.
at 823. Reno stated that the officers pointed to a depression
in the wall of the interrogation room and claimed that they
would use Reno’s head to enlarge the depression unless he
admitted to murdering Carl. Id. Reno also claimed the
officers told him that if he were imprisoned for the murder,
he would be unlikely to survive. Id. Reno further testified
that the officers promised him that if he confessed, no
charges would be filed and that he would be returned to
Atascadero. Id. at 824.
Reno introduced testimony from other individuals,
including Angelina Nasca and Michael Bridges, who
allegedly had been mistreated by Officer Greene while under
arrest. Id. at 823. Nasca claimed that Officer Greene
threatened to push her head into the depression in the
interrogation room wall, which was similar to the threat
Reno allegedly received. Id. Bridges testified that Officer
Greene threatened him with a gun and beat him. Id. Reno’s
counsel, Michael Carney, further testified that Officer
Greene had told Carney that Greene had broken another
citizen’s jaw while on duty. Id. Additionally, Reno
presented testimony “that for three or four years the local
public defender had not received a single request to appear
RENO V. DAVIS 27
at the South Gate jail in response to an invocation of the right
to counsel.” Id. at 824.
The prosecution produced its own witnesses and
testimony in support of its position that the confession was
voluntary. Officer Sims testified that he had read Reno his
Miranda rights and that Reno waived them. Officers Sims
and Carter both testified that Reno was never threatened or
induced to confess. Id. at 824. The officers testified that
Officer Greene had not acted in a threatening or intimidating
manner. Id. Officer Carter testified that Reno was
“extremely emotionally upset and . . . seemed to be very
remorseful” as Reno confessed to the murders. Id. at 824–
25. The State noted that Reno conceded he had never been
physically harmed. Id. at 825. Another officer testified that,
after Reno guided police to Carl’s body, Reno told the
officer that he “didn’t understand how anyone could treat
him so fairly and so nice when he had done such a terrible
thing.” Id. The trial court ultimately denied Reno’s motion
to suppress, finding that his statement was “free and
voluntary” because “the totality of the circumstances clearly
point to the credibility of the prosecution witnesses and
against the credibility of the defense witnesses.” Id. at 826.
Reno has not shown that the California Supreme Court
made an unreasonable determination of fact in finding that
substantial evidence supported the trial court’s ruling. Id. at
826–27; 28 U.S.C. § 2254(d)(2). The trial court ruled on the
credibility of the various witnesses after holding a full
evidentiary hearing and giving Reno the opportunity to
develop the record. 7 Although the record contained
7
Reno also argues that the first trial court prevented him from
gathering more evidence of coercion because the court denied an ex parte
motion for an unannounced visit to the interrogation room to get a picture
28 RENO V. DAVIS
evidence supporting Reno’s assertions, the California
Supreme Court reasonably determined that substantial
evidence supported the trial court’s credibility findings. See
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The
question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but
whether that determination was unreasonable—a
substantially higher threshold.”).
Reno also contends that the California Supreme Court
unreasonably applied clearly established federal law under
§ 2254(d)(1) because the court cited but did not expressly
apply the U.S. Supreme Court’s opinion in Schneckloth v.
Bustamonte, 412 U.S. 218 (1973). Reno further argues that
the California Supreme Court erred by not comparing his
case to Arizona v. Fulminante, in which the U.S. Supreme
Court determined that a confession was coerced when given
to a paid FBI informant who promised protection to the
defendant from physical attack in prison. 499 U.S. 279,
287–88 (1991). Reno asserts that Fulminante should have
controlled here because the alleged police threats leading to
Reno’s confession were more immediate and direct than
those at issue in Fulminante.
We are not persuaded. A state court decision that fails
to cite or show awareness of U.S. Supreme Court cases may
still satisfy the deferential standard of review under
§ 2254(d)(1) so long as neither the reasoning nor the result
of the dent or hole in the wall. However, any evidence that he could have
garnered from the visit would have been cumulative to Officer Carter’s
admission that there was a dent or indentation in the wall as the witnesses
described at that time. Moreover, Officer Sims testified that soon after
Reno’s interrogation the room was renovated and converted for another
use. The denial of this motion did not render the state court’s ultimate
factual findings unreasonable.
