Petition for Writ of Certiorari — Sergio Ochoa, Petitioner v. Oak Smith, Acting Warden
Supreme Court briefAug 1, 2023
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No. ____________
IN THE
SERGIO OCHOA
Petitioner,
v.
OAK SMITH, ACTING WARDEN
Respondent
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
APPENDIX TO PETITION FOR A WRIT OF CERTIORARI
CUAUHTEMOC ORTEGA
Federal Public Defender
AJAY V. KUSNOOR*
C. PAMELA GÓMEZ*
Deputy Federal Public Defender
321 East 2nd Street
Los Angeles, California 90012
Telephone: (213) 894-2854
Facsimile: (213) 894-0081
Ajay_Kusnoor@fd.org
Attorneys for Petitioner
*Counsel of Record
INDEX
Opinion
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
10/05/2022 ...........................................................................................Appendix A
001-070
Redacted Order Denying First Amended Petition for Writ of Habeas Corpus
Sergio Ochoa v. Ronald Davis, Case No. CV 02-7774-RSWL
United States District Court, Central District of California
08/13/2018 ...........................................................................................Appendix B
071-198
Judgment
Sergio Ochoa v. Ronald Davis, Case No. CV 02-7774-RSWL
United States District Court, Central District of California
08/13/2018 ..........................................................................................Appendix C
199-200
Order Denying in Part and Granting in Part Motion for Reconsideration
Sergio Ochoa v. Ronald Davis, Case No. CV 02-7774-RSWL
United States District Court, Central District of California
09/29/2014 ...........................................................................................Appendix D
201-209
Order Denying in Part and Granting in Part Motion to Dismiss
Sergio Ochoa v. Ronald Davis, Case No. CV 02-7774-RSWL
United States District Court, Central District of California
07/08/2014 ...........................................................................................Appendix E
210- 240
Order Denying Petition for Writ of Habeas Corpus
In re Sergio Ochoa on Habeas Corpus, Case No. S121184
Supreme Court of California
12/21/2010 ...........................................................................................Appendix F
241- 242
Order Granting Petitioner’s Motion to Stay and Denying
Without Prejudice Respondent’s Motion to Dismiss
Sergio Ochoa v. Jeanne Woodford, Case No. CV 02-7774-RSWL
United States District Court, Central District of California
02/27/2004………………………………………………………………….Appendix G
243-245
ii
Order Denying Petition for Writ of Habeas Corpus
In re Sergio Ochoa on Habeas Corpus, Case No. S095304
Supreme Court of California
08/21/2002………………………………………………………………….Appendix H
246
Order Denying Petition for Writ of Certiorari
Sergio Ochoa v. California, Case No. 01-8782
Supreme Court of the United States
04/29/2002 ........................................................................................... Appendix I
247
Opinion
People v. Sergio Ochoa, Case No. S030416
Supreme Court of California
08/06/2001 ........................................................................................... Appendix J
248-319
Judgment
People of the State of California v. Sergio Ochoa, Case No. BA020873
Superior Court of California, County of Los Angeles
12/11/1992 ...........................................................................................Appendix K
320-321
Order Denying Petition for Rehearing and Rehearing En Banc
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
03/07/2023 ...........................................................................................Appendix L
322
Order Denying Petition for Rehearing
People v. Sergio Ochoa, Case No. S030416
Supreme Court of California
09/19/2001 ...........................................................................................Appendix M
323
Excerpts of Record, pp. 801-819 (Excerpts of Rosie Gallegos’ Testimony)
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
08/19/2019 ...........................................................................................Appendix N
324- 346
iii
Excerpts of Record, pp. 824-840 (Excerpts of Lisa Martinez’ Testimony)
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
08/19/2019 ...........................................................................................Appendix O
347- 367
Excerpts of Record, pp. 845-855 (Excerpts of Dr. Maloney’s Testimony)
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
08/19/2019 ...........................................................................................Appendix P
368- 382
Excerpts of Record, pp. 856-864 (Excerpts of Eduardo Ochoa’s Testimony)
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
08/19/2019 ..........................................................................................Appendix Q
383- 395
Excerpts from Reporter’s Transcript
Volume 24, pp. 2764-2768; and 2822-2828
People of the State of California v. Sergio Ochoa, Case No. BA020873
Superior Court of California, County of Los Angeles
09/11/1992 ...........................................................................................Appendix R
396- 412
Excerpts of Record, pp. 374-476 (Declaration of Francisco Gomez, Ph.D.)
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
08/19/2019 ..........................................................................................Appendix S
413- 515
Excerpts of Record, pp. 359-373 (Declaration of Father Gregory Boyle, S.J.)
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
08/19/2019 ..........................................................................................Appendix T
516-530
Excerpts of Record, pp. 477-498 (Declaration of Patricia Pérez-Arce, Ph.D.)
Sergio Ochoa v. Ronald Davis, Case No. 18-99007
United States Court of Appeals for the Ninth Circuit
08/19/2019 ..........................................................................................Appendix U
531-552
iv
APPENDIX A
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO OCHOA,
Petitioner-Appellant,
v.
RONALD DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellee.
No. 18-99007
D.C. No.
2:02-cv-07774RSWL
OPINION
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted March 22, 2022
Pasadena, California
Filed October 5, 2022
Before: Johnnie B. Rawlinson, Kenneth K. Lee, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke
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OCHOA V. DAVIS
SUMMARY *
Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of Sergio
Ochoa’s habeas corpus petition under 28 U.S.C. § 2254
challenging his conviction and death sentence imposed in
California state court.
The district court issued a certificate of appealability for
two of Ochoa’s claims.
In the first claim certified by the district court, Ochoa
contended that his constitutional rights were violated under
Wainwright v. Witt, 469 U.S. 412 (1985), and Witherspoon
v. Illinois, 391 U.S. 510 (1968), because seven prospective
jurors were improperly removed for cause based on their
moral qualms about the death penalty that did not
substantially impair their abilities to perform their duties in
a capital case. The California Supreme Court, whose
opinion on direct review is the last reasoned decision on this
issue, concluded that both the prosecutor’s questioning of
the challenged jurors and the excusals were proper.
Applying the deferential review under the Antiterrorism and
Effective Death Penalty Act (AEDPA) to the last reasoned
state court decision, the panel held that the California
Supreme Court’s conclusion was neither an unreasonable
factual determination nor contrary to or an unreasonable
application of clearly established Supreme Court precedent.
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
*
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OCHOA V. DAVIS
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In the second claim certified by the district court, Ochoa
contended that his trial counsel were ineffective because the
excusals were based upon counsel’s failure to investigate,
adequately object, and/or rehabilitate the prospective jurors.
On this issue, the California Supreme Court’s denial of
Ochoa’s second state petition is the last reasoned decision.
The California Supreme Court summarily denied the
ineffective assistance of counsel claim “on the merits.” The
panel took this opportunity to make explicit what has to this
point been implicit: the California Supreme Court’s
summary denial is a decision on the merits and thus entitled
to AEDPA deference. The panel held that Ochoa failed to
overcome the presumption that defense counsel’s conduct
fell within the wide range of professional assistance, and
failed to show how trial counsel’s failure to object or try to
rehabilitate some of the jurors prejudiced him. Applying
AEDPA deference, the panel concluded that it was neither
an unreasonable factual determination nor contrary to or an
unreasonable application of clearly established Supreme
Court precedent for the California Supreme Court to have
determined that Ochoa’s counsel were not ineffective during
voir dire. The panel held that the district court did not abuse
its discretion in denying Ochoa’s request for an evidentiary
hearing.
Because jurists of reason could disagree with the district
court’s denial of two uncertified claims, the panel expanded
the certificate of appealability to cover those claims.
