Lester Ochoa v. Ron Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESTER ROBERT OCHOA, No. 16-99008

Petitioner-Appellant,

D.C. No.

v. 2:99-cv-11129-DSF

RONALD DAVIS, Warden,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted March 23, 2021

San Francisco, California

Filed November 1, 2021

Before: Johnnie B. Rawlinson, Richard R. Clifton, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Clifton

2 OCHOA V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Lester

Ochoa’s habeas corpus petition, under 28 U.S.C. § 2254,

challenging the constitutionality of his conviction and death

sentence imposed in California state court.

Ochoa was convicted in a single trial in 1988 for a series

of violent crimes against three female victims over a six-

month period the previous year, including murder,

kidnapping, forcible rape, and assault with a deadly weapon.

This court previously granted Ochoa a certificate of

appealability as to five claims, which the panel reviewed with

the deference prescribed by the Antiterrorism and Effective

Death Penalty Act of 1996.

Ochoa contended that his right to due process under the

Fifth and Fourteenth amendments, as established by Brady v.

Maryland, 373 U.S. 83 (1963), was violated when the

prosecutor failed to disclose that three jailhouse informants

had told state police officers that Edward Ramage had

implicated himself in Lacy Chandler’s murder. The panel

held that the California Supreme Court’s determination that

the undisclosed evidence was not material at the guilt or

penalty phase of the proceedings was not contrary to or an

unreasonable application of Brady, nor did it amount to an

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

OCHOA V. DAVIS 3

unreasonable determination of the facts in light of the

circumstances.

Ochoa argued that his trial counsel rendered ineffective

assistance under Strickland v. Washington, 466 U.S. 688

(1984), during the penalty phase by failing to dig further into

the conditions in which Ochoa lived as a child and into his

family’s history of mental health issues and violence. The

panel held that even if counsel’s performance was deficient,

which is far from clear, the California Supreme Court’s

determination that the alleged deficiency did not cause

prejudice to Ochoa was not unreasonable.

Ochoa asserted that because trial counsel failed to present

the additional mitigation evidence at issue in the ineffective-

assistance claim, his death sentence violates the Eighth

Amendment in that the jury’s verdict was not based on

consideration of all the available mitigating evidence and

therefore was not a reliable finding of death. The panel wrote

that because the California Supreme Court did not

unreasonably decide that Ochoa’s counsel was not ineffective

under Strickland, it follows that his punishment is not a

violation of his Eighth Amendment right based on trial

counsel’s performance and the mitigation evidence they

failed to present. The panel noted that Ochoa provided no

support for his legal theory that ineffective assistance can

support a separate Eighth Amendment claim. In addition, the

panel wrote that this claim is barred because the right asserted

by Ochoa had not been recognized by the Supreme Court

prior to the time his conviction became final.

Ochoa contended that his right to be free from cruel and

unusual punishment under the Eighth and Fourteenth

Amendments was violated when, during the penalty phase of

4 OCHOA V. DAVIS

the proceedings, the trial court (1) refused to instruct the jury

that it could consider sympathy for Ochoa’s family;

(2) permitted the prosecutor to argue that family sympathy

was not an appropriate factor; and (3) prohibited him arguing

that family sympathy evidence was an appropriate mitigating

factor. The California Supreme Court held that the trial court

did not err because: (1) no clearly established federal law

required the court to instruct the jury as to family sympathy;

(2) neither the trial court’s instructions nor the prosecutor’s

argument precluded the jury from considering family

sympathy evidence as indirect evidence of Ochoa’s character

or the circumstances of the offenses charged; and (3) the

court did not prohibit Ochoa from arguing that family

sympathy was relevant. The panel held that the California

Supreme Court’s conclusion was not contrary to or an

unreasonable application of clearly established law or an

unreasonable determination of the facts in light of the

circumstances.

Ochoa contended that his privilege against self-

incrimination under the Fifth and Fourteenth Amendments, as

set forth in Simmons v. United States, 390 U.S. 377 (1968),

was violated when the trial court considered his suppression

hearing testimony about the night Chandler was killed in

deciding his post-conviction motion for a new trial. The

panel held that the California Supreme Court’s decision on

the merits regarding Ochoa’s suppression hearing testimony

was not contrary to or an unreasonable application of

Simmons or any other clearly established federal law. The

panel explained that Simmons, which bars the admission of a

defendant’s suppression hearing testimony as evidence

against the defendant at trial on the on the issue of guilt, does

not dictate that suppression hearing statements cannot be

considered in proceedings outside the guilt phase or for

OCHOA V. DAVIS 5

purposes other than establishing substantive guilt at trial. The

panel held that even if Ochoa had demonstrated a

constitutional violation, the California Supreme Court’s

determination was reasonable. Noting as well that Ochoa

seeks to expand Simmons and establish a new rule of

constitutional jurisprudence on collateral review, the panel

wrote that Teague v. Lane, 489 U.S. 288 (1989), precludes the

application of Ochoa’s proposed rule retroactively in his

federal habeas proceedings.

The panel declined Ochoa’s request to expand the

certificate of appealability to include his claim that his right

to due process, as set forth in In re Winship, 397 U.S. 358

(1970), and Apprendi v. New Jersey, 530 U.S. 466 (2000),

and its progeny, was violated because the penalty phase jury

instructions failed to direct the jury that it was required to

find, beyond a reasonable doubt, that aggravating

circumstances existed and outweighed the mitigating

circumstances.

COUNSEL

James S. Bisnow (argued), Law Offices of James S. Bisnow,

Pasadena, California; Joseph F. Walsh (argued), Los Angeles,

California; for Petitioner-Appellant.

Stephanie C. Santoro (argued) and Dana Muhammad Ali,

Deputy Attorneys General; Lance E. Winters, Senior

Assistant Attorney General; Gerald A. Engler, Chief

Assistant Attorney General; Rob Bonta, Attorney General;

Attorney General’s Office, Los Angeles, California; for

Respondent-Appellee.

6 OCHOA V. DAVIS

OPINION

CLIFTON, Circuit Judge:

Petitioner Lester Ochoa appeals from the district court’s

denial of his habeas corpus petition, under 28 U.S.C. § 2254,

challenging the constitutionality of his conviction and death

sentence imposed in California state court. Ochoa was

convicted in a single trial in 1988 for a series of violent

crimes against three female victims over a six-month period

the previous year, including murder, kidnapping, forcible

rape, and assault with a deadly weapon. See People v. Ochoa,

966 P.2d 442, 458 (Cal. 1998).

Ochoa’s conviction and death sentence were appealed to

the California Supreme Court, which affirmed the judgment

in its entirety. Id. Ochoa twice sought habeas relief from the

California Supreme Court, but those petitions were denied.

Ochoa commenced federal habeas proceedings in the United

States District Court for the Central District of California.

The district court denied and dismissed Ochoa’s habeas

corpus petition, declined to issue a certificate of appealability

on any of the claims, and entered judgment. See Ochoa v.

Davis, No. CV 99-11129, 2016 WL 3577593, at *1, *144

(C.D. Cal. June 30, 2016).

Ochoa requested a certificate of appealability from this

court on seven of the claims presented in his habeas petition.

His request was granted as to five of the claims: (1) a claim

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), asserting

a due process violation resulting from the prosecutor’s failure

to disclose jailhouse informant statements that appeared to

impeach a key witness against him by implicating that

witness in the murder charged; (2) a claim pursuant to

OCHOA V. DAVIS 7

Strickland v. Washington, 466 U.S. 688 (1984), asserting

ineffective assistance of counsel at the penalty phase of his

trial; (3) a claim asserting a violation of the Eighth

Amendment due to arguments not made by Ochoa’s trial

counsel at the penalty phase; (4) a claim asserting a violation

of the Eighth Amendment prohibition on cruel and unusual

punishment resulting from the trial court’s refusal to instruct

the jury that it could consider sympathy for Ochoa’s family

as a mitigating factor at the penalty phase; and (5) a claim

pursuant to Simmons v. United States, 390 U.S. 377 (1968),

asserting a violation of the privilege against self-

incrimination resulting from the trial court’s consideration of

Ochoa’s suppression hearing testimony in deciding his post-

conviction motion for a new trial. The parties briefed those

certified issues. Ochoa also briefed a sixth, uncertified claim,

asserting a due process violation resulting from the trial

court’s asserted failure to require that the jury find, beyond a

reasonable doubt, that aggravating circumstances existed and

that the aggravating circumstances outweighed the mitigating

circumstances.

We affirm the district court’s denial of Ochoa’s habeas

corpus petition. Ochoa has failed to establish that the

California Supreme Court’s decision was contrary to or

constituted an unreasonable application of clearly established

federal law or an unreasonable factual determination in light

of the circumstances with respect to any of his claims. See

28 U.S.C. § 2254(d)(1), (2). We decline to expand the

certificate of appealability to reach the uncertified claim

because Ochoa has failed to demonstrate that the accuracy of

the district court’s resolution of that claim is reasonably

debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

8 OCHOA V. DAVIS

I. Background

The following factual summary is drawn from the

California Supreme Court’s 1998 opinion. See Ochoa,

966 P.2d 442 (providing a more detailed discussion of the

facts surrounding Ochoa’s conviction and subsequent

proceedings).

A police officer found the body of sixteen-year-old Lacy

Chandler at a school in Baldwin Park, California, on June 18,

1987, at approximately 7:30 am. See Ochoa, 966 P.2d

at 460–61. Chandler’s body was found near an incinerator,

bloody and with knife wounds. Id. at 461. Chandler was last

seen by her boyfriend when she dropped him off for work at

approximately 3:00 am that morning. Id. at 460–61. A

forensic examination of Chandler’s body revealed twenty-

three stab wounds, averaging four inches in depth. Id. at 460.

Marks on the ground at the crime scene indicated that

Chandler’s body had been dragged back and forth about ten

feet before it was left near the incinerator. Id. at 461. An

investigator took casts of shoe prints located about twenty

feet from Chandler’s body, of which there was only one clear

type. Id.

Officers began to investigate Ochoa after hearing from

Edward Ramage that, earlier that year, Ramage had

interrupted Ochoa raping another woman, C.J., at the same

school where Chandler’s body had been found. See id.

at 458–61, 465. Ochoa was charged and convicted of that

crime in the same trial, as described below at 10–11. Ramage

subsequently admitted that he had himself participated in the

rape of C.J. 966 P.2d at 459.