RENO V. DAVIS 29
of the state opinion contradicts clearly established federal
law. Early, 537 U.S. at 8. The California Supreme Court’s
decision did not contradict the reasoning or the results of
Reno’s cited cases. The existence of “coercive police
activity is a necessary predicate” to a finding that a
confession was not voluntary, Connelly, 479 U.S. at 167.
Here, the California Supreme Court reasonably found that
the police did not act in a coercive manner as alleged by
Reno. See Memro II, 11 Cal. 4th at 827. Absent this
“necessary predicate” of coercive police conduct, the
California Supreme Court had no reason to proceed further
in the analysis set forth in Schneckloth and Fulminante.
Fulminante, 499 U.S. at 285–87; Schneckloth, 412 U.S.
at 227; see also Frazier v. Cupp, 394 U.S. 731, 739 (1969)
(where the pre-confession “questioning was of short
duration” and the accused is a “mature individual of normal
intelligence,” even subtle forms of police coercion such as
misrepresenting evidence are “insufficient in our view to
make this otherwise voluntary confession inadmissible”).
For these reasons, we affirm the district court’s denial of
Claim 2.
B
Claims 8–10 of Reno’s amended § 2254 petition assert
that his second trial for first-degree felony murder and
premeditated and deliberated murder violated the Double
Jeopardy Clause and related collateral estoppel doctrines.
We agree with the district court that these claims lack merit.
See Reno, 2017 WL 4863071, at *33.
The Double Jeopardy Clause of the Fifth Amendment
precludes the State from (1) bringing a successive
prosecution on the same offense for which a defendant was
previously acquitted, Brown v. Ohio, 432 U.S. 161, 165–66
30 RENO V. DAVIS
(1977), and (2) relitigating any issue that was necessarily
decided in the defendant’s favor in a prior trial under the
collateral estoppel rule, Ashe v. Swenson, 397 U.S. 436, 443
(1970). The protection of the Double Jeopardy Clause
“applies only if there has been an event, such as an acquittal,
which terminates the original jeopardy.” Richardson v.
United States, 468 U.S. 317, 325 (1984). “[T]he Double
Jeopardy Clause’s general prohibition against successive
prosecutions does not prevent the government from retrying
a defendant who succeeds in getting his first conviction set
aside, through direct appeal or collateral attack, because of
some error in the proceedings leading to conviction.”
Lockhart v. Nelson, 488 U.S. 33, 38 (1988). “[R]eversal for
trial error, as distinguished from evidentiary insufficiency,
does not constitute a decision to the effect that the
government has failed to prove its case.” Burks v. United
States, 437 U.S. 1, 15 (1978).
Reno’s arguments stem from a specific finding of the
trial judge at his first trial. At that trial, Reno was found
guilty of first-degree murder for killing Carl. Memro II,
11 Cal. 4th at 820. The court further “found true a special
circumstance of multiple murder under [California’s] 1977
death penalty statute.” Id. But the court “found not true a
special circumstance of felony murder under the same law.”
Id. Under California’s 1977 death penalty law, the felony-
murder special circumstance required a finding that both
(1) the murder was committed in the course of committing
one of several enumerated felonies (including lewd or
lascivious acts against a minor under California Penal Code
section 288), and (2) the murder was willful, deliberate, and
premeditated. Id. at 820; Memro I, 38 Cal. 3d 658, 696.
RENO V. DAVIS 31
However, the trial court did not specify which of these
two elements the State had failed to prove. As the California
Supreme Court later summarized:
By finding the special circumstance not true,
the [trial] court may have decided that there
was no premeditation, or that there was no
attempted or completed lewd act—we do not
know. It could not have decided that both
theories failed, however, because at the same
time, by finding defendant guilty of first
degree murder, it determined either that
defendant killed [Carl] with premeditation
and deliberation, or while committing or
attempting to commit a violation of section
288.