In the first uncertified claim, Ochoa contended that his
defense counsel were ineffective during the penalty phase
for failing to present mitigating evidence, such as evidence
of his brain damage and traumatic childhood. He also faults
his counsel for failing to investigate and attack the
prosecution’s aggravation evidence, including failing to
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OCHOA V. DAVIS
present a gang expert. Ochoa raised this claim in both of his
state habeas petitions. The California Supreme Court
summarily denied the claim “on the merits.” The panel held
that Ochoa failed to rebut the presumption of counsel’s
competence, and failed to establish prejudice with respect to
counsel’s alleged deficiencies.
Applying AEDPA
deference, the panel concluded that the California Supreme
Court’s conclusion was neither an unreasonable factual
determination nor contrary to or an unreasonable application
of clearly established Supreme Court precedent.
In the second uncertified claim, Ochoa asserted that his
death sentence violates the Eighth Amendment because he
“suffered mental impairments that are as severe as mental
retardation from the date of his arrest to the present[,]” and
he is therefore ineligible for execution under Atkins v.
Virginia, 536 U.S. 304 (2002). Ochoa raised this claim in
his second state habeas petition. The California Supreme
Court summarily denied the claim “on the merits.”
Evaluating the criteria set forth in Atkins, and applying
AEDPA deference, the panel held that it was neither an
unreasonable factual determination nor contrary to or an
unreasonable application of clearly established Supreme
Court precedent for the California Supreme Court to have
determined that Ochoa failed to demonstrate the onset of
intellectual functioning and adaptive deficits as a minor.
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OCHOA V. DAVIS
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COUNSEL
C. Pamela Gomez (argued) and Ajay V. Kusnoor, Deputy
Federal Public Defenders; Cuauhtémoc Ortega, Federal
Public Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.
Nicholas Webster (argued), A. Scott Hayward and Analee J.
Brodie, Deputy Attorneys General; James William
Bilderback II, Senior Assistant Attorney General; Lance E.
Winters, Chief Assistant Attorney General; Rob Bonta,
Attorney General; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee.
OPINION
VANDYKE, Circuit Judge:
I. INTRODUCTION
Petitioner Sergio Ochoa appeals from the district court’s
denial of his habeas corpus petition under 28 U.S.C. § 2254,
challenging his conviction and death sentence imposed in
California state court. In 1992, Ochoa was convicted of two
counts of first-degree murder and one count of attempted
robbery. People v. Ochoa, 26 Cal. 4th 398, 415–16 (2001).
The jury found true the allegations that a principal was
armed with respect to all three offenses and that Ochoa
personally used a firearm with respect to one of the murders
and the attempted robbery. Id. The jury also found true the
special circumstance allegations that Ochoa committed
multiple murders and that a murder was committed while he
was engaged in robbery. Id. The jury set the penalty at
death. Id.
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OCHOA V. DAVIS
Ochoa’s conviction and death sentence were appealed to
the California Supreme Court, which affirmed the judgment
in its entirety. Id. at 464. Ochoa twice sought habeas relief
from the California Supreme Court, but those petitions were
denied. Ochoa also commenced federal habeas proceedings
in the United States District Court for the Central District of
California, but this petition was also denied. The district
court issued a certificate of appealability for two of Ochoa’s
claims (together, “the certified claims”): (1) that seven jurors
were improperly removed for cause under Wainwright v.
Witt, 469 U.S. 412 (1985), and Witherspoon v. Illinois,
391 U.S. 510 (1968); and (2) that his trial counsel were
ineffective for failing to object to the prosecutor’s use of
misleading hypothetical scenarios during voir dire and for
failing to rehabilitate prospective jurors challenged for
cause. On appeal, Ochoa requests that we expand the
certificate of appealability to include two additional claims
(together, “the uncertified claims”): (1) that trial counsel
were also ineffective for failing to investigate and present
mitigating evidence during the penalty phase; and (2) that
his execution would violate the Eighth Amendment because
he suffers from cognitive impairments and mental illness
that are equivalent to intellectual disability.
We grant Ochoa’s request to expand the certificate of
appealability with respect to the uncertified claims, given
that the accuracy of the district court’s resolution of these
claims is reasonably debatable. But we affirm the district
court’s denial of Ochoa’s habeas corpus petition because he
fails to establish that the California Supreme Court’s
conclusion as to any of his claims was contrary to or
constituted an unreasonable application of clearly
established federal law or an unreasonable factual
determination. See 28 U.S.C. § 2254(d)(1), (2).
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OCHOA V. DAVIS
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II. BACKGROUND
Appellant Sergio Ochoa was born in 1968 in Tijuana,
Mexico. Three years later, he and his family moved to San
Diego, and soon thereafter they moved to Los Angeles. In
time, two of Ochoa’s older siblings joined a Los Angeles
street gang called the 18th Street Gang. Ochoa followed suit,
joining the gang’s Pee Wee Winos clique when he was
eleven years old.
A decade later, Ochoa was still a member of the 18th
Street Gang, which was engaged in a gang “war” with the
Crazy Riders. On December 15, 1989, while Ochoa was
walking with a fellow 18th Street Gang member, a white
Toyota pulled up alongside them, and a Crazy Rider
nicknamed “Pompis” stepped out of the car and shot at them
five times. The next day, the Crazy Riders shot an 18th
Street Gang member. Later that same day, an 18th Street
Gang member killed a Crazy Rider in retaliation. On the
evening of January 3, 1990, Pompis, in the same white
Toyota, pulled up alongside a car carrying three 18th Street
Gang members and shot one of them in the head.
Approximately three hours later, Ochoa drove up to a
corner at which four fellow 18th Street Gang members were
assembled and told them that he had just spotted the white
Toyota. The four men, one of whom was armed with a
double-barreled shotgun, got in Ochoa’s truck. While
driving, Ochoa again spotted what he believed to be the
Crazy Riders’ car, and he pulled up alongside it. Someone
in Ochoa’s truck fired two shotgun blasts into the car, and
Ochoa drove off. The car Ochoa believed was the Crazy
Riders’ car turned out to be a white Datsun with a license
plate number similar to that of the Crazy Riders’ white
Toyota; the Datsun’s driver, a nineteen-year-old named
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OCHOA V. DAVIS
Pedro Navarette who was not involved with either gang, died
of a shotgun wound to the head.
Weeks later, on the evening of January 20, 1990, Ochoa
convinced four fellow gang members to join him for a
carjacking. After agreeing that a particular parked car was a
good target, Ochoa and an accomplice approached the car’s
driver side, while two other accomplices approached the
passenger side. Ochoa, the only armed member of the group,
placed a gun in driver Jose Castro’s face and ordered him to
exit the vehicle. When Castro refused, Ochoa stated, “I’m
gonna shoot him.” A passing motorist saw the tallest man in
the group, who was standing on the driver side, shoot Castro;
Ochoa was by far the tallest of the four assailants. When he
returned to the car in which he and his accomplices had
arrived, Ochoa told the getaway driver that he had shot
Castro in the leg. Castro died from the gunshot wound; the
bullet entered his left shoulder and exited the right side of
his chest, which was consistent with the scene described by
the eyewitness.
Later that night, Ochoa and three male accomplices
approached a man at a gas station. They kicked the man to
the ground, and when the man stood up, Ochoa punched him
and warned, “Give up the car, otherwise I’m going to shoot
you.” An accomplice pressed a gun against the man’s torso,
Ochoa entered the man’s car and sat down in the driver’s
seat, and the four drove off.