OCHOA V. DAVIS 9

Officers asked Ochoa if he would be willing to take a

voluntary polygraph examination at the Baldwin Park Police

Station. Id. at 465. Ochoa agreed. Id. During the polygraph

examination, Ochoa confessed to killing Chandler and offered

to produce the murder weapon. Id. at 466. Ochoa

accompanied an officer to retrieve the knife that Ochoa said

he used to kill Chandler. Id. Upon returning to the police

station, Ochoa gave a taped confession in the presence of two

officers. Id. at 461, 467.

In his taped confession, Ochoa said that on the night in

question he had been high on cocaine. Id. at 462. Ochoa

explained that he was walking down a street at approximately

3:00 am on June 18, 1987, when he saw a blonde girl, who

turned out to be Chandler, near a car. Id. at 461. Ochoa said

that he approached Chandler with a knife in hand and took

her to the school where the two engaged in intercourse. Id.

Ochoa said that he stabbed Chandler to death because he was

afraid that she might report him. Id. at 462. Ochoa admitted

to dragging Chandler’s body to the incinerator. Id. Ochoa

denied having raped other women in the past. Id. Ochoa said

that he originally hid the murder weapon in his home, but

later moved it to where it was ultimately recovered. Id.

Before trial, Ochoa moved to suppress his taped

confession and exclude the knife recovered as a result of his

confession. Id. at 464. After holding a hearing on Ochoa’s

motion and considering the relevant testimony, the trial court

denied the suppression motion. Id. at 464, 469–70. The

prosecutor introduced Ochoa’s taped confession at trial. Id.

at 461. Ochoa did not testify at trial. Id. at 463.

A criminalist compared plaster shoe print casts and

photographs of the crime scene with the soles of Ochoa’s

10 OCHOA V. DAVIS

shoes and testified that one of his shoes had sole patterns and

a size consistent with the crime scene evidence but noted that

there was not enough detail to produce an exact match. Id. A

serologist testified that the blood evidence was inconclusive

as to whether any of the semen found on Chandler’s pants or

recovered from samples taken from Chandler’s body

belonged to Ochoa or as to whether blood found on the knife

that Ochoa produced belonged to Chandler. Id. Toxicological

results did not reveal any trace of cocaine or other commonly

abused drugs in Chandler’s blood. Id.

The prosecutor called Ramage to testify in its case in

chief. Id. at 462. Ramage denied any involvement in

Chandler’s murder. Id. at 458, 462. Ramage admitted that he

and Ochoa had raped C.J. in January of 1987, after

consuming a quarter of a gram of cocaine together. Id. at 459.

Ramage testified that Ochoa had wanted to kill C.J. but that

Ramage had convinced Ochoa to let her go. Id. Ramage

acknowledged that he had entered into a plea agreement

regarding the crimes against C.J., received an eight-year

prison sentence for his involvement, and agreed to testify in

Ochoa’s case. Id. at 462. Ochoa sought to impeach Ramage’s

credibility as a witness and suggest to the jury that Ramage

killed Chandler. Id.

Ochoa was prosecuted in the same trial for his actions

against C.J. The victim testified that Ochoa and Ramage

kidnapped and raped her on January 28, 1987. Id. at 458–60.

Although the assailants were unknown to her at the time of

the rape, C.J. was later able to identify Ochoa and Ramage

from two separate photograph six-packs. Id. at 459–60. C.J.

explained that, as she was returning home just before

midnight, Ochoa grabbed her from behind, forced her behind

a garbage dumpster, and demanded money. Id. at 458. At that

OCHOA V. DAVIS 11

point, Ramage arrived. Id. Ochoa and Ramage took C.J. to a

nearby school where they blindfolded her and forced her to

remove her clothes and to get down on her hands and knees.

Id. The two men then raped C.J. over the course of three

hours. Id. at 458–59. C.J. recalled that Ochoa appeared to be

in charge, that Ramage shook when he touched her, and that

Ramage asked Ochoa not to hurt her. Id.

Ochoa was also prosecuted in the trial for crimes against

a third victim, Ochoa’s sister-in-law, Y.A. She testified about

an incident on May 23, 1987, where Ochoa entered her home

without permission and lay in wait behind the front door. Id.

at 460. When Y.A. entered her home Ochoa grabbed her, held

a knife to her neck, forced her into a bedroom, and choked

her until she became unconscious. Id. Ochoa’s attack on Y.A.

ended when Ochoa was interrupted by Y.A.’s cousin, whom

Y.A. instructed to call the police. Id.

The jury found Ochoa guilty of committing crimes against

all three victims. With respect to the crimes against sixteen-

year-old Chandler, the jury convicted Ochoa of first-degree

murder, forcible rape, and kidnapping. Id. at 458, 464. The

jury found true two special circumstances in connection with

Chandler’s murder: that the murder occurred during the crime

of kidnapping and that the murder occurred during the crime

of rape. Id. at 458. Following a separate penalty phase trial,

the same jury imposed a death sentence for the murder

conviction, and the trial court refused to modify the death

sentence. Id. In addition to the death sentence, the court also

sentenced Ochoa to six years for the forcible rape conviction

and five years for the kidnapping conviction, each term to run

consecutively, but stayed both sentences.

12 OCHOA V. DAVIS

As for the crimes against C.J., the jury found Ochoa

guilty of “kidnapping for robbery, simple kidnapping,

robbery, forcible rape, forcible rape in concert, forcible oral

copulation, forcible oral copulation in concert, rape by means

of a foreign object (namely fingers), attempted forcible

sodomy, and attempted forcible sodomy in concert.” Id. The

trial court imposed a sentence of life with possibility of

parole for the kidnapping for robbery conviction. The court

sentenced Ochoa to five years for simple kidnapping, three

years for robbery, six years for forcible rape, seven years for

forcible rape acting in concert, six years for forcible oral

copulation, seven years for forcible oral copulation acting in

concert, six years for rape by a foreign object, three years for

attempted forcible sodomy, and three and a half years for

attempted forcible sodomy in concert. The court ordered the

convictions for rape by a foreign object, attempted forcible

sodomy, and attempted forcible sodomy in concert to run

concurrently to any other conviction. The court ordered the

remainder of the sentences to run consecutively but stayed

those sentences.

Finally, as for the crimes against Y.A., the jury found

Ochoa guilty of two counts of assault with a deadly weapon

by means of force likely to cause great bodily injury, assault

with intent to rape, and residential burglary. Id. The court

sentenced Ochoa to three years and one year for the two

counts of assault with a deadly weapon or by means of force

likely to produce great bodily injury, four years for assault

with intent to commit rape, and four years for the burglary

with a additional one-year enhancement for use of a deadly

weapon. The court ordered each of the sentences to run

consecutively and to be stayed.

OCHOA V. DAVIS 13

Following his conviction and the imposition of a death

sentence, Ochoa filed a motion for a new trial based, in part,

on newly discovered evidence, which he asserted the

prosecutor failed to disclose in violation of Ochoa’s due

process rights under Brady v. Maryland, 373 U.S. 83 (1963).

After a hearing, the trial court denied Ochoa’s motion for a

new trial. Ochoa, 966 P.2d at 516.

Ochoa’s conviction and death sentence were

automatically appealed to the California Supreme Court. On

direct appeal, the California Supreme Court affirmed Ochoa’s

judgment of conviction and death sentence. See generally

Ochoa, 966 P.2d 442. The United States Supreme Court

denied his petition for writ of certiorari. See Ochoa v.

California, 528 U.S. 862 (1999). Following his direct appeal,

Ochoa filed two state habeas corpus petitions in the

California Supreme Court, one in 1997 and the other in 2002.

See In re Ochoa, S064794, 1998 Cal. LEXIS 7406, at *1

(Nov. 5, 1998); In re Ochoa, S109935, 2003 Cal. LEXIS

2047, at *1 (Mar. 26, 2003). Both state habeas petitions were

summarily denied.

Ochoa commenced habeas proceedings in the United

States District Court for the Central District of California in

1999. Ochoa filed the operative pleading, the Third Amended

Petition (“Petition”), on December 18, 2007. In 2016, the

district court denied and dismissed the Petition, declined to

issue a certificate of appealability, and entered judgment.

Ochoa timely appealed and requested a certificate of

appealability from this court. This court granted that request

as to five of seven issues, as described above at 6–7.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253.

14 OCHOA V. DAVIS

II. Standards of Review

We review de novo the district court’s denial of Ochoa’s

Petition. See Gulbrandson v. Ryan, 738 F.3d 976, 986 (9th

Cir. 2013).

As Ochoa filed his habeas petition after April 24, 1996,

our review is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.

See Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004).

AEDPA bars the relitigation of any claim adjudicated on the

merits by a state court unless one of two narrow exceptions

set forth in 28 U.S.C. § 2254(d)(1) or (2) applies. Harrington

v. Richter, 562 U.S. 86, 98 (2011). We presume that the state

court adjudicated each claim “on the merits in the absence of

any indication or state-law procedural principles to the

contrary.” Id. at 99. Relitigation is barred unless the state

court’s decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,” at

the time the state court adjudicated the claim, 28 U.S.C.

§ 2254(d)(1), or (2) “based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2). Accordingly, AEDPA

confirms a federal court’s “authority to issue [a] writ in cases

where there is no possibility fairminded jurists could disagree

that the state court’s decision conflicts with [the United States

Supreme] Court’s precedents.” Richter, 562 U.S. at 102; see

Williams v. Taylor, 529 U.S. 362, 412–13 (2000). The

petitioner bears the burden of proof under AEDPA. Richter,

562 U.S. at 98. AEDPA demands a “highly deferential”

review of state courts, giving those decisions the “benefit of

the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)

(internal quotation marks and citation omitted).

OCHOA V. DAVIS 15

“The ‘contrary to’ and ‘unreasonable application’ clauses

of § 2254(d)(1) have independent meaning.” Cook v. Kernan,

948 F.3d 952, 965 (9th Cir. 2020). A state court’s decision is

“contrary to” clearly established federal law if it fails to apply

controlling authority, “applies a rule that contradicts the

governing law,” or “confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court”

and reaches a different result. Id. (quoting Williams, 529 U.S.

at 405–06). A decision is an “unreasonable application” of

clearly established federal law if it “correctly identifies the

governing legal rule but applies it unreasonably to the facts”

of the case. Id. (quoting Williams, 529 U.S. at 407–08); see

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“The

‘unreasonable application’ clause requires the state court

decision to be more than incorrect or erroneous.”).

Under 28 U.S.C. § 2254(d)(2), “a state-court factual

determination is not unreasonable merely because the federal

habeas court would have reached a different conclusion in the

first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).

Rather, a finding is unreasonable if an appellate court “could

not reasonably conclude that the finding is supported by the

record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.

2004), abrogation on other grounds as recognized by Murray

v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014).

