Jaime Hoyos v. Ronald Davis

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NOT FOR PUBLICATION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. § 2254habeas 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. §§ 1291and 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