Ochoa was arrested the next day. During questioning,
Ochoa denied having any knowledge of the Navarette
killing. After that interview, Ochoa, who already had many
18th Street Gang tattoos, got a tattoo over his eye of the
number “187,” the California Penal Code section that
proscribes murder. In February 1990, Ochoa admitted that
on the night of the Navarette murder he drove the shooter
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OCHOA V. DAVIS
9
and others, but he claimed that he did not know the shooter
was armed until he heard the gunshot. In March 1990, the
eyewitness to the Castro murder was shown a photographic
lineup that included an image of Ochoa, but the witness was
unable to identify Ochoa as the shooter. In September of that
year, however, the eyewitness selected Ochoa from a live
lineup, identifying him as the shooter.
On August 31, 1992, Ochoa was convicted of two counts
of first-degree murder and one count of attempted seconddegree robbery in Los Angeles County Superior Court. At
the penalty phase, the jury fixed the penalty to be imposed
as death, and on December 10, 1992, the court sentenced
Ochoa to the same. On August 6, 2001, the California
Supreme Court affirmed Ochoa’s convictions and sentence
on direct appeal. Ochoa, 26 Cal. 4th at 464. On April 29,
2002, the U.S. Supreme Court denied Ochoa’s petition for a
writ of certiorari.
Ochoa filed his first state habeas petition on February 20,
2001. The California Supreme Court summarily denied the
petition “on the merits” on August 21, 2002. Ochoa filed a
federal habeas petition in the district court on September 19,
2003. Ochoa returned to the state court with a second state
habeas petition on December 15, 2003, and the district court
stayed the federal proceedings. The California Supreme
Court summarily denied Ochoa’s second state petition “on
the merits” and on procedural grounds on December 21,
2010.
After his second state habeas petition was denied, Ochoa
filed the operative amended petition with the district court.
On July 8, 2014, the district court granted in part and denied
in part the State’s motion to dismiss. Ochoa filed a motion
for reconsideration, which the district court likewise granted
in part and denied in part. On August 13, 2018, the district
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OCHOA V. DAVIS
court denied all of Ochoa’s remaining claims for relief on
the merits. The district court issued a certificate of
appealability as to the certified claims.
On September 10, 2018, Ochoa filed a notice of appeal,
reserving the right to request that we expand the certificate
of appealability. Ochoa challenges the district court’s
determinations regarding the certified claims and requests
that we expand the certificate of appealability to include the
uncertified claims.
III. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253. We review the district court’s denial of a habeas
petition de novo and its findings of fact for clear error. See
Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010).
Because Ochoa’s federal petition was filed after April 24,
1996, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs our review. See Murray v. Schriro,
745 F.3d 984, 996 (9th Cir. 2014). Under AEDPA, habeas
relief may not be granted 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;” or
(2) “based on an unreasonable determination of the facts in
light of the evidence presented in the [s]tate court
proceeding.” 28 U.S.C. § 2254(d)(1), (2). We apply the
deferential review under AEDPA to the last reasoned state
court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803–
04 (1991); Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th
Cir. 2012).
Under § 2254(d)(1), “clearly established” “refers to the
holdings, as opposed to the dicta, of [the Supreme Court’s]
decisions as of the time of the relevant state-court decision.”
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OCHOA V. DAVIS
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Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). A state
court’s decision is contrary to clearly established federal law
“if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000) (O’Connor, J.,
concurring). A state court’s decision is an unreasonable
application of clearly established federal law “if the state
court identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the [petitioner’s] case.” Id. “The
more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (cleaned up).
IV. DISCUSSION
Ochoa presents four claims on appeal, two certified and
two uncertified. We begin by addressing the certified claims
and then turn to the uncertified claims.
A. The Certified Claims
1. First Certified Claim: Witt/Witherspoon Claim
Ochoa contends that his constitutional rights were
violated because seven prospective jurors were improperly
removed for cause based on their moral qualms about the
death penalty that did not substantially impair their abilities
to perform their duties in a capital case under Witt and
Witherspoon.
On this issue, the California Supreme Court’s opinion on
direct review in Ochoa, 26 Cal. 4th 398, is the last reasoned
decision. In that opinion, the California Supreme Court
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OCHOA V. DAVIS
concluded that both the prosecutor’s questioning of the
challenged jurors and the excusals were “proper.” Id. at 428.
Specifically:
Prospective Juror Linda H.’s comments
revealed her unambiguous opposition to the
death penalty, and the trial court properly
excused her. Substantial evidence likewise
supports the exclusion of the other jurors. To
the extent their responses could support
multiple inferences, we defer to the trial
court’s determination of their unfitness to
serve.
Id. at 432.
The district court considered the California Supreme
Court’s rejection of this claim and found that it was
reasonable under AEDPA because the record supported the
conclusion that the challenged jurors were substantially
impaired.
The district court thus denied Ochoa’s
Witt/Witherspoon claim.
Because the California Supreme Court’s conclusion was
neither an unreasonable factual determination nor contrary
to or an unreasonable application of clearly established
Supreme Court precedent, we affirm the district court. See
28 U.S.C. § 2254(d)(1), (2).
a. Applicable Law
In Witherspoon, the Supreme Court allowed the
exclusion of jurors who “would automatically vote against
the imposition of capital punishment without regard to any
evidence that might be developed at the trial . . . .” 391 U.S.
at 522 n.21. In Witt, the Supreme Court replaced
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OCHOA V. DAVIS
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Witherspoon’s “automatic vote” test with a different
formulation: a juror in a capital case is properly excluded for
cause where the juror’s views on capital punishment would
“prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.” 469 U.S. at 424 (cleaned up). A juror’s opposition to
the death penalty is insufficient grounds for exclusion if the
juror can set aside this view in making a decision with regard
to penalty. See Lockhart v. McCree, 476 U.S. 162, 176
(1986). “[I]t is the adversary seeking exclusion who must
demonstrate, through questioning, that the potential juror
lacks impartiality.” Witt, 469 U.S. at 423. At the same time,
a juror’s bias does not have to be proved with “unmistakable
clarity.” Id. at 424. When there is ambiguity in the
prospective juror’s statements, the trial court is “entitled to
resolve it in favor of the State.” Id. at 434.
In determining whether juror exclusion for bias is
unreasonable, a trial court’s findings of juror partiality are
entitled to special deference. See Uttecht v. Brown, 551 U.S.
1, 9 (2007) (“Deference to the trial court is appropriate
because it is in a position to assess the demeanor of the
venire, . . . a factor of critical importance in assessing the
attitude and qualifications of potential jurors.”); see also
Morgan v. Illinois, 504 U.S. 719, 730 (1992) (“The adequacy
of voir dire is not easily the subject of appellate review
. . . .”). Such deference is necessary for practical reasons:
[M]any veniremen simply cannot be asked
enough questions to reach the point where
their bias has been made “unmistakably
clear”; these veniremen may not know how
they will react when faced with imposing the
death sentence, or may be unable to
articulate, or may wish to hide their true
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OCHOA V. DAVIS
feelings. Despite this lack of clarity in the
printed record, however, there will be
situations where the trial judge is left with the
definite impression that a prospective juror
would be unable to faithfully and impartially
apply the law.
Witt, 469 U.S. at 424–26. Consequently, the Supreme Court
has admonished the lower courts to “respect the limited role
of federal habeas relief in this area.” Uttecht, 551 U.S. at 10.
In addition, § 2254(d) builds on the deference owed to the
trial court by requiring us to review the California Supreme
Court’s determination through a “deferential lens.” Cullen
v. Pinholster, 563 U.S. 170, 190 (2011) (cleaned up).
b. Analysis
The prospective jurors were questioned in nine groups of
eleven to seventeen people. Each prospective juror
submitted a juror questionnaire, and during voir dire was
questioned first by the trial court, then by defense counsel,
and finally by the prosecutor. After the first two groups had
been questioned, the trial court granted the defense some
“rebuttal” voir dire. Each side had thirty minutes for
questioning, except for the last group, which was the
smallest, so each side had twenty minutes. During each
group’s voir dire, the prosecutor explained the felonymurder and accomplice-liability doctrines that were
applicable to the charges in the case. The prosecutor used
hypotheticals to illustrate how the doctrines operate.