“[D]etermining whether a state court’s decision resulted

from an unreasonable legal or factual conclusion does not

require that there be an opinion from the state court

explaining the state court’s reasoning.” Richter, 562 U.S. at

98. Even when a state court has issued a summary denial, the

petitioner must show that there was no reasonable basis for

the state court to deny relief. See id. Pursuant to § 2254(d),

federal courts must consider what theories supported, or

16 OCHOA V. DAVIS

could have supported, the state court’s decision and ask

whether the theories are inconsistent with Supreme Court

precedent. Id. at 102. AEDPA does not require citation—or

even awareness—of Supreme Court precedent “so long as

neither the reasoning nor the result of the state-court decision

contradicts” precedent. Early v. Packer, 537 U.S. 3, 8 (2002)

(per curiam).

III. Discussion

Ochoa presents six constitutional claims, five certified

and one uncertified. We first address the two claims discussed

at oral argument—the Brady and Strickland

claims—followed by the remaining certified claims, and,

finally, the uncertified claim.

A. Brady Due Process Claim

Ochoa contends that his right to due process under the

Fifth and Fourteenth Amendments, as established by Brady

v. Maryland, 373 U.S. 83 (1963), was violated when the

prosecutor failed to disclose that three jailhouse informants

had told state police officers that Ramage had implicated

himself in Chandler’s murder. The California Supreme Court

concluded that the informants’ evidence “was not material

either as to guilt or penalty,” and thus, there had been no due

process violation warranting a new trial. Ochoa, 966 P.2d

at 516–18. The district court concluded that the California

Supreme Court’s denial of Ochoa’s Brady claim “did not

amount to an unreasonable application of clearly established

federal law” or “an unreasonable determination of the facts in

light of the evidence” because all of the evidence in the

record pointed to Ochoa’s guilt and because Ochoa’s

confession, knowledge of the location of the murder weapon,

OCHOA V. DAVIS 17

and the forensic evidence contradicted the jailhouse

informants’ testimony. Ochoa, 2016 WL 3577593, at *30.

1. Legal Standard

State prosecutors have a duty under the Fourteenth

Amendment Due Process Clause to disclose certain evidence

to criminal defendants. See Brady, 373 U.S. at 87; United

States v. Bagley, 473 U.S. 667, 674–77 (1985). In Brady, the

Supreme Court held that “suppression by the prosecution of

evidence favorable to an accused . . . 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.” 373 U.S. at 87. A successful Brady claim

requires a showing that the evidence was: (1) favorable to the

accused; (2) suppressed by the prosecution; and

(3) prejudicial. See Strickler v. Greene, 527 U.S. 263, 281–82

(1999).

“Any evidence that would tend to call the government’s

case into doubt is favorable for Brady purposes,” Milke v.

Ryan, 711 F.3d 998, 1012 (9th Cir. 2013), including

exculpatory and impeachment evidence, Comstock v.

Humphries, 786 F.3d 701, 708 (9th Cir. 2015) (citing

Strickler, 527 U.S. at 281–82). Evidence may be deemed

“suppressed” for the purpose of Brady even where the failure

to disclose favorable evidence was unintentional, see Benn v.

Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002), or where the

prosecutor was unaware that others, acting on the

government’s behalf, had such evidence, see Kyles v. Whitley,

514 U.S. 419, 437 (1995). “The terms ‘material’ and

‘prejudicial’ are used interchangeably in Brady cases.” Benn,

283 F.3d at 1053 n.9. The prosecution’s failure to disclose

evidence is prejudicial “if there is a reasonable probability

18 OCHOA V. DAVIS

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different.” Bagley,

473 U.S. at 682 (opinion of Blackmun, J.); see Kyles,

514 U.S. at 433–34. A “reasonable probability” of a different

result exists when the failure to disclose “undermines

confidence in the outcome of the trial.” Bagley, 473 U.S.

at 678 (majority opinion). “The question is not whether the

defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence

[the defendant] received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles, 514 U.S.

at 434.

2. Motion for a New Trial

As discussed above at 10, at Ochoa’s trial, Ramage

testified for the prosecution and admitted that he and Ochoa

had raped C.J. at the same school where Chandler’s body was

later found. Ochoa, 966 P.2d at 458–59.

Following his conviction and sentencing, Ochoa filed a

motion for a new trial asserting that the prosecutor failed to

disclose statements from three jailhouse informants, Richard

Slawinski, Willie Ray Battle, and Dennis Austin, about

conversations in which Ramage implicated himself in

Chandler’s murder. Id. at 515–16. Ochoa argued that the

undisclosed statements were relevant to impeach Ramage’s

testimony because Ramage testified that he was not involved

in and had no direct knowledge of Chandler’s murder. Id. At

a hearing on the motion, the trial court heard testimony from

the three jailhouse informants, several law-enforcement

officers, Ochoa’s defense investigator, and Ramage. Id.

at 515–17.

OCHOA V. DAVIS 19

Slawinski submitted a written statement and testified

regarding what he alleged Ramage told him while the two

were housed together in 1988. Id. at 515. Slawinski asserted

that Ramage told him that he had been involved in the murder

of a sixteen- or seventeen-year-old girl at a school with

Ochoa. Id. Slawinski recalled that Ramage told him that

Ramage, Ochoa, and the girl went to the school to get high on

cocaine. Id. Slawinski said that Ramage told him that the girl

attempted to escape after Ochoa voiced his intent to rape her

but that Ramage pulled her off a fence and held her down

while Ochoa stabbed her approximately twenty times. Id.

Slawinski testified that he relayed Ramage’s statements to

Baldwin Park Police Department Sergeant Richard Valdemar.

Id. On cross-examination, Slawinski conceded that, although

he spoke to Ramage about forty to fifty times about the

murder, he could not recall many additional details of the

conversation. Id. Slawinski admitted to being a long-time

informant and providing information to Sergeant Valdemar

in approximately ten to twenty criminal cases. Id. Slawinski

denied asking Sergeant Valdemar for any benefits in

exchange for informing. Id. The prosecution impeached that

denial with evidence that Slawinski gave information to the

Pomona Police Department related to another case to avoid

a prison sentence and to obtain a plea agreement. Id.

Stanley White, one of the detectives who handled the

investigation of Chandler’s murder, confirmed that Sergeant

Valdemar called him to inform him of Slawinski’s

statements. Id. at 515–16. White testified that he discounted

Slawinski’s statements because he generally believed

jailhouse informant statements to be “highly inaccurate” and

because he was convinced, by both the physical evidence and

Ochoa’s confession, that there was no one else involved in

Chandler’s murder. Id.

20 OCHOA V. DAVIS

Battle similarly submitted a written statement and

testified that Ramage had confessed to participating in

Chandler’s murder. Id. at 516. Battle testified that Ramage

stated that he and Ochoa had raped “a young girl, about 15”

at the place of a prior rape and that Ochoa subsequently

stabbed the girl to death. Id. Battle said that he did not inform

law enforcement about Ramage’s statements because he was

scheduled to be released from jail the following month. Battle

admitted to having served as an informant approximately one

hundred times, giving statements in thirteen murder cases,

and testifying in seven. Id. Battle conceded that he expected

that he would receive a benefit “for giving truthful statements

against Ramage.” Id.

Austin testified that Ramage informed him that Ramage

and Ochoa had “part[ied]” and “g[otten] high on coke” at a

school with a sixteen- or seventeen-year-old girl with whom

they intended to have sex. Id. Austin stated that Ramage told

him that the girl panicked and tried to run but that Ramage

grabbed her feet and Ochoa stabbed her. Id. Austin said that

he called Baldwin Park police to report Ramage’s confession

and spoke to a police officer, telling the officer that he had

information about “Lester Ochoa and Eddie Ramage being

involved” in a crime involving a sixteen- or seventeen-year-

old stabbing victim. Austin did not go into great detail with

the officer because he was told that the case was already

being handled. Id.

Ochoa’s defense investigator, Gordon Zbinden, testified

that, before trial, he told the prosecutor that he believed at

least two people had been involved in Chandler’s murder. Id.

Zbinden based his opinion on his seventeen years of

experience in law enforcement and the physical evidence. Id.

OCHOA V. DAVIS 21

The prosecutor called Ramage to testify at the new trial

hearing. Id. Ramage stated, as he had at the trial, that he had

not been involved in any crimes against Chandler. Id.

Ramage testified that he had shared a cell with Slawinski and

that Battle was housed in an adjoining cell. Id. Ramage said

that he sought Slawinski’s and Battle’s advice because they

were long-time informants and knew how the “game

work[ed].” Ramage testified that he told the informants about

his participation in the assault on C.J., that he was testifying

against Ochoa, and that he was not involved in Chandler’s

murder. Id. Ramage said that the information he gave the

informants about Chandler’s murder, including the number of

times Chandler had been stabbed, came from a detective on

the case. Id.

The trial court denied Ochoa’s motion for a new trial,

deciding that although the prosecution had an obligation to

turn over the undisclosed evidence, its failure to do so did not

constitute a denial of due process or undermine Ochoa’s right

to a fair trial. Id. at 516–17. The trial court noted that the jury

was in fact presented with evidence undermining Ramage’s

credibility. Id. Moreover, the trial court reasoned that

regardless of the effect the informants’ statements might have

had on Ramage’s credibility, the informants’ statements were

undermined by the physical evidence. Id.

3. California Supreme Court Decision

The California Supreme Court held on direct appeal that,

although the prosecution should have disclosed Slawinski’s

and Austin’s statements to Ochoa, the statements were not

material under Brady, and accordingly, no due process

violation had occurred. Ochoa, 966 P.2d at 517–18.

22 OCHOA V. DAVIS

Discussing the materiality standard set forth in the United

States Supreme Court decisions in Bagley and Kyles, the

California Supreme Court concluded that the prosecutor’s

failure to disclose the informants’ statements, although a

discovery violation, was not a due process violation that

undermined the fairness of Ochoa’s trial. Id. The California

Supreme Court determined that the evidence would not have

raised “a significant question about Ramage’s credibility.” Id.

at 518. The court reasoned that Ramage’s credibility “would

have been extraordinarily difficult to impeach” because

Ramage volunteered information that he knew would

implicate him in the crimes against C.J. at a time when he

was not suspected of any wrongdoing. Id. Moreover, the

California Supreme Court reasoned that the testimony of the

jailhouse informants was not credible and would likely have

been impeached at trial. Id. In addition, the California

Supreme Court noted that although the jailhouse informants’

testimony might have implicated Ramage in Chandler’s

murder, it also would have reinforced the evidence against

Ochoa, such that it was unlikely that the evidence would even

have been introduced as part of his defense. Id. at 517.