Memro II, 11 Cal. 4th at 820. Indeed, in Reno’s direct appeal
following his initial conviction, the California Supreme
Court concluded that sufficient evidence supported the
conviction for the first-degree murder of Carl under a felony-
murder theory. Memro I, 38 Cal. 3d at 690–99.
At Reno’s retrial, the prosecution did not reallege the
felony-murder special circumstance which the first trial
judge had rejected, and instead presented the case regarding
Carl’s killing both under felony-murder and premeditated
and deliberated theories. Memro II, 11 Cal. 4th at 820. The
jury was instructed on both theories and found Reno guilty
of first-degree murder. Id. The trial court denied Reno’s
request to poll the jurors regarding the legal basis for each
vote. Id.Following the second trial, Reno argued to the California
Supreme Court—as he does now—that double jeopardy and
collateral estoppel principles barred his retrial under either
32 RENO V. DAVIS
the felony-murder or the premeditated and deliberated
theories. Id. at 820–22. Reno “premise[d] this contention
on an argument that the court must have rejected one of those
theories when it found the felony-murder special
circumstance not true, and therefore he should not have been
retried on either theory.” Id. at 820–21. The California
Supreme Court rejected Reno’s argument, finding that
double jeopardy did not apply because Reno was convicted,
not acquitted, in the first trial for the first-degree murder of
Carl. Id. at 821. Further, the state court found that the
doctrine of collateral estoppel would “at most . . . bar retrial
of the felony-murder special circumstance, which was not
realleged” at his second trial. Id. at 822.
Reno contends that the California Supreme Court’s
rejection of his argument was an unreasonable application of
clearly established federal law. We disagree. The trial
court’s finding that the felony-murder special circumstance
was not proven during Reno’s first trial was not an
“acquittal” for double jeopardy purposes. On the contrary,
the trial court found Reno guilty of the first-degree murder
of Carl, and the California Supreme Court expressly
determined that sufficient evidence supported the conviction
under a felony-murder theory. Memro I, 38 Cal. 3d at 699.
Further, the California Supreme Court determined that
sufficient evidence supported the murder convictions for
Fowler and Chavez, which in turn supported the multiple-
murder special circumstance which made Reno’s case death
eligible. Memro I, 38 Cal. 3d at 690–700. The California
Supreme Court thus reasonably determined that Reno was
never acquitted. See Poland v. Arizona, 476 U.S. 147, 157
(1986) (holding the defendant was not “acquitted” for double
jeopardy purposes where the state court found insufficient
evidence to support an aggravating circumstance but still
imposed the death penalty).
RENO V. DAVIS 33
The California Supreme Court also reasonably
determined that, at most, the ambiguous special
circumstance determination foreclosed retrial for the same
felony-murder special circumstance. See Memro II, 11 Cal.
4th at 821–22. “If ‘there is more than one rational
conclusion that can be drawn from the first jury’s verdict,’
then collateral estoppel cannot apply because the issue was
not necessarily decided by the jury’s verdict.” Sivak v.
Hardison, 658 F.3d 898, 919 (9th Cir. 2011) (quoting
Santamaria v. Horsley, 133 F.3d 1242, 1246 (9th Cir. 1998)
(en banc)). Because the judge in Reno’s first trial and the
jury in Reno’s retrial could have rationally grounded the
first-degree murder verdicts on a theory of either felony
murder or premeditation and deliberation, Memro II, 11 Cal.
4th at 861–64, each factfinder “could have grounded its
verdict upon an issue other than that which the defendant
seeks to foreclose from consideration.” Ashe, 397 U.S.
at 444. The California Supreme Court’s rejection of Reno’s
collateral estoppel argument was thus not unreasonable.
Finally, to the extent Reno argues that the California
Supreme Court made an unreasonable determination of the
facts when it held that the first trial judge might have found
Reno guilty of murdering Carl under a felony-murder theory,
we reject that argument as well. The California Supreme
Court’s determination that the trial court did not
unequivocally reject the State’s argument that Reno violated
section 288 was based on a reasonable reading of the record,
see Memro I, 38 Cal. 3d at 696 n.44, and Reno’s own
confession constituted sufficient evidence in support of the
State’s felony-murder charge based on a section 288
violation, id. at 699; see also supra Part IV.