Ochoa contends that the trial court improperly removed
the following seven prospective jurors from four different
groups: Gertrude W., Patrice V., Alicia B., Linda H., Martha
C., Arthur R., and Lynn J. Ochoa claims that the jurors gave
disqualifying answers only after the prosecutor posed
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hypotheticals that were “highly misleading” because they
(1) “improperly described” the state-law framework to the
jury by introducing “the theory of accidental, aiding and
abetting felony murder” without clarifying that a defendant
guilty of such a crime would be categorically ineligible for
death; and (2) described a scenario that was a lot less
blameworthy than Ochoa’s crime as they described “an
unintentional or accidental murder.” Ochoa argues no
deference should be applied to the trial court’s decision to
remove the jurors because the state law principles were
improperly described to them. Ochoa also claims that the
California Supreme Court unreasonably applied clearly
established Supreme Court precedent, when it placed the
burden of showing that the jurors were substantially
impaired not on the prosecutor—the party seeking
exclusion—but on the defense.
We address Ochoa’s contentions as to each challenged
juror based on the order in which their respective groups
were questioned during voir dire, beginning with Getrude W.
who was in the first group of prospective jurors, then Patrice
V. and Alicia B. who were in the second, then Linda H. who
was in the sixth group, and finally, Martha C., Arthur R., and
Lynn J. who were in the eighth group. 1
The State argues that Ochoa’s Witt/Witherspoon claim must be
limited to the first three of the seven challenged jurors—Gertrude W.,
Patrice V., and Alicia B.—because the prosecutor modified her
hypotheticals in later groups and Ochoa fails to explain how those
hypotheticals were misleading. With respect to Ochoa’s challenge to the
first three jurors, the State argues that the claim is procedurally defaulted
because the state court denied it relying on an adequate and independent
state ground: counsel’s failure to make a contemporaneous objection to
the prosecutor’s hypotheticals. Because we affirm the district court on
the merits with respect to each of the seven prospective jurors, we need
1
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i. Gertrude W.
Gertrude’s panel was first apprised of the facts of the
case during the voir dire by Ochoa’s counsel. The
prosecutor, who went next, also touched on the facts of the
case. The prosecutor then discussed the aiding and abetting
principle and gave a bank robbery hypothetical.
Specifically, she described a situation where three people
conspired to rob a bank, one acted as a getaway driver, the
other as the lookout, and the third went into the bank, pointed
a gun, and took the money. She noted that all three people
can be guilty of bank robbery.
The prosecutor then described the second murder “that’s
alleged to have occurred on a different date, different time,
under different circumstances” and that also involved “a
somewhat complex legal principle,” specifically, the felonymurder rule. The prosecutor pointed out that under this rule,
even if a bank robber’s gun accidentally went off during a
struggle with a security guard, the robber would be guilty of
first-degree murder, even though there was no intent to kill.
The prosecutor explained that the felony-murder rule
even reaches out to the people in the car, the
driver and the person standing by the door,
and in some situations they can be guilty of
first[-]degree murder, too. The point I’m
trying to make is under our law with the
theory of first[-]degree murder, it’s not
necessary that an intent to kill be proven to
not address the State’s alternative procedural arguments. See Forest
Guardians v. Dombeck, 131 F.3d 1309, 1313 n.1 (9th Cir. 1997).
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find the defendant guilty of first[-]degree
murder too.
Defense counsel did not object to the prosecutor’s
hypotheticals.
The prosecutor then moved on from the guilt phase to the
penalty phase. She repeated that one of the murders and one
of the special circumstances making Ochoa eligible for the
death penalty involved the felony-murder rule. She asked
whether knowing more about the charges, anybody felt that
the death penalty “is an option.” Gertrude spoke up,
explaining that the death penalty “could be an option . . .
when somebody” acts “deliberately” or “premeditated[ly].”
This view was consistent with her answers in the
questionnaire. But Getrude later explained that based on the
circumstances of Ochoa’s case, the death penalty “would not
be an option for [her].” When pressed by the prosecutor and
the trial court, she unequivocally confirmed her opposition.
When the prosecution asked to remove Gertrude for
cause, Ochoa’s counsel objected. Defense counsel pointed
out that there was “a divergence” between Gertrude’s
questionnaire and oral responses, with her questionnaire
making her “almost” eligible for challenge for cause by
defense, “but when she was questioned in court, she
indicated she could be, in fact, open to the evidence and she
doesn’t think she would consider it, but she didn’t rule out
that possibility.” The trial judge disagreed:
I tried to pin her down at the end and I think
I did. Frankly, I thought I might be able to
rehabilitate her, but I couldn’t. I am satisfied
that in this case she is of a state of mind that
she would not consider a death verdict. And
I think that’s good for a challenge for cause.
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With this background in mind, we turn to Ochoa’s
arguments on appeal. Ochoa contends that the prosecutor’s
hypothetical was “most egregious and misleading” when she
spoke to the first group of prospective jurors, including
Gertrude. But the prosecutor’s hypothetical was neither
“egregious” nor “misleading.” Rather, the prosecutor’s
hypothetical accurately described a relevant principle of
California law for the jurors. To be sure, the prosecutor
discussed an accidental or unintentional murder by a
triggerman through a felony-murder hypothetical. She also
mentioned that a non-triggerman can be guilty of first-degree
murder “in some situations.” As the prosecutor explained,
the “point” of her hypothetical was that under a felonymurder theory, “it’s not necessary that an intent to kill be
proven to find the defendant guilty of first[-]degree murder.”
This is both an accurate statement of California law and a
principle relevant to this case because the prosecutor did not
need to prove intent in Castro’s homicide. And while it is
true that under California law a getaway driver may be guilty
of first-degree murder, but not eligible for the death penalty,
see People v. Armstrong, 6 Cal. 5th 735, 763 (2019) (“Some
getaway drivers, although guilty of first[-]degree felony
murder, may not even be death eligible.”), the prosecutor’s
hypothetical was introduced while addressing the guilt phase
of trial, not the penalty phase. Moreover, any erroneous
impression the prosecutor may have created was dispelled
by both the defense and prosecution referencing the facts of
Ochoa’s case—the jury was aware that Ochoa was not
alleged to be an aider or abettor with respect to any
accidental shooting in the course of a felony. In short, the
prosecutor’s explanation of aiding and abetting and felonymurder principles was an accurate statement of California
law and did not misrepresent the state-law framework. See
Ochoa, 26 Cal. 4th at 431; see also People v. Billa, 31 Cal.
4th 1064, 1068 (2003) (“Th[e] felony-murder rule covers a
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variety of unintended homicides resulting from reckless
behavior, or ordinary negligence, or pure accident . . . .”
(cleaned up)).