4. Analysis

As an initial matter, Ochoa argues that we should not

afford AEDPA deference to the California Supreme Court’s

review of his Brady claim because the decision was

objectively unreasonable because it failed to address whether

the undisclosed evidence was material at the penalty phase of

the proceedings. In effect, Ochoa asks us to review his Brady

claim de novo. That argument lacks merit. The California

Supreme Court explicitly stated that the undisclosed evidence

“was not material either as to guilt or penalty,” and held that

the prosecutor’s failure to disclose the evidence “did not . . .

OCHOA V. DAVIS 23

make the entire guilt or penalty phase fundamentally unfair,

much less the trial as a whole.” Ochoa, 966 P.2d at 517

(emphases added). A state court decision is not unreasonable

merely because the decision did not include a detailed

explanation of the court’s reasoning. Richter, 562 U.S. at 98.

Ochoa has the burden of demonstrating that there was no

reasonable basis for the state court’s determination. Id.

Accordingly, we apply AEDPA deference to the California

Supreme Court’s denial of Ochoa’s Brady claim.

The parties do not dispute that Slawinski’s and Austin’s

statements regarding Ramage’s alleged involvement in

Chandler’s murder were suppressed by the prosecution. As

the trial court and California Supreme Court observed, the

prosecution had an obligation under Brady to disclose to the

defense the jailhouse informants’ statements known to law

enforcement.1

Ochoa contends that the undisclosed evidence was

favorable and material at the penalty phase of his trial. Ochoa

reasons that the jury might have imposed a life sentence

rather than a death sentence if it heard the evidence of

Ramage’s involvement on the theory that a death sentence

would have seemed to the jury extremely disproportionate to

Ramage’s eight-year sentence for a related crime and to no

punishment for the rape and murder of Chandler.

1

As Battle never informed law enforcement regarding his

conversations with Ramage, his statements could not have been

suppressed within the meaning of Brady, though his subsequent testimony

was arguably relevant to bolster the evidence regarding the information

passed to law enforcement by the other informants.

24 OCHOA V. DAVIS

First, the California Supreme Court noted that each of the

jailhouse informants testified that Ramage told them that

Ochoa participated in Chandler’s murder and described

Ochoa as stabbing Chandler while Ramage held her feet.

Ochoa, 966 P.2d at 516–17. The court reasoned that, given

that the informants’ statements reinforced the evidence

against Ochoa, it is unlikely that Ochoa would have

introduced the statements at trial had they been disclosed

because they corroborated the most serious charge against

him. Id. at 517. That determination was not unreasonable.

Although Ochoa may be correct that the jailhouse

informants’ statements were relevant to impeach Ramage’s

testimony by suggesting Ramage’s involvement in Chandler’s

murder, the materiality determination is not a question of

relevance, but prejudice. We must ask whether the

prosecutor’s failure to disclose the statements “undermines

confidence in the outcome” of Ochoa’s trial and sentence.

Bagley, 473 U.S. at 678. For that reason, the question of

materiality or prejudice “must be analyzed in the context of

the entire record.” Benn, 283 F.3d at 1053 (internal quotation

marks and citation omitted). We must assess “the nature and

strength of both the evidence the defense was prevented from

presenting and the evidence each side presented at trial” to

determine whether Ochoa was prejudiced. Bailey v. Rae,

339 F.3d 1107, 1119 (9th Cir. 2003) (internal quotation marks

and citation omitted).

The California Supreme Court’s conclusion that the

informants’ statements were not material was not contrary to

or an unreasonable application of Brady. The California

Supreme Court’s determination, that it would have been

difficult to impeach Ramage with the jailhouse informants’

statements, was not unreasonable in light of the

OCHOA V. DAVIS 25

circumstances. Ramage’s credibility was heavily bolstered, as

the California Supreme Court noted, by the fact that he

knowingly subjected himself to criminal liability for the

assault on C.J. when he chose to inform and testify regarding

Ochoa’s involvement in Chandler’s murder. Ochoa, 966 P.2d

at 518. On the other hand, the trial court found that the

jailhouse informants lacked credibility. Id. The informants

were themselves impeached based on their extensive history

informing for the state in other cases and the admitted

benefits they received or hoped to receive for testifying in

Ochoa’s case. In addition, as the district court noted, the

jailhouse informants’ statements were inconsistent with

Ochoa’s taped confession and the crime scene evidence. See

Ochoa, 2016 WL 3577593, at *30. In his taped confession,

Ochoa did not implicate Ramage or indicate that he had acted

in concert with another individual in killing Chandler. Ochoa,

966 P.2d at 461–62. The crime scene had shoe prints made by

only one type of shoe, a type consistent with Ochoa’s, further

indicating that Ochoa acted alone. Id. at 461, 463. As the trial

court and California Supreme Court noted, despite statements

by Slawinski and Austin that Ramage said Chandler had used

cocaine shortly before her death, the autopsy revealed no

trace of cocaine or other drugs in her blood. Id. at 463,

516–17. It was not unreasonable for the trial court and the

California Supreme Court to conclude that the undisclosed

jailhouse informants’ statements were not credible and would

have been of little persuasive value if introduced at trial.

Moreover, viewing the undisclosed statements in the

context of the entire record, we note that the jury did hear

other impeachment evidence regarding Ramage. The jury

heard from Baldwin Park Police Detective Aquino that two

civilians informed him that Ramage told the civilians that he

had participated in Chandler’s murder. Id. at 463. The jury

26 OCHOA V. DAVIS

heard evidence that Ramage routinely carried a buck knife

and used drugs. Id. at 463, 482. The jury heard that Ramage

confessed to participating in the assault on C.J. Id. at 459.

Similarly, the jury heard Ramage testify that he spoke to the

police because he believed that others suspected him of being

involved in Chandler’s murder. Id. at 463. Finally, the jury

heard evidence that Ramage had sexually assaulted a girl

when she was eight or nine years old. Id. That evidence did

not persuade the jury that Ochoa was not guilty or should

receive a lesser punishment. It was not unreasonable for the

California Supreme Court to conclude that the information

that was withheld from Ochoa at the time would not have

made a difference.

We agree with the district court that the California

Supreme Court’s determination that the undisclosed evidence

was not material at the guilt or penalty phase of the

proceedings was not contrary to or an unreasonable

application of Brady, nor did it amount to an unreasonable

determination of the facts in light of the circumstances. See

Ochoa, 2016 WL 3577593, at *30.

B. Ineffective Assistance of Counsel Claim

Ochoa argues that his trial counsel was ineffective during

the penalty phase. Specifically, Ochoa alleges that his

attorneys and their investigators should have dug further into

the conditions in which he lived as a child and into his

family’s history of mental health issues and violence. Ochoa

argues that if counsel had asked more prying questions and

investigated his father’s criminal history, they would have

seen red flags that would have alerted them to the horror that

was Ochoa’s childhood.

OCHOA V. DAVIS 27

It is undisputed at this point that Ochoa’s childhood, as

elucidated by the habeas investigation and related witness

declarations, was far from a happy, stable one. However, it is

unclear what trial counsel knew of the true conditions of

Ochoa’s childhood. Perhaps more importantly, the California

Supreme Court appears to have determined that Ochoa did

not suffer prejudice from any shortcomings of his counsel’s

representation. We conclude that such a determination was

not unreasonable. As a result, this claim fails.

1. Legal Standard

To prove a constitutional violation for ineffective

assistance of counsel, Ochoa must show (1) “that counsel’s

performance was deficient,” and (2) “that the deficient

performance prejudiced the defense.” Strickland, 466 U.S.

at 687. “Establishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more

difficult.” Richter, 562 U.S. at 105. Under § 2254(d), Ochoa

must demonstrate that “it was necessarily unreasonable for

the California Supreme Court to conclude: (1) that he had not

overcome the strong presumption of competence; and (2) that

he had failed to undermine confidence in the jury’s sentence

of death.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

This review is therefore “doubly deferential” as we defer both

to the trial counsel’s tactical decisions and to the California

Supreme Court’s determination that the trial counsel was not

ineffective under Strickland. Id.

2. Decisions Below

The California Supreme Court summarily denied this

claim on the merits when it denied Ochoa’s state habeas

petitions without elaboration. The court did not specify

28 OCHOA V. DAVIS

whether Ochoa’s claim failed on the first Strickland prong,

the second, or both. In re Ochoa, 1998 Cal. LEXIS 7406,

at *1; In re Ochoa, 2003 Cal. LEXIS 2047, at *1.

The district court concluded that the California Supreme

Court did not unreasonably apply Strickland. The district

court noted an absence of evidence to suggest that counsel

should have discovered evidence of Ochoa’s bad childhood

and dysfunctional family. Ochoa, 2016 WL 3577593, at *69.

Ultimately, the district court concluded that counsel’s

strategy to portray Ochoa as a redeemable, good person who

only acted badly under the influence of drugs was reasonable.

Id. at *67–68. The court reasoned that the new evidence if

presented could have impacted the jury negatively because

the jury could have understood it to mean that his bad

behavior was not the result of drug abuse but instead that he

was a “fundamentally and perhaps organically flawed

character” who was “irretrievably broken.” Id. Thus, the

district court concluded that Ochoa’s counsel did not act

unreasonably and he was not prejudiced by his counsel’s

actions. Id. at *69.

3. Facts

During the penalty phase of Ochoa’s trial, his counsel

focused on his drug abuse. The district court aptly

characterized the penalty phase presentation as putting on

evidence of Ochoa being a “Jekyll and Hyde” of sorts—“a

good young man who was made into a monster by substance

abuse.” Id. The defense called as witnesses members of

Ochoa’s family, a childhood friend, victim Y.A., law

enforcement officers who had interacted with Ochoa, and an

expert on cocaine’s effect on the human body.

OCHOA V. DAVIS 29

During the penalty phase of the trial, Ochoa’s half-sister

testified that Ochoa was a fun-loving child and had many

friends. She also stated that Ochoa’s parents treated him well

and spoiled him. She testified that “conflict” was constant in

their home, but clarified that Ochoa was treated “very well”

by his parents and that “he had a pretty good childhood and

a lot of love.” When Ochoa was around fourteen or fifteen

years old, his half-sister saw his personality start to change;

he began using slang, and she assumed he was hanging

around with the wrong crowd. His childhood friend testified

that he and Ochoa started getting into trouble together when

they were twelve years old because they belonged to a gang

and were involved in activities including stealing, smoking,

and committing robberies. This friend had seen Ochoa use

several kinds of drugs, including PCP, cocaine, and heroin.

According to his family’s testimony, Ochoa became

plagued by drug abuse as a teenager and his drug abuse

continued until his arrest in this case. His personality when he

was high on drugs was very different than when he was sober.