For these reasons, we affirm the district court’s denial of
Claims 8, 9, and 10. See Richter, 562 U.S. at 102–03.
34 RENO V. DAVIS
C
Claim 62 of Reno’s amended § 2254 petition argues that
the trial court violated his constitutional rights by instructing
the penalty phase jurors that they must unanimously agree
regarding the penalty. The district court found the California
Supreme Court’s rejection of this argument reasonable and
denied the claim. Reno, 2017 WL 4863071, at *53. We
affirm.
A court reviewing a claim of jury instructional error on
federal habeas review first considers whether the erroneous
instruction amounted to a constitutional error. Morris v.
Woodford, 273 F.3d 826, 833 (9th Cir. 2001). A
constitutional error is established where “the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Henderson v.
Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughton,
414 U.S. 141, 147 (1973)). If a federal habeas court finds
constitutional error in the jury instructions, the court must
then determine whether the erroneous instruction had a
“substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
637 (1993) (citation omitted); see also Morris, 273 F.3d
at 833.
Under the applicable 1977 California death penalty
statute, “if the jury could not agree on the penalty, the court
was required to impose a punishment of life imprisonment
without possibility of parole.” Memro II, 11 Cal. 4th at 882.
In this case, “[t]he jury was instructed that ‘[i]n order to
make a determination as to the penalty, all twelve jurors
must agree.’” Id. (second alteration in the original).
Reno argues that the instruction violated his Sixth,
Eighth, and Fourteenth Amendment rights because the
RENO V. DAVIS 35
instruction “failed to inform the jury that the verdict did not
have to be unanimous to impose a life sentence,” and thus
did not adequately inform the jury of “the effect of an
inability to agree on the sentence, thereby increasing the
likelihood of prejudice.” Reno also argues that the
California Supreme Court unreasonably determined that the
instruction was consistent with state law.
Neither contention has merit. In Jones v. United States,
the U.S. Supreme Court rejected the petitioner’s argument
that the jury was required to be instructed that the failure to
reach a unanimous decision would result in the imposition
of a life sentence. 527 U.S. 373, 382 (1999) (“We have
never suggested . . . that the Eighth Amendment requires a
jury be instructed as to the consequences of a breakdown in
the deliberative process.”). The California Supreme Court’s
rejection of this same argument was thus not contrary to, or
an unreasonable application of, U.S. Supreme Court
precedent, especially in the absence of any evidence that the
jurors were confused by the instruction. Memro II, 11 Cal.
4th at 882; 28 U.S.C. § 2254(d)(1).
As for Reno’s second argument, “that a jury instruction
violates state law is not, by itself, a basis for federal habeas
corpus relief.” Clark v. Brown, 450 F.3d 898, 904 (9th Cir.
2006); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990)
(“[F]ederal habeas corpus relief does not lie for errors of
state law.”). The California Supreme Court’s interpretation
of California’s 1977 death penalty statute binds us on federal
habeas review. Richey, 546 U.S. at 76; see also Lopez v.
Schriro, 491 F.3d 1029, 1043 (9th Cir. 2007) (“[S]tate courts
are presumed to know and correctly apply state law.”). We
thus affirm the district court’s denial of Claim 62.
36 RENO V. DAVIS
VI
For the reasons set forth above, we affirm the district
court’s denial of Claims 17, 18, and 48 of Reno’s amended
§ 2254 petition, as to which the district court granted a
certificate of appealability. We expand the certificate of
appealability to include the arguments raised in Claims 2, 8–
10, and 62, and affirm the district court’s denial of those
claims as well. We deny Reno’s request for a certificate of
appealability on his remaining claims because he has not
shown that “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000); see also Gonzalez, 565 U.S. at 140–41; 28 U.S.C.
§ 2253(c)(2).
AFFIRMED.