With respect to Ochoa’s argument that the prosecutor’s
hypothetical described a defendant that was a lot less
blameworthy, Ochoa relies on the California Supreme
Court’s opinion in Armstrong for the proposition that with
“sufficiently mild hypothetical scenarios, many competent
jurors might say they would be quite likely to vote for life
without the possibility of parole[,]” but that does not mean
“that the same juror would not vote for death under more
aggravating circumstances.” 6 Cal. 5th at 756. In
Armstrong, the defendant was charged with murder,
kidnapping, robbery, rape, and torture, with six special
circumstances and two sentencing enhancements. See id. at
748. During voir dire, the prosecutor presented potential
jurors with several hypotheticals that involved accomplice
liability, including a bank robbery hypothetical with a
getaway driver, a lookout, and the actual killer who went
inside and shot someone. See id. at 752–53. The California
Supreme Court found a Witt/Witherspoon violation because
the trial court excused four jurors for cause, erroneously
focusing on “whether they would be equally willing to
impose death on an aider and abettor as on an actual killer,
rather than on whether they could follow the law and
consider death as an option.” Id. at 757. Ochoa argues that
like in Armstrong, the prosecutor in his case questioned the
potential jurors’ view on the death penalty application
“under significantly less aggravating circumstances than
those presented in her case-in-chief.” Consequently, the
jurors’ answers were not informative as to the question
whether they would be able to fulfill their duties in this case
by considering both penalty options, and those answers
could not be used to find the jurors substantially impaired.
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Ochoa’s argument fails for two reasons.
First,
Armstrong is not clearly established United States Supreme
Court precedent.
Second, Armstrong is plainly
distinguishable. The bank robbery hypothetical regarding
the getaway driver in Armstrong was too dissimilar from the
facts of that case: an accomplice holding down a woman
being raped and tortured and helping kick her to death.
Compare id. at 745–47, with id. at 752–53. More
importantly, it was not used to test whether the jurors would
faithfully apply the law of accomplice-liability. Rather, it
was used to find out how a juror would vote in a particular
fact scenario, which is improper. See id. at 752–53.
This is not what happened during voir dire in Ochoa’s
case.
The prosecutor’s hypothetical explaining the
principles of accomplice-liability and felony-murder was not
that different from the facts of this case: trying to steal a car
with the owner sitting in it is no more violent or
inflammatory than a bank robbery. Further, it was
reasonable for the prosecutor to ask about unintentional
shootings. The defense’s position during the penalty phase
was that Ochoa “did not intend Castro’s death.” Ochoa,
26 Cal. 4th at 460. The prosecutor was entitled to test
whether the jurors would be willing to apply California law
with respect to the felony-murder rule in this case even if
they believed Ochoa did not intend to kill Castro. See
Morgan, 504 U.S. at 733. Furthermore, Gertrude was not
asked how she would vote with respect to a getaway driver
in a bank robbery, that is, she was not asked to commit
herself to a particular result. Rather, the prosecutor used the
hypothetical to explore Gertrude’s ability to convict Ochoa.
Additionally, the State is correct that there is no clearly
established Supreme Court precedent that restricts the
prosecutor from posing legally correct hypotheticals during
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voir dire. Likewise, no Supreme Court authority demands
that, for voir dire purposes, the prosecutor must disclose all
facts that comprise its case. In Morgan, the United States
Supreme Court held that general questions of ability to
“follow the law” are not sufficient to afford the defendant
adequate voir dire to figure out whether the prospective juror
would be capable of imposing a life sentence; instead, the
defendant was entitled to ask, “‘If you found [the defendant]
guilty, would you automatically vote to impose the death
penalty no matter what the facts are?’” Id. at 723, 739.
While Morgan established the minimum constitutional
requirement to life-qualify a jury, the inquiry proposed by
the defendant in that case did not involve any case-specific
questions. Accordingly, Morgan left unanswered whether
any case-specific inquiry is appropriate to determine
whether a juror can consider both a life and a death sentence
in a particular case.
Only the holdings in the Supreme Court’s decisions
constitute “clearly established Federal law.” Atwood v.
Ryan, 870 F.3d 1033, 1046 (9th Cir. 2017). “[I]f a habeas
court must extend a rationale before it can apply to the facts
at hand, then by definition the rationale was not clearly
established at the time of the state-court decision.” White v.
Woodall, 572 U.S. 415, 426 (2014) (cleaned up). A state
court’s refusal to extend a precedent does not warrant habeas
relief unless “it is so obvious that a clearly established rule
applies to a given set of facts that there could be no
fairminded disagreement on the question.” Id. at 427
(cleaned up). Because Witt, Witherspoon, and Morgan only
provide broad principles on the type of inquiry that is
appropriate to death- and life-qualify the jury, they cannot
foreclose the California Supreme Court’s allowance of
hypotheticals during voir dire as an unreasonable application
of clearly established Supreme Court precedent. See
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28 U.S.C. § 2254(d)(1); see also Carey v. Musladin,
549 U.S. 70, 77 (2006) (explaining that when Supreme Court
precedent gives no clear answer, “it cannot be said that the
state court unreasonably applied clearly established Federal
law” (cleaned up)).
Ochoa’s related contention that Gertrude was not
substantially impaired to start with, but “vacillated only after
the prosecutor misrepresented the state-law framework,” is
also not supported by the record. Gertrude’s refusal to
consider the death penalty with respect to felony murder was
in line with her answers in the questionnaire. Further, after
the prosecutor’s questioning, the judge followed up with
Gertrude and reminded her that there were two murders in
the case and only one of them was based on the felonymurder rule. But Gertrude was firm that she was not willing
to consider the death penalty. This supports an inference that
Gertrude was not influenced by the prosecutor’s
hypothetical and her reaction to the hypothetical simply
exposed her preexisting views on the death penalty.
Ochoa further contends that after misleading Gertrude,
the prosecutor “badgered her into giving a disqualifying
response.” But this too is not supported by the record. The
context of the prosecutor’s questions does not demonstrate
harassment. Rather, the prosecutor’s questioning merely
demonstrates an effort to satisfy the burden to establish that
Gertrude was substantially impaired.
Finally, Ochoa claims that the California Supreme Court
unreasonably applied clearly established Supreme Court
precedent, when it placed the burden of showing bias not on
the prosecutor—the party seeking exclusion—but on the
defense. Ochoa relies on the following language in the state
court’s opinion: “To the extent a more accurate
characterization of the case was possible, defendant had the
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opportunity to provide it.” Ochoa, 26 Cal. 4th at 431. But
Ochoa’s argument is contrary to Supreme Court precedent.
In Witt, the Supreme Court also pointed out defense
counsel’s failure to question a prospective juror, reasoning
that such “questioning might have resolved any perceived
ambiguities in the questions.” 469 U.S. at 435; see also id.
at 431 n.11 (“[C]ounsel’s failure to speak in a situation later
claimed to be so rife with ambiguity as to constitute
constitutional error is a circumstance we feel justified in
considering when assessing respondent’s claims.”).
Accordingly, the California Supreme Court’s observation
about defense counsel’s actions in this case was a proper
consideration and did not shift the burden of showing bias
from the State to Ochoa.
Because the California Supreme Court’s conclusion with
respect to Gertrude W. was neither an unreasonable factual
determination nor contrary to or an unreasonable application
of clearly established Supreme Court precedent, we affirm
the district court’s judgment as to Gertrude. See 28 U.S.C.
§ 2254(d)(1), (2).
ii. Patrice V. and Alicia B.
Patrice’s answers to the questionnaire showed her strong
opposition to the death penalty. As she put it, it “is statesanctioned murder,” and the idea of voting for death “scares”
her. Patrice felt that she could put aside her feelings “in
determining guilt or innocence, but if the defendant was
found guilty, [she] would have a difficult emotional time
with the penalty portion.”
In contrast, Alicia’s questionnaire was very sparse and
conveyed that she did not have “a certain opinion” regarding
the death penalty. She also stated that the death penalty was
imposed “too seldom.” But when questioned by defense
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counsel, Alicia clarified that she misunderstood the question
and that she did not “fully agree with the death penalty.”