When Ochoa was high on drugs, he acted belligerently and

people were afraid of him. His sister testified that when he

was high, he had physically abused his wife at least ten times

and fought with their father at least fifteen times.

The witnesses testified that Ochoa was not without the

ability to feel remorse. When Ochoa would return home after

getting high, he was often regretful and expressed the desire

to get help. Officer White testified that when Ochoa

confessed to the murder, he cried and asked for help “for

what he had done.” The witnesses also testified that Ochoa

could still contribute to society even if sentenced to life

imprisonment. A deputy sheriff testified that during the

month and a half that Ochoa was under his supervision in jail,

30 OCHOA V. DAVIS

Ochoa worked an eight-hour day performing clerical and

manual tasks. The officer observed that Ochoa was not

aggressive, was willing to work, and got along well with the

other prisoners. A consultant for the California Department

of Corrections opined that Ochoa would adjust well to prison

and be a productive prisoner as there was less access to drugs

in prison.

Habeas counsel argues that the picture painted of Ochoa’s

childhood at trial was false. Rather than the fun and loving

childhood that was presented to the jury, habeas counsel

describes Ochoa’s childhood as “an extremely toxic and

dysfunctional one” in “a macabre household consisting of an

alcoholic and abusive father and a weak, passive and

confused mother with a family history of mental illness and

a home where, incest and violence occurred almost daily.”

Habeas counsel argue that the penalty phase defense that

should have been presented was that Ochoa had mental

impairments and grew up under horrible conditions, which

led him to use drugs, and resulted in his crimes.

Habeas counsel collected declarations from Ochoa’s

family members, including his half-sister, his sister, his wife,

and his mother, who each had testified at the trial, as well as

childhood neighbors and friends, which substantiated that

version of the story. These declarations depicted a troubled

home life with physical and sexual violence, excessive

drinking, and a lack of parenting and stability. Although most

of the violence was directed at others, Ochoa witnessed much

of it. Some violence was directed at Ochoa, but he was

treated considerably better than his half-siblings. Most of the

violence was by Ochoa’s father, described in probation

records from before Ochoa’s birth as an “immature

psychopath” with “little moral insight.” The declarations also

OCHOA V. DAVIS 31

discussed the family history of Ochoa’s mother, including

mental illness, drug addiction, and alcoholism.

Habeas counsel asserts that these declarations show that

Ochoa “was a man born into a world in which he never had

a chance.” Habeas counsel argues that had the jury learned of

Ochoa’s true family history, it would have humanized him

and would have explained why Ochoa began using drugs. As

a result, according to habeas counsel, there was a reasonable

probability that the jury would have spared his life.

Habeas counsel also had Ochoa reevaluated for mental

illness. One of the evaluators, Richard Romanoff, Ph.D., a

psychologist who examined Ochoa in 2001, criticized the

evaluations conducted in 1988 as cursory. Both habeas

reports found that Ochoa had cognitive impairments. Most

notably, Dr. Kyle Boone, Ph.D., a neuropsychologist who

examined Ochoa in 2002, concluded that Ochoa “appears, to

some extent, to lack the basic ‘brain equipment’ with which

to make reasoned choices regarding his behaviors.”

4. Analysis

a. Prejudice

In assessing whether the California Supreme Court

reasonably concluded that Ochoa was not prejudiced by

counsel’s alleged failure to investigate and present mitigating

evidence, we must “reweigh the evidence in aggravation

against the totality of available mitigating evidence.”

Pinholster, 563 U.S. at 197–98 (quoting Wiggins v. Smith,

539 U.S. 510, 534 (2003)). A defendant must establish “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been

32 OCHOA V. DAVIS

different.” Strickland, 466 U.S. at 694. In a capital case, this

means a defendant must show “a reasonable probability that

at least one juror” would have voted for a life sentence.

Wiggins, 539 U.S. at 537.

Knowing that the “Jekyll and Hyde” penalty phase

presentation was unsuccessful, Ochoa now argues that the

failure to present the alternative defense focused on a horrific

family life supported with the additional mitigating evidence

prevented the jury from having a full picture of his

background. He alleges that providing the jury with facts

about his violent upbringing and dysfunctional family would

have humanized him and changed the weighing of the

aggravating and mitigating factors such that the jury would

not have recommended a death sentence.

That the penalty phase defense offered at trial was not

successful is not sufficient to make an ineffective assistance

of counsel argument. See Strickland, 466 U.S. at 689–90.

It was not unreasonable for the California Supreme Court

to find that the new evidence and arguments presented by

habeas counsel did not demonstrate trial counsel was

ineffective. The new evidence of Ochoa’s life history is of

little or even negative mitigating value compared to the

evidence presented at his trial. Ochoa’s habeas counsel argue

that if the evidence had been presented the jury would have

learned about Ochoa’s pervasive childhood exposure to

violence and alcohol. According to habeas counsel, at least

one juror would have concluded that Ochoa was a victim who

was less culpable due to this disadvantaged background. See

Boyde v. California, 494 U.S. 370, 382 (1990). But presenting

evidence of his father’s volatility and abusive behavior and

his mother’s family history of mental illness could have

OCHOA V. DAVIS 33

diminished the mitigating impact of Ochoa’s relationship

with his family and his positive character and background

attributes. See Pinholster, 563 U.S. at 201 (“The new

evidence relating to [defendant’s] family—their more serious

substance abuse, mental illness, and criminal problems —is

also by no means clearly mitigating, as the jury might have

concluded that [defendant] was simply beyond

rehabilitation.” (citation omitted)); Zapien v. Davis, 849 F.3d

787, 798 (9th Cir. 2015) (recognizing that mitigating

evidence of an abusive family “‘can be a two-edged sword

that a [jury] might find to show future dangerousness’ or use

to conclude that a defendant is ‘simply beyond

rehabilitation’” (quoting Pinholster, 563 U.S. at 201)). Ochoa

would no longer have been portrayed as a nice guy when

sober, but, rather, as a man who was fundamentally damaged.

Under the deferential standard, we ask if the California

Supreme Court’s determination that trial counsel’s strategy

did not prejudice Ochoa was unreasonable. Pinholster,

563 U.S. at 190. It was not.

Habeas counsel also had two mental health evaluations of

Ochoa conducted at San Quentin Prison. The new mental

health evaluations were also not necessarily mitigating. It was

not unreasonable for the California Supreme Court to

conclude that trial counsel was not ineffective for failing to

have such evaluations conducted or presenting such evidence

during the penalty phase of the trial. First, the evaluations

could have opened the door to the prosecution calling its own

rebuttal experts who may have countered the evaluations. See

id. at 201. Further, the jury may not have concluded that the

evidence presented by the habeas experts was mitigating.

Dr. Romanoff found Ochoa to be “an extremely fragile and in

many ways distrustful individual who was extremely

sensitive to any perceived rejection or disrespect,” a person

34 OCHOA V. DAVIS

with “significant antisocial traits” and one who was

“extremely damaged.” This evidence may have led the jury

to conclude that Ochoa was irretrievably damaged and there

was no reason to spare him. Dr. Boone similarly concluded

that Ochoa “appears, to some extent, to lack the basic ‘brain

equipment’ with which to make reasoned choices regarding

his behaviors.”

Moreover, the new mental health evaluations were

equivocal and inconclusive. For example, Dr. Romanoff

opined that Ochoa’s test results “open[ed] up the possibility

of underlying organic impairment in Mr. Ochoa that may well

have been present in him since birth,” impairments that may

have been caused by his mother’s drinking during her

pregnancy with Ochoa. Dr. Romanoff stated that more testing

would be required to “more fully explore th[ese]

possibilit[ies].” A jury could have determined that the

evaluations were of little value because they were

inconclusive.

Further, the California Supreme Court could have

reasonably concluded that the aggravating evidence

outweighed any possible mitigating value of habeas counsel’s

proposed penalty phase presentation. The aggravating

evidence included the underlying crimes of rape against C.J.,

the assault on Y.A., and the rape and murder of

sixteen-year-old Chandler, who was stabbed twenty-three

times. It also included evidence of two prior crimes of

violence by Ochoa, an attack on a woman in 1983 where

Ochoa pushed her into a car and repeatedly hit her in the

head, and a 1986 conviction for battery in which Ochoa

grabbed a man outside of a doughnut shop and then resisted

arrest. Ochoa, 966 P.2d at 494. The mitigating evidence

presented at the penalty phase included humanizing

OCHOA V. DAVIS 35

portrayals of Ochoa by his family and the hope that he could

be productive in prison without the presence of drugs. See id.

at 494–97. The new evidence regarding Ochoa’s

dysfunctional upbringing and mental health evaluations could

reasonably be concluded to not be so strong as to outweigh

the overwhelming aggravating evidence.2 There is far more

than just a “reasonable argument that counsel satisfied

Strickland’s deferential standard.” Richter, 562 U.S. at 105.

There is not nearly enough to justify holding, under

§ 2254(d)’s extremely deferential standard, that the denial of

relief by the California Supreme Court was unreasonable.

Ochoa relies on Porter v. McCollum, 558 U.S. 30 (2009),

James v. Ryan, 679 F.3d 780 (9th Cir. 2012), vacated and

remanded on other grounds, 568 U.S. 1224 (2013), and White

v. Ryan, 895 F.3d 641 (9th Cir. 2018), to support his claim. In

all three cases, the appellate court’s review of the prejudice

determination was de novo, without AEDPA deference.

Porter, 558 U.S. at 39; James, 679 F.3d at 803–04; White,

895 F.3d at 671. Thus, they “offer no guidance with respect

to whether a state court has unreasonably determined that

prejudice is lacking.” Pinholster, 563 U.S. at 202; see

Richter, 562 U.S. at 101 (“[A]n unreasonable application of

federal law is different from an incorrect application of

federal law.” (citation omitted)).

2

That the jury deliberated for only approximately five hours suggests

that additional mitigating evidence of dubious strength would not have

made a difference. Cf. United States v. Velarde-Gomez, 269 F.3d 1023,

1036 (9th Cir. 2001) (en banc) (“Longer jury deliberations weigh against

a finding of harmless error [because l]engthy deliberations suggest a

difficult case.” (internal quotation marks and citation omitted)).

36 OCHOA V. DAVIS

Even if the performance of trial counsel was deficient,

which, as we discuss briefly below, is far from clear, the

California Supreme Court’s determination that the alleged

deficiency did not cause prejudice to Ochoa was not

unreasonable. Pinholster, 563 U.S. at 200–02; see also id.

at 197–98; Richter, 562 U.S. at 101–03, 111–13; Woodford,

537 U.S. at 26–27 (concluding the California Supreme

Court’s decision was not objectively unreasonable when it

determined the circumstances of the crime and prior offenses

outweighed the potential mitigating evidence of a “troubled

family background”).

b. Deficiency

Trial counsel’s performance was deficient if, considering

all the circumstances, it “fell below an objective standard of

reasonableness . . . under prevailing professional norms.”

Strickland, 466 U.S. at 688. A federal court will only overturn

a state court’s determination if that determination was

unreasonable. See Richter, 562 U.S. at 105. Counsel’s

strategic choices are “virtually unchallengeable” and

generally should not be evaluated in hindsight. See

Strickland, 466 U.S. at 689–90. Instead, courts should “focus

on whether the investigation supporting counsel’s decision

not to introduce mitigating evidence of [petitioner’s]

background was itself reasonable.” Wiggins, 539 U.S. at 523

(citing Strickland, 466 U.S. at 691).

We agree with the district court that the California

Supreme Court was not unreasonable in determining that the

mitigation case presented by trial counsel was not

unreasonable, even in light of the new information. Ochoa,

2016 WL 3577593, at *67–69. We further agree that it was

not unreasonable for the California Supreme Court to

OCHOA V. DAVIS 37

conclude that trial counsel conducted an adequate

investigation3 and that no red flags existed to cue trial counsel

to conduct a further investigation. Id. at *69.

The California Supreme Court’s determination that the

Strickland claim was meritless was not unreasonable. Richter,

562 U.S. at 105. The California Supreme Court’s denial of

this claim was not an unreasonable application of clearly

established law or an unreasonable determination of the facts

in light of the evidence presented.

C. Eighth Amendment Claim Based on Failures of Trial

Counsel

Ochoa asserts that his death sentence is unconstitutionally

unreliable because his trial counsel failed to present the

additional mitigation evidence outlined in the ineffective

assistance of counsel claim above. In doing so, he essentially

presents his ineffective assistance of counsel argument under

a different constitutional label. He argues that the sentence is

legally infirm and violates his Eighth Amendment right

because the jury’s verdict was not based on consideration of

all the available mitigating evidence and that was not,

therefore, “a reliable finding of death.” The California

Supreme Court summarily denied this claim on the merits

without explanation. In re Ochoa, 1998 Cal. LEXIS 7406, at

3

Ochoa’s trial counsel completed the type and depth of investigation

our case law requires. See Summerlin v. Schriro, 427 F.3d 623, 630–31

(9th Cir. 2005) (en banc) (discussing a 1982 trial). As shown by the

penalty phase case, his trial counsel investigated Ochoa’s history of drug

abuse, looked at his prior criminal history, inquired with family and

neighbors about his upbringing, and examined his mental health reports.

This investigation did not reveal the degree of the family dysfunction

Ochoa now alleges.

38 OCHOA V. DAVIS

*1; In re Ochoa, 2003 Cal. LEXIS 2047, at *1. The district

court concluded that the claim was also barred as the right

alleged had not previously been recognized by the Supreme

Court. Ochoa, 2016 WL 3577593, at *72–73.

As we determined that the California Supreme Court did

not unreasonably decide that Ochoa’s counsel was not

ineffective under Strickland, this claim fails. Ochoa was not

prejudiced such that his federal constitutional right to counsel

was violated. It follows that his punishment is not a violation

of his Eighth Amendment right based on his trial counsel’s

performance and the mitigation evidence they presented or

failed to present.

Ochoa does not provide support for his legal theory that

ineffective assistance of counsel can support a separate

Eighth Amendment claim. No Supreme Court case has been

identified that invalidated a death sentence on Eighth

Amendment grounds on the basis that counsel was ineffective

for failing to present additional mitigation evidence. The

seven Supreme Court cases cited by Ochoa do not support

such a rule. See Deck v. Missouri, 544 U.S. 622, 632–33

(2005) (routine use of visible shackles during the capital

penalty phase is prohibited); Thompson v. Oklahoma,

487 U.S. 815, 838 (1988) (imposition of the death penalty on

juvenile offenders under sixteen is unconstitutional); Johnson

v. Mississippi, 486 U.S. 578, 584–87 (1988) (death sentence

based in part on an impermissible or irrelevant factor is

unconstitutional); Spaziano v. Florida, 468 U.S. 447, 457–65

(1984) (judge may overrule a jury’s recommendation of life

in prison), overruled by Hurst v. Florida, 577 U.S. 92 (2016);

Lockett v. Ohio, 438 U.S. 586, 604–05 (1978) (a state cannot

preclude a sentencer from considering any aspect of the

defendant’s character or the circumstances of the offense);

OCHOA V. DAVIS 39

Gardner v. Florida, 430 U.S. 349, 358–62 (1977) (Stevens,

J., plurality opinion) (use of information which a capital

defendant has no opportunity to deny or explain is prohibited

in penalty proceedings); Woodson v. North Carolina,

428 U.S. 280, 303–05 (1976) (Stewart, J., plurality opinion)

(individualized consideration of the offender and the

circumstances of each case is required in capital sentencing).

Although those cases do indicate a general principle that the

determination that the death sentence is appropriate must be

reliably made, none of them supports the argument made here

by Ochoa. See Saffle v. Parks, 494 U.S. 484, 491 (1990)

(“Even were we to agree with [petitioner’s] assertion that our

decisions . . . inform, or even control or govern, the analysis

of his claim, it does not follow that they compel the rule that

[petitioner] seeks.”).

In addition, this claim is barred because the right asserted

by Ochoa had not been recognized by the Supreme Court

prior to the time his conviction became final. In Teague v.

Lane, the Supreme Court explained that new rules of criminal

procedure generally do not apply retroactively to cases where

the conviction had already become final on direct review at

the time the new rule was decided. 489 U.S. 288, 316 (1989).4

“A new rule is defined as a rule that . . . was not dictated by

precedent existing at the time the defendant’s conviction

became final.” Whorton v. Bockting, 549 U.S. 406, 416

4

The Teague and AEDPA inquiries are distinct. “The retroactivity

rules that govern federal habeas review on the merits—which include

Teague—are quite separate from the relitigation bar imposed by AEDPA;

neither abrogates or qualifies the other.” Greene v. Fisher, 565 U.S. 34,

39 (2011). However, there is some overlap. It is commonly accepted that

“[a]n ‘old rule’ under Teague generally constitutes clearly established law

for purposes of AEDPA.” Ponce v. Felker, 606 F.3d 596, 604 (9th Cir.

2010).

40 OCHOA V. DAVIS

(2007) (quoting Saffle, 494 U.S. at 488) (internal quotation

marks omitted); see Jones v. Davis, 806 F.3d 538, 550–51

(9th Cir. 2015) (cautioning courts from defining a rule for

purposes of a Teague inquiry at too high a level of generality

and recognizing that if no case has applied appellant’s “rule,”

it “strongly suggest[s] that the rule is novel”). “[A] holding is

not so dictated . . . unless it would have been apparent to all

reasonable jurists.” Chaidez v. United States, 568 U.S. 342,

347 (2013) (internal quotation marks and citation omitted).

Attempts to introduce new rules of criminal procedure on

collateral review are typically “Teague barred,” meaning they

fail. There is one limited exception: “the rule is substantive.”5

Bockting, 549 U.S. at 416; see Edwards v. Vannoy, 141 S. Ct.

1547, 1560 (2021) (eliminating the watershed rule exception).

To be a substantive rule, it must “place an entire category of

primary conduct beyond the reach of the criminal law” or

“prohibit imposition of a certain type of punishment for a

class of defendants because of their status or offense.” See

Sawyer, 497 U.S. at 241. As the rule Ochoa claims was not

established before his direct appeal became final, it is barred

by Teague unless it falls into the exception. As it is not a

substantive rule, this claim is barred by Teague.

5

“The scope of the Teague exception[] must be consistent with the

recognition that ‘[a]pplication of constitutional rules not in existence at the

time a conviction became final seriously undermines the principle of

finality which is essential to the operation of our criminal justice system.’”

Sawyer v. Smith, 497 U.S. 227, 242 (1990) (quoting Teague, 489 U.S.

at 309).

OCHOA V. DAVIS 41

Ochoa fails to demonstrate that the California Supreme

Court’s conclusion was contrary to, or an unreasonable

application of, clearly established Supreme Court precedent

because there was no such precedent. See 28 U.S.C.

§ 2254(d)(1).

D. Eighth Amendment Family Sympathy Evidence Claim

Ochoa contends that his right to be free from cruel and

unusual punishment under the Eighth and Fourteenth

Amendments was violated when, during the penalty phase of

the proceedings, the trial court: (1) refused to instruct the jury

that it could consider sympathy for Ochoa’s family;

(2) permitted the prosecutor to argue that family sympathy

was not an appropriate mitigating factor; and (3) prohibited

him from arguing that family sympathy evidence was an

appropriate mitigating factor. The California Supreme Court

held that the trial court did not err because: (1) no clearly

established federal law required the court to instruct the jury

as to family sympathy; (2) neither the trial court’s instructions

nor the prosecutor’s argument precluded the jury from

considering family sympathy evidence as indirect evidence of

Ochoa’s character or the circumstances of the offenses

charged; and (3) the court did not prohibit Ochoa from

arguing that family sympathy was relevant. Ochoa, 966 P.2d

at 504–06. The district court expressed agreement with the

California Supreme Court’s reasoning. Ochoa,

2016 WL 3577593, at *78. We also agree.

1. Legal Standard

The Eighth Amendment’s prohibition on cruel and

unusual punishment requires that the sentencer be permitted

to consider the “character and record of the individual

42 OCHOA V. DAVIS

offender and the circumstances of the particular offense as a

constitutionally indispensable part of the process of inflicting

the penalty of death.” Woodson, 428 U.S. at 304. “[T]he

sentencer . . . [must] not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s character or

record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.”

Lockett, 438 U.S. at 604; see Eddings v. Oklahoma, 455 U.S.

104, 114 (1982) (recognizing that the sentencer may not be

precluded from considering “any relevant mitigating

evidence”). Any such limitation on relevant mitigating

evidence “creates the risk that the death penalty will be

imposed in spite of factors which may call for a less severe

penalty” and is unconstitutional. Lockett, 438 U.S. at 605.