Like the first group, the second group of prospective
jurors was first informed of the facts of the case by Ochoa’s
counsel. When it was her turn, the prosecutor noted that with
respect to one of the murders, Ochoa “did not actually pull
the trigger” and explained the principle of aiding and
abetting using a bank robbery hypothetical. The prosecutor
then discussed the other murder Ochoa was charged with
where it was alleged that he “killed someone during the
commission of an attempted robbery.” The prosecutor
explained the felony-murder rule and referred to the bank
robbery hypothetical where the bank robber struggled with a
security guard and the gun “accidentally” went off and killed
the security guard. This time, the prosecutor did not mention
her theory of accidental aiding and abetting felony murder.
Beginning with Patrice, the prosecutor confirmed
Patrice’s opposition to the death penalty. Turning next to
Alicia, the prosecutor asked whether she saw herself
“imposing [the death penalty] in this type of case.” Alicia
answered unequivocally, “No.” When the prosecutor asked
again, Alicia twice confirmed her opposition to the death
penalty in “this particular case.”
At that point, defense counsel for the first time raised an
objection to the prosecutor’s hypotheticals. The judge
overruled the objection and granted the prosecutor’s
challenge for cause as to Patrice. Defense counsel objected
that her last answer, although unequivocal, was based on “an
inapplicable hypothetical.” The judge disagreed: “I think
her views taken as a whole from all the oral and written
responses she gave indicate that she does have a problem
with death.”
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The prosecutor then challenged Alicia for cause. Even
after the judge followed up with Alicia, she did not budge
from her position that “this case is not the case for [the] death
penalty” and that no matter what the prosecutor presented at
the penalty phase, she would not vote for death. The court
then excused Patrice and Alicia for cause.
Ochoa’s arguments with respect to Patrice and Alicia do
not differ from the ones related to Gertrude. With respect to
the merits of his claim, it is notable that Ochoa argued that
the prosecutor’s hypothetical was “most egregious and
misleading” when she talked to the first group of prospective
jurors. Nevertheless, Ochoa elsewhere insists that “the
prosecutor mischaracterized the state[-]law framework using
the same misleading hypothetical.” Specifically, Ochoa
objects to the following statement by the prosecutor: “Under
the law of aiding and abetting all three people are equally
guilty of robbery. In other words, the law makes no
distinction as to their level of culpability.” Ochoa contends
this is misleading because “California law does make a
distinction as to the level of culpability between the
triggerman and non[-]triggermen for death eligibility.”
Ochoa emphasizes that the hypothetical was so misleading
that the trial court “felt the need to caution that the jurors
were ‘not getting the full picture.’” The concern is that
jurors were disqualified for cause because they mistakenly
believed the facts to be so benign that they would not support
consideration of the death penalty.
As with the first group, the prosecutor’s hypothetical was
not misleading. She made no mention of the accidental
aiding and abetting felony murder—the only arguably
inapplicable statement in her hypothetical to the first group.
The three people in the bank robbery hypothetical that the
prosecutor presented to later groups—the getaway driver,
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the robber, and the lookout—were in fact guilty of robbery
under California law, like the prosecutor stated. The
prosecutor did not discuss the liability of the triggerman and
non-triggermen and did not state that any of those three
people were eligible for the death penalty. She simply
demonstrated an aiding and abetting principle under
California law. Further, the judge cautioned about the jurors
not getting the full picture. This was because the
prosecutor’s focus on the Castro murder could have resulted
in the jurors losing sight of the willful, deliberate, and
premeditated nature of the Navarette murder and the
additional aggravating factors that would be presented
during the penalty phase.
Turning to the merits of Patrice’s removal, there was
sufficient evidence in the record to support the conclusion
that her personal beliefs about the death penalty would
prevent or substantially impair her ability to abide by her
oath and follow instructions. It was proper for the trial court
to exclude her given her strong opposition to the death
penalty and her contradictory statements on whether she
could follow instructions regarding its application. See Witt,
469 U.S. at 434 (explaining that it is proper to resolve
ambiguities in a juror’s statements “in favor of the State”).
It is also important to note that defense counsel did not ask
the court to follow up with Patrice to rehabilitate her, even
though counsel made this request about Alicia following the
prosecutor’s challenge to both Patrice and Alicia. This
failure provides an inference that counsel must have made a
judgment call that Patrice was not able to be rehabilitated.
See id. at 431 n.11, 434–35.
The trial court’s removal of Alicia was also proper. Even
after the trial court followed up with her, she remained firm
that she could not consider the death penalty in this case.
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Defense counsel informed the prospective jurors that the
Navarette murder involved a gang pay back. And the trial
court reminded Alicia that there were two murders and that
she might hear additional aggravating evidence during the
penalty phase before she expressed her opinion that she
could not consider imposing the death penalty. The trial
judge’s decision is entitled to considerable deference
because it is based on his face-to-face credibility assessment
of Alicia. See id. at 426–29.
Because the California Supreme Court’s conclusions
with respect to Patrice V. and Alicia B. were neither
unreasonable factual determinations nor contrary to or
unreasonable applications of clearly established Supreme
Court precedent, we affirm the district court’s judgment as
to Patrice and Alicia. See 28 U.S.C. § 2254(d)(1), (2).
iii. Linda H.
Linda’s answers to the questionnaire reflected both a
clear opposition to the death penalty and an inability to
follow the law. She indicated, for example, that she was
“against the death penalty,” believing it to be “murder on
another human being.” She also indicated that she would
“always vote against death, no matter what evidence might
be presented during a penalty trial,” which she confirmed
orally to the trial court.
As with prior groups of prospective jurors, defense
counsel described the facts of the case to Linda’s group
before questioning from the prosecutor.
While the
prosecutor was explaining the principle of aiding and
abetting, Linda expressed some confusion about the
principle and asked for clarification. The prosecutor then
used a hypothetical store robbery scenario to explain the
principle. The prosecutor went on to explain the felony-
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murder rule, which she illustrated with a hypothetical where
a robber “gets nervous and pulls the trigger, totally spur of
the moment kind of reaction, and he kills th[e] cashier.”
Following the prosecutor’s explanation of these
principles, Linda confirmed her feelings that the death
penalty was “premeditated murder” and that she was
“against the death penalty always . . . in every case” and
could not vote for the death penalty “in any case.” Defense
counsel did not try to rehabilitate Linda during rebuttal voir
dire. He objected, however, to Linda’s removal for cause.
The trial court noted that Linda “was very strong at the end
in stating, quote ‘in no case could I vote for the death
penalty.’” The California Supreme Court singled out Linda
in its opinion, noting that she was properly excused because
her “comments revealed her unambiguous opposition to the
death penalty.” Ochoa, 26 Cal. 4th at 432.
As with the prior groups, the prosecutor’s hypothetical
was not misleading. It was an accurate reflection of
California law and closely tracked the facts of the Castro
murder. And the two people described in the hypothetical
were in fact guilty of robbery under California law, as the
prosecutor stated. In addition, defense counsel described the
facts of Ochoa’s crimes to prospective jurors as well.
Further, there was sufficient evidence in the record to
support the trial court’s conclusion that Linda’s beliefs about
the death penalty would prevent or substantially impair her
ability to abide by her oath and follow instructions. It was
proper for the trial court to exclude her given her adamant
opposition to the death penalty and her mostly consistent
statements that she could not follow instructions regarding
application of the death penalty. Notably, defense counsel
reserved time for rebuttal voir dire but used that time on
questioning other jurors. This might reflect counsel’s
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judgment call that Linda was beyond rehabilitation. See
Witt, 469 U.S. at 431 n.11, 434–35.
Because the California Supreme Court’s conclusion with
respect to Linda H. was neither an unreasonable factual
determination nor contrary to or an unreasonable application
of clearly established Supreme Court precedent, we affirm
the district court’s judgment as to Linda. See 28 U.S.C.