2. Jury Instruction and Argument Regarding Family

Sympathy

At the penalty phase, Ochoa offered a proposed jury

instruction related to the consideration of sympathy as a

mitigating factor: “You may take sympathy for the defendant

and his family into account in deciding whether to extend

mercy to the defendant.” See Ochoa, 966 P.2d at 504.The

prosecutor objected. In ruling on the objection, the trial court

stated that it was not aware of any authority providing that a

jury should consider family sympathy, but the court also

noted that it was unaware of authority prohibiting the jury

from considering family sympathy. Id. The trial court

concluded that “the law [wa]s that the defendant should be

punished based upon his individual record, his individual

background and his individual involvement.” Id. at 505.

Accordingly, the trial court struck the words “and his family”

from Ochoa’s proposed instruction. See id. at 504. The court

gave a revised instruction: “You may take sympathy for the

OCHOA V. DAVIS 43

defendant into consideration in determining whether or not to

extend mercy to the defendant.” Id.

In its closing argument at the penalty phase, the

prosecutor discussed the meaning of the sympathy

instruction:

First of all, with regard to sympathy for the

defendant, if there be any, if you feel that it is

appropriate, one of the things that I want to

point out to you and you can consider is that

sympathy for the defendant means exactly

that. It does not mean sympathy for his

family.[6] It does not mean sympathy for the

victim or the victim’s family. Now, it’s

obvious that we have seen some of the

defendant’s family members come in here and

testify, and they are very touched. They are

very emotional. They are very hurt, and that is

understandable. But your decision is not based

on whether they feel bad about what happened

any more than your decision can take into

account the loss to the victim’s family,

because that is not what your job is. Your job

is to decide what you’ve heard here and what

the defendant has done and what his

6

At the time of Ochoa’s trial and penalty phase, Booth v. Maryland,

482 U.S. 496 (1987), in which the Supreme Court held that “the

introduction of a [victim impact statement] at the sentencing phase of a

capital murder trial violates the Eighth Amendment,” id. at 509, was still

good law. The prosecutor’s statement with respect to considering

sympathy for the victim, therefore, was proper at the time. The Supreme

Court subsequently overruled Booth in Payne v. Tennessee, 501 U.S. 808,

830 (1991).

44 OCHOA V. DAVIS

background is and whether he deserves that

consideration.

Ochoa did not object to the argument.

3. California Supreme Court Decision

On direct appeal, the California Supreme Court rejected

Ochoa’s arguments that the jury was unconstitutionally

precluded from considering family sympathy evidence as a

mitigating factor in the penalty phase. Ochoa, 966 P.2d

at 504–06. The California Supreme Court noted that there

was no federal or state law requiring that the trial court

instruct jurors that they may consider family sympathy

evidence as a mitigating factor. Id. at 505.7 The court

recognized that, under federal law, a sentencer could not be

precluded “from considering and giving effect to evidence

relevant to the defendant’s background or character or to the

circumstances of the offense that mitigate against imposing

the death penalty.” Id. at 506 (quoting Penry v. Lynaugh,

492 U.S. 302, 318 (1989)). The court acknowledged that

testimony from a defendant’s family members could be

relevant mitigating evidence, if the testimony “illuminate[d]

some positive quality of the defendant’s background or

character.” Id.

The California Supreme Court also considered whether

the jury was precluded from considering any evidence of

Ochoa’s character or the circumstances of his offense,

including relevant indirect evidence offered through the

7

The California Supreme Court held, as a matter of first impression,

that “sympathy for a defendant’s family is not a matter that a capital jury

can consider in mitigation.” Ochoa, 966 P.2d at 506.

OCHOA V. DAVIS 45

testimony of Ochoa’s family. First, the court noted that the

jury heard evidence of the emotional impact of a possible

death sentence on Ochoa’s family. Id. at 505–06. Further, the

court examined the other instructions the trial court gave

regarding what constituted a “mitigating factor,” noting that

those instructions “did not forbid him to argue to the jurors to

take sympathy for his family into account.” Id. at 504.

Specifically, the court observed that the trial court instructed

the jury that it could consider “unlimited” mitigating factors

and explained that the “[m]itigating factors provided in the

instructions [were] merely examples of some of the factors”

the jury could consider in deciding whether a death sentence

was warranted. Id. The California Supreme Court concluded

that there was no federal constitutional violation because

neither the jury instructions nor the prosecutor’s argument

prevented the jury from considering evidence relevant to

Ochoa’s character or the circumstances of the offense

charged. Id. at 506.

4. Analysis

a. Jury Instructions

Ochoa argues that the Eighth Amendment demands that

jurors be permitted to consider sympathy for a defendant’s

family as a mitigating factor at the penalty phase of a capital

proceeding and asserts that the trial court’s instructions and

the prosecutor’s argument precluded the jury from

considering that evidence.

As the California Supreme Court observed, there was no

clearly established federal law that required the trial court to

instruct the jury that it could consider sympathy for Ochoa’s

family as a mitigating factor at the penalty phase. See Ochoa,

46 OCHOA V. DAVIS

966 P.2d at 505. Although Ochoa relies on Lockett, he has

failed to show how Lockett supports his claim. Lockett

dictates that sentencers cannot be prohibited from considering

any aspect of the defendant’s character or the circumstances

of the offense. 438 U.S. at 604. Ochoa has not demonstrated

that the jury was so prohibited.

The record demonstrates that the jury heard evidence

regarding the impact of the trial on Ochoa’s family and was

given several other instructions that made clear that the jury

could consider any evidence in mitigation. Specifically, the

jurors were instructed by the trial court that they were “free

to assign whatever moral or sympathetic value [they deemed]

appropriate to each and all of the various factors” and was

told that mitigating factors were unlimited and not restricted

to the examples provided in the instructions. Ochoa, 966 P.2d

at 504–05. The trial court further instructed the jury to

consider “[a]ny other circumstance . . . and any sympathetic

or other aspect of the defendant’s character or record that the

defendant offers as a basis for a sentence less than death.” Id.

at 505. The jury was also instructed that it could consider

sympathy for the defendant when determining whether to

extend him mercy. Id. The jury was not instructed to exclude

from its consideration sympathy for Ochoa’s family. Viewing

the instructions collectively, there is no reasonable likelihood

that the jury would have believed it could not consider

Ochoa’s family’s testimony or sympathy for Ochoa’s family

as indirect evidence of Ochoa’s character or the

circumstances of the offense. The California Supreme Court’s

determination that the court’s instructions—or lack

thereof—did not preclude the jury from considering any

evidence of Ochoa’s character or the circumstances of the

offense, was not unreasonable.

OCHOA V. DAVIS 47

b. The Arguments Regarding Family Sympathy

Ochoa argues that his Eighth Amendment and Fourteenth

Amendment rights were further violated when the trial court

permitted the prosecutor to argue that the jury could not

consider sympathy for Ochoa’s family while prohibiting him

from arguing the contrary.

There was no clearly established federal law that

prohibited the prosecutor from arguing that the jury

instruction term “sympathy for the defendant” was limited

and did not mean sympathy for others. Nothing prohibited the

prosecutor from attempting to guide the jury on how to

consider the mitigating evidence it believed was relevant and

decisive. Ochoa did not object to the prosecutor’s argument

regarding family sympathy at trial. Ochoa, 2016 WL

3577593, at *101–03.

Furthermore, the prosecutor’s argument did not preclude

the jury from considering family sympathy evidence. The

prosecutor reminded the jurors that their decision was to be

guided by the jury instructions, which in turn allowed for

consideration of unlimited mitigating factors, and the jury is

presumed to have followed the trial court’s instructions. See

Zafiro v. United States, 506 U.S. 534, 540 (1993); see also

Boyde, 494 U.S. at 384 (“[A]rguments of counsel generally

carry less weight with a jury than do instructions from the

court.”). Nothing in the record supports Ochoa’s contention

that the trial court prohibited defense counsel from arguing

that family sympathy evidence was relevant mitigating

evidence.

Ochoa has not demonstrated that the California Supreme

Court’s determination that Ochoa failed to demonstrate a

48 OCHOA V. DAVIS

constitutional violation under the Eighth and Fourteenth

Amendments was contrary to or constituted an unreasonable

application of clearly established law or amounted to an

unreasonable determination of the facts in light of the

circumstances.

E. Simmons Claim

Ochoa contends that his privilege against self-

incrimination under the Fifth and Fourteenth Amendments, as

set forth in Simmons v. United States, 390 U.S. 377 (1968),

was violated when the trial court considered his suppression

hearing testimony about the night Chandler was killed in

deciding his post-conviction motion for a new trial.

Before trial commenced, Ochoa testified at a hearing on

a motion to suppress his taped confession and the physical

evidence obtained as a result. The trial court denied that

motion. Ochoa, 966 P.2d at 464, 469–70. Following his

conviction and the imposition of a death sentence, Ochoa

moved for a new trial arguing that the prosecutor violated his

right to due process under Brady by failing to disclose

statements from jailhouse informants, as discussed above

at 18–21. The trial court denied Ochoa’s motion for a new

trial, relying, in part, on Ochoa’s suppression hearing

testimony.

The California Supreme Court concluded that the trial

court did not err in considering Ochoa’s suppression hearing

testimony in deciding the motion for a new trial and that,

even if it did err, the error was harmless beyond a reasonable

doubt. Ochoa, 966 P.2d at 518–19. The district court

concluded that the California Supreme Court’s denial of

Ochoa’s claim on the merits did not amount to an

OCHOA V. DAVIS 49

unreasonable application of clearly established federal law

because there was no clearly established federal law holding

that suppression hearing testimony cannot be considered by

a trial court in deciding a motion for a new trial. Ochoa, 2016

WL 3577593, at *30. The district court also concluded that

Ochoa’s claim was barred under Teague because Ochoa

sought to establish a new rule of constitutional jurisprudence.

Id. (citing Teague, 489 U.S. at 299–301). We agree with the

district court.

1. Legal Standard

In Simmons, the Supreme Court held that “when a

defendant testifies in support of a motion to suppress

evidence on Fourth Amendment grounds, his testimony may

not thereafter be admitted against him at trial on the issue of

guilt unless he makes no objection,” regardless of whether the

suppression motion is ultimately successful. See 390 U.S. at

394. In reaching this conclusion, the Court rejected the

premise that the use of suppression hearing testimony cannot

be a violation of the Fifth Amendment’s prohibition on

compelled testimony because it is “voluntary.” Id. at 393–94.

Although the Court recognized that “testimony is not always

involuntary as a matter of law simply because it is given to

obtain a benefit,” it explained that the voluntariness of

testimony is called into question when “the ‘benefit’ to be

gained is that afforded by another provision of the Bill of

Rights.” Id. at 394. The Court concluded that it is

constitutionally intolerable to force a defendant to surrender

his Fifth Amendment privilege against self-incrimination to

vindicate his Fourth Amendment right to exclude unlawfully

obtained evidence. Id.

50 OCHOA V. DAVIS

2. Suppression Hearing and Denial of Motion for a New

Trial

During a voluntary polygraph examination, Ochoa

confessed to killing Chandler. Ochoa later offered to take

officers to recover the knife used in Chandler’s murder and

gave officers a taped confession. Before Ochoa’s trial

commenced, Ochoa moved to suppress his taped confession

and exclude evidence relating to the knife that police found

as a result of the confession. Ochoa, 966 P.2d at 464.

The trial court held a suppression hearing to consider

Ochoa’s motion. Id. At the hearing, Ochoa argued that his

confession was involuntary, that he was not apprised of his

Miranda8 rights to counsel and to remain silent prior to the

voluntary polygraph examination, that he did not understand

his right to counsel after the Miranda admonition, and that his

confession was offered in exchange for “false promises of

lenity.” Id. at 464–65. On cross-examination, Ochoa testified

that he did not know if he killed Chandler. Id. at 468. On

redirect, Ochoa explained that when he testified that he did

not know if he killed Chandler, he meant that he did not kill

her. Id.

Ochoa then gave testimony regarding his version of

events the night Chandler was killed. Id. at 468–69. Ochoa

stated that he saw Chandler walk toward the school with a

man and followed them because he needed to get something

back from the man. Id. at 468. Ochoa testified that he was

intoxicated on beer and cocaine. Id. Ochoa stated that, at the

school, he saw the man “swinging in an upward motion.” Id.

He said that when he approached the man, the man handed

8

Miranda v. Arizona, 384 U.S. 436 (1966).

OCHOA V. DAVIS 51

him a knife and asked for help. Id. Ochoa testified that he

helped drag and hide Chandler’s body. Id. Ochoa asserted

that when he confessed to stabbing Chandler, he had no

memory of actually doing so. Id. at 469. On recross-

examination Ochoa said that he took the knife from the man

because he did not know at that time that anyone had been

killed. Id. at 469.

The trial court denied Ochoa’s suppression motion on all

grounds. Id. at 469–70. The trial proceeded and the

prosecutor introduced Ochoa’s taped confession in its case-

in-chief. Id. at 461.

After the jury returned its verdict and imposed a death

sentence, Ochoa filed a motion for a new trial, arguing that he

was denied due process of law under Brady when the

prosecutor failed to disclose the statements of jailhouse

informants implicating Ramage in Chandler’s murder. The

trial court denied Ochoa’s Brady motion for a new trial,

concluding that the state’s failure to disclose the informants’

statements did not constitute a denial of due process or result

in an unfair trial. Id. at 516–17. The trial court found that the

informants’ statements regarding Ramage’s confession were

not credible because all of the record evidence indicated that

Ochoa acted alone. Id. The court compared the jailhouse

informants’ statements to the story Ochoa told at his

suppression hearing that another man killed Chandler. The

trial court concluded that, like the informants’ testimony,

Ochoa’s suppression hearing story was “inherently not

credible” because it was entirely inconsistent with the

physical evidence and his taped confession, which, by

contrast, was consistent with the physical evidence. In sum,

the trial court determined that the prosecutor’s failure to

disclose the jailhouse informants’ statements did not

52 OCHOA V. DAVIS

prejudice Ochoa because the allegations that someone else

was involved in Chandler’s murder were simply not credible

given the overwhelming evidence that Ochoa was guilty and

acted alone.

3. California Supreme Court Decision

The California Supreme Court concluded that the trial

court did not err in considering Ochoa’s suppression hearing

testimony. Ochoa, 966 P.2d at 518–19. As he later did in his

habeas petition, on his direct appeal to the California

Supreme Court Ochoa argued that the trial court’s

consideration of his suppression hearing testimony was

problematic because it was elicited on cross-examination over

his objection. Id. The California Supreme Court determined

that, contrary to Ochoa’s contentions, the testimony in

question was offered by Ochoa on redirect. Id. at 518.

Accordingly, the court reasoned that the prosecutor did not

violate Ochoa’s right against self-incrimination and that the

trial court did nothing more than what Ochoa asked, to

consider “all the papers and records on file” in deciding

Ochoa’s motion for a new trial. Id. In the alternative, the

court concluded that any error was harmless beyond a

reasonable doubt because the trial court would have denied

Ochoa’s motion for a new trial even if it had not considered

Ochoa’s suppression hearing testimony. Id. at 518–19.

4. Analysis

At the outset, Ochoa asserts that because the California

Supreme Court did not cite Simmons, it failed to address his

constitutional claim on the merits and thus, de novo review,

rather than AEDPA deference, is appropriate. This argument

lacks merit. The Supreme Court has repeatedly explained that

OCHOA V. DAVIS 53

state courts are not required to cite—or even be aware

of—Supreme Court precedent so long as the state court

decision is not contrary to that precedent. See Early, 537 U.S.

at 8; Bell v. Cone, 543 U.S. 447, 455 (2005) (“Federal courts

are not free to presume that a state court did not comply with

constitutional dictates on the basis of nothing more than a

lack of citation.”). We presume that the state court

adjudicated Ochoa’s claim on the merits. See Richter,

562 U.S. at 99. Ochoa has not rebutted, and cannot rebut, this

presumption. The California Supreme Court directly

considered and adjudicated the merits of Ochoa’s

constitutional claim regarding his suppression hearing

testimony, as demonstrated by its conclusion that there was

no violation of the right against self-incrimination and that

even if there was an error, it was harmless beyond a

reasonable doubt. See Ochoa, 966 P.2d at 518–19. Thus, we

proceed to review the California Supreme Court’s merits

decision, applying AEDPA deference.

We agree with the district court’s determination that the

California Supreme Court’s decision on the merits regarding

Ochoa’s suppression hearing testimony was not contrary to or

an unreasonable application of Simmons or any other clearly

established federal law. Ochoa, 2016 WL 3577593, at *31.

Simmons does not control here. Simmons bars the admission

of a defendant’s suppression hearing testimony as evidence

against the defendant at trial on the issue of guilt. 390 U.S. at

394. Simmons does not dictate that suppression hearing

statements cannot be considered in proceedings outside the

guilt phase or for purposes other than establishing substantive

guilt at trial. The Supreme Court has explicitly left open “the

proper breadth of the Simmons privilege,” acknowledging that

it has “not decided whether Simmons precludes the use of a

defendant’s testimony at a suppression hearing to impeach his

54 OCHOA V. DAVIS

testimony at trial.” United States v. Salvucci, 448 U.S. 83,

93–94 & n.8 (1980).

As there is no clearly established federal law that

prohibited the trial court from considering Ochoa’s testimony

in deciding his post-conviction motion for a new trial, the

California Supreme Court’s decision cannot be deemed an

objectively unreasonable application of clearly established

federal law. See Ponce, 606 F.3d at 604 (citing Wright v. Van

Patten, 522 U.S. 120, 126 (2008) (per curiam)); 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.”).

Even if Ochoa had demonstrated a constitutional

violation, he has failed to show that the California Supreme

Court’s harmlessness determination was unreasonable. See

Davis v. Ayala, 576 U.S. 257, 269–70 (2015) (“When a

Chapman9 [harmlessness] decision is reviewed under

AEDPA, a federal court may not award habeas relief under

§ 2254 unless the harmlessness determination itself was

unreasonable.” (internal quotation marks and citation

omitted)). The California Supreme Court reasonably

concluded that the trial court had other valid reasons for

denying Ochoa’s motion for a new trial. See supra

pp. 17–26.10

9

Chapman v. California, 386 U.S. 18 (1967).

10

Moreover, the trial court’s consideration of Ochoa’s suppression

hearing statements was arguably generous to him. Effectively, what the

trial court did was to consider whether the improperly withheld statements

OCHOA V. DAVIS 55

Finally, we also agree with the district court that Ochoa’s

Simmons claim is Teague barred. See Ochoa, 2016 WL

3577593, at *30. In arguing that Simmons precluded the trial

court’s consideration of his suppression hearing testimony in

deciding his post-conviction motion, Ochoa seeks to expand

Simmons and establish a new rule of constitutional

jurisprudence on collateral review. Teague precludes the

application of Ochoa’s proposed rule retroactively in his

federal habeas proceedings. See 489 U.S. at 299–301.

F. Uncertified Claim: Penalty Phase Burden of Proof

Due Process Claim

Ochoa seeks to expand the certificate of appealability by

raising an uncertified issue in his Opening Brief. See 9th Cir.

R. 22-1(e). Specifically, Ochoa argues that his right to due

process, as set forth in In re Winship, 397 U.S. 358 (1970),

and Apprendi v. New Jersey, 530 U.S. 466 (2000), and its

progeny, was violated because the penalty phase jury

instructions failed to direct the jury that it was required to

find, beyond a reasonable doubt, that aggravating

circumstances existed and outweighed the mitigating

circumstances. The state was not required to address Ochoa’s

uncertified claim in its answering brief and did not do so.

could have been deemed material for Brady purposes based on the

alternative factual scenario presented in Ochoa’s suppression hearing

statements. It is difficult to see how Ochoa was prejudiced by the trial

court’s decision to expansively consider, and reject, this alternative theory

of Brady prejudice. Ochoa’s argument that Simmons precluded such

consideration amounts to a contention that the trial court should have

omitted that portion of its Brady analysis, which would still leave it

wholly adverse to Ochoa.

56 OCHOA V. DAVIS

Under AEDPA, certificates of appealability are governed

by 28 U.S.C. § 2253(c). To obtain a certificate of

appealability, a petitioner “must make a substantial showing

of the denial of a constitutional right,” which includes

“showing that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved

in a different manner or that the issues presented were

‘adequate to deserve encouragement to proceed further.’”

Slack, 529 U.S. at 484 (quoting Barefoot v. Estelle, 463 U.S.

880, 893 & n.4 (1983), superseded by statute on other

grounds). The district court considered and declined to issue

a certificate of appealability as to any of Ochoa’s claims.

Ochoa, 2016 WL 3577593, at *144. Ochoa subsequently

moved this court for a certificate of appealability on seven

claims. Although we granted Ochoa’s motion as to five of

those claims, we specifically declined to certify this claim,

concluding that the accuracy of the district court’s resolution

of this claim was not reasonably debatable. Having reviewed

the Opening Brief’s argument as to this uncertified claim, we

reach the same conclusion. See McKinney v. Arizona,

140 S. Ct 702, 707–08 (2020). Accordingly, we decline to

expand the certificate of appealability.

IV. Conclusion

We affirm the district court’s denial of the Petition. We

also decline to expand the certificate of appealability as to

Ochoa’s uncertified claim.

AFFIRMED.