§ 2254(d)(1), (2).
iv. Martha C., Arthur R., and Lynn J.
In her questionnaire, Martha expressed general
opposition to the death penalty and an inability to follow the
law. For example, she, like Linda H., indicated that she
would “always vote against death, no matter what evidence
might be presented during a penalty trial.” Martha
confirmed these feelings when questioned during voir dire.
Arthur’s questionnaire, on the other hand, showed his
support of the prosecution and the death penalty. Finally,
Lynn’s questionnaire presented a balanced view of the death
penalty.
As with the prior groups, the defense briefly informed
the group of the facts regarding the two murders before
questioning by the prosecutor.
After hearing the
prosecutor’s description of aiding and abetting liability,
Arthur volunteered he would have a “somewhat” difficult
time finding an aider and abettor guilty of first-degree
murder, but he could do so where it was “pretty clear that the
person was really connected.” Upon further questioning by
the prosecutor, Arthur equivocated until finally concluding
that even if the death penalty were “appropriate,” he “would
. . . not [be] able to follow through” with voting for it.
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The prosecutor then explained the felony-murder rule.
She posed her bank hypothetical where a person went to rob
a bank, got into a struggle with a security guard, and the
security guard was killed when the gun went off
“accidentally.” Finally, she discussed multiple murder and
robbery-murder special circumstances, noting that this was
“[not] an accidental killing necessarily, but it was a killing
during the commission of a robbery without any
premeditation or deliberation on the part of the defendant to
kill his victim.” Lynn volunteered he thought it might be
best to limit capital punishment to premeditated and
deliberate murders and confirmed his questionnaire
statement that the death penalty should be limited to cases of
mass murder, unusual cruelty, torture, or murder while in
prison. Consistent with this view, he agreed “that this is not
a case where [he] could consider the penalty of death.”
The defense objected to the removal of Martha, Arthur,
and Lynn for cause because their responses were based on
“very misleading hypothetical situations which didn’t bring
about the facts of the case.” The trial court responded it did
not believe it was a close question as to any of the three
jurors.
As with the prior groups, it was not misleading for the
prosecutor to refer to accidental murder, as it qualifies as
first-degree murder under the felony-murder rule in
California. See Billa, 31 Cal. 4th at 1068. Notably, the
prosecutor was not discussing an aider and abettor when
talking about an accidental murder. And following the
presentation of the hypothetical, the prosecutor clarified that
the Castro murder was “[not] an accidental killing
necessarily, but it was a killing during the commission of a
robbery without any premeditation or deliberation on the
part of the defendant to kill his victim.” This was consistent
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with the defense’s description of the Castro murder to this
group of jurors. In short, the jury was on notice that there
was no accidental murder charged in this case.
Moreover, all three jurors provided unequivocal
responses that they could not consider the death penalty and
apply the law. That position was consistent with Martha’s
and Lynn’s questionnaire answers. Martha’s answers
showed that she would always vote for life regardless of the
evidence. Lynn’s answers showed he was willing to
consider the death penalty only in specific situations that did
not include Ochoa’s case, such as mass murders, torture, and
murder while in prison. While Arthur’s questionnaire was
supportive of the death penalty, he went back and forth
during the voir dire before finally concluding that he would
not be able to impose the death penalty. The trial court was
able to observe Arthur’s demeanor and consider his final,
unequivocal answers before it decided to exclude him. See
Uttecht, 551 U.S. at 20 (holding that the trial court was
within its discretion to exclude a juror because the record
“show[ed] considerable confusion on the part of the juror”).
As the Supreme Court emphasized in Darden v. Wainwright,
477 U.S. 168 (1986), even when “[t]he precise wording of
the question asked of [the juror], and the answer he gave, do
not by themselves compel the conclusion that he could not
under any circumstance recommend the death penalty,”
deference to the trial court is necessary because so much may
turn on its assessment of a juror’s demeanor. Id. at 178. The
trial court observed that it was not a close question as to any
of the three jurors. And the court did not perceive any need
to follow up with these three jurors after the prosecutor’s
questioning.
Because the California Supreme Court’s conclusions
with respect to Martha C., Arthur R., and Lynn J. were
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neither unreasonable factual determinations nor contrary to
or unreasonable applications of clearly established Supreme
Court precedent, we affirm the district court’s judgment as
to Martha, Arthur, and Lynn. See 28 U.S.C. § 2254(d)(1),
(2).
v. Totality of Voir Dire
“In applying the principles of Witherspoon and Witt, it is
instructive to consider the entire voir dire.” Uttecht,
551 U.S. at 10. In this case, the jury was selected over the
course of seven days. There is no significant disparity
between the trial court’s rulings on the parties’ challenges.
See id. Moreover, before deciding a contested challenge, the
trial court allowed each side to explain its position. And
when issuing a decision, the trial court provided “careful and
measured explanations.” Id. at 11.
Several challenges illustrate the court’s thoughtful and
careful
consideration
and
application
of
the
Witt/Witherspoon substantial impairment standard. In the
first group of prospective jurors, for example, the trial judge
excused a prospective juror for cause on his own motion,
over the prosecutor’s objection, reasoning that the
prospective juror was “all over the place” and thought Ochoa
was guilty because he did not turn around to look at the jury.
The record also reflects that the trial court paid close
attention to the jurors’ body language. See Ristaino v. Ross,
424 U.S. 589, 595 (1976) (“[T]he determination of
impartiality, in which demeanor plays such an important
part, is particularly within the province of the trial judge.”
(cleaned up)).
The totality of voir dire thus supports the conclusion that
the trial court’s decisions as to the seven prospective jurors
are entitled to deference. See Uttecht, 551 U.S. at 10–13
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(analyzing the number of challenges for cause each party
made and the number granted, that the trial court “gave each
side a chance to explain its position and recall the potential
juror for additional questioning[,]” that “the court gave
careful and measured explanations[,]” and scrutinizing the
vigor and persuasiveness of defense’s objections). For all
the reasons noted above, we affirm the district court’s
judgment as to Ochoa’s Witt/Witherspoon claim.
2. Second Certified Claim: Ineffective Assistance of
Counsel for Failing to Rehabilitate Prospective
Jurors Challenged for Cause
Ochoa contends that his trial counsel were ineffective
because the excusals for cause challenged in the claim above
were based upon “counsel’s failure to investigate,
adequately object[,] and/or rehabilitate the prospective
jurors.” On this issue, the California Supreme Court’s denial
of Ochoa’s second state petition is the last reasoned decision.
The California Supreme Court summarily denied Ochoa’s
ineffective assistance of counsel claim “on the merits.”
Applying AEDPA deference, the district court also
denied this claim on the merits:
The California Supreme Court may have
reasonably
rejected
as
speculative
Petitioner’s claims that there is a reasonable
probability that counsel’s investigation and
rehabilitation of the jurors would have spared
them. As to Petitioner’s allegation that trial
counsel should have objected to the
prosecutor’s hypothetical, the California
Supreme Court may have reasonably held
that prospective jurors Gertrude W., Patrice
V., and Alicia B. were substantially impaired
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in their ability to impose the death penalty
unrelated to the prosecutor’s hypothetical. It
may have reasonably denied that portion of
the claim for lack of prejudice.
Because the California Supreme Court’s conclusion was
neither an unreasonable factual determination nor contrary
to or an unreasonable application of clearly established
Supreme Court precedent, we affirm the district court’s
denial of relief. See 28 U.S.C. § 2254(d)(1), (2).
a. Standard of Review
Before addressing the merits of Ochoa’s claim, we must
determine the proper standard of review. In his briefing,
Ochoa argues that because the California Supreme Court
summarily denied his ineffective assistance of counsel claim
without conducting an evidentiary hearing, it was only a
determination that he failed to state a prima facie case and
thus de novo review, rather than AEDPA deference, is the
appropriate standard of review. Notably, during oral
argument Ochoa’s counsel explicitly disclaimed this
argument.
Nevertheless, “we must determine the
appropriate standard of review.” United States v. Ziskin,
360 F.3d 934, 938 (9th Cir. 2003); cf. Hernandez v. Holland,
750 F.3d 843, 856 (9th Cir. 2014) (“[T]he AEDPA standard
of review itself cannot be waived.”).
Almost two decades ago in Nunes v. Mueller, 350 F.3d
1045 (9th Cir. 2003), a panel of this court expressly credited
a prima facie argument similar to Ochoa’s. Id. at 1056. But
in Pinholster, the Supreme Court seemingly rejected the
same argument, holding that AEDPA deference “applies
even where there has been a summary denial.” 563 U.S.
at 187; see Richter, 562 U.S. at 99 (“There is no merit to the
assertion that compliance with § 2254(d) should be excused
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when state courts issue summary rulings . . . .”). Since then,
we have consistently rejected—albeit implicitly—similar
prima facie arguments. See, e.g., Montiel v. Chappell,
43 F.4th 942, 956–57 (9th Cir. 2022); Ochoa v. Davis,
16 F.4th 1314, 1344 (9th Cir. 2021); Sully v. Ayers, 725 F.3d
1057, 1067 n.4 (9th Cir. 2013). Accordingly, we take this
opportunity to make explicit what has to this point been
implicit: the California Supreme Court’s summary denial of
Ochoa’s claims—both certified and uncertified—is a
decision on the merits and thus entitled to AEDPA
deference.
b. Applicable Law
To prevail on his ineffective assistance claim, Ochoa
must demonstrate that: (1) “counsel’s performance was
deficient”; and (2) the “deficient performance prejudiced
[his] defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984); see Williams, 529 U.S. at 390–91. Under the first
prong, Strickland requires a showing that counsel’s
performance was deficient, measured under “an objective
standard of reasonableness.” Strickland, 466 U.S. at 688.
This standard gives a “strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance; that is, [Ochoa] must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 689
(cleaned up). Under the second prong, Ochoa must establish
“a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would
have been different.” Id. at 694.
“The Strickland standard is a general one, so the range
of reasonable applications is substantial.” Richter, 562 U.S.
at 105. “Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more
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difficult. The standards created by Strickland and § 2254(d)
are both highly deferential, and when the two apply in
tandem, review is doubly so.” Id. (cleaned up). “When
§ 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
c. Analysis
i. Counsel’s Performance
Ochoa contends that defense counsel’s performance was
deficient because counsel failed to: (1) object to the
prosecutor’s bank robbery hypotheticals; and (2) rehabilitate
the jurors who were challenged under Witt and Witherspoon.
But Ochoa fails to overcome the presumption that defense
counsel’s conduct fell within the wide range of reasonable
professional assistance. See Strickland, 466 U.S. at 687. As
discussed above, the prosecutor’s hypotheticals were not
objectionable. They were an accurate statement of relevant
California law. Accordingly, counsel was not deficient in
failing to raise a meritless objection.
Nevertheless, after the prosecutor challenged the jurors
from the second group, Ochoa’s counsel did object to the
prosecutor’s hypotheticals. Defense counsel vigorously
argued that the prosecutor was downplaying both murders,
which resulted in exclusion of four jurors. Counsel also
asked the court to follow up with Alicia with the same
questions that the court asked another juror, to remind Alicia
that there were two murders in this case and that the
prosecutor may present aggravating evidence during the
penalty phase. After the second group was dismissed and
following a recess, counsel renewed the objection to the
prosecutor’s hypothetical. Counsel also asked the court to
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reverse the order in which the parties do their questioning
and allow defense to go after the prosecution. While the
court refused to reverse the order, it allowed defense counsel
to reserve some time to rehabilitate the jurors. Counsel
continued raising the objection with respect to the
hypotheticals in subsequent groups.
Although Ochoa claims that counsel should have
objected sooner to the hypothetical the prosecutor presented
to the first and second group, the timing of the objection
appears to be irrelevant since the objection was overruled.
And Ochoa does not claim that objections with respect to the
other groups were inadequate. After the first group, the
prosecutor never again referenced an aider and abettor in a
felony-murder situation.
Furthermore, there was considerable evidence that each
of the challenged jurors was substantially impaired in his or
her ability to impose the death penalty in this case. Ochoa
has not explained how investigating them or further
questioning would have rehabilitated a single excused juror
to the point that excusal for cause was unconstitutional.
First, they expressly stated that they would not be able to
consider the death penalty and follow the law in response to
questions from the prosecutor, the defense, and the trial
court. Second, to the extent their answers were not clear, the
judge followed up with some jurors either on his own accord
or at the request of counsel. The judge also allowed the
defense to save time at the end for a rebuttal voir dire and
defense counsel did use that time.
Moreover, counsel was constrained by the ordinary and
customary practical considerations such as the limited
amount of time allowed for voir dire and a concern about
tainting the jury against the defendant by highlighting the
worst facts about the murders. See United States v. Cronic,
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466 U.S. 648, 661–62, 662 n.31 (1984) (explaining that
“external constraints” imposed on counsel do not give rise to
an ineffective assistance of counsel claim merely because
they make counsel’s task more difficult). Counsel had thirty
minutes for voir dire with each group of up to seventeen
jurors. In addition to questioning, counsel strived to explain
certain concepts to the jury. That left less than two minutes
per juror to find out about their individual biases, clarify
answers in the questionnaire, and attempt rehabilitation.
Finally, the presumption that counsel’s conduct was
reasonable is even stronger when an experienced trial
counsel is involved. Stewart v. Sec’y, Dep’t of Corr.,
476 F.3d 1193, 1209 n.25 (11th Cir. 2007). Both of Ochoa’s
counsel were experienced capital defense attorneys. Prior to
being appointed to represent Ochoa, the counsel who
handled the questioning of jurors during voir dire had been
appointed or retained more than ten times in capital cases.
Despite Ochoa’s insistence on faulting counsel, he offered
no testimony or other evidence from them on this issue. This
omission is particularly significant given the range of
deference given to counsel’s strategic decisions based on,
among other things, observations of jurors’ credibility and
demeanor.
For all these reasons, Ochoa fails to overcome the
presumption that defense counsel’s conduct fell within the
wide range of reasonable professional assistance. See
Strickland, 466 U.S. at 687.
ii. Prejudice to Ochoa
Ochoa also fails to show how trial counsel’s failure to
object or try to rehabilitate some of the jurors prejudiced
him. Ochoa must show a “reasonable probability” that an
objection would have led to any of the jurors not being
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excused for cause. See Knowles v. Mirzayance, 556 U.S.
111, 127 (2009) (citing Strickland, 466 U.S. at 694). Ochoa
cannot meet this standard. All he has done is speculate about
whether any of the excused jurors would have given
different answers to different hypotheticals. Further, “the
trial court expressly indicated it would not dismiss for cause
a prospective juror who based her stated inability to impose
the death penalty on a description of the case that the court
deemed misleading.” Ochoa, 26 Cal. 4th at 431–32.
Because it was neither an unreasonable factual
determination nor contrary to or an unreasonable application
of clearly established Supreme Court precedent for the
California Supreme Court to have determined that Ochoa’s
counsel were not ineffective during voir dire, we affirm the
district court. See 28 U.S.C. § 2254(d)(1), (2).
d. Request for Evidentiary Hearing
Ochoa contends that the district court abused its
discretion in denying an evidentiary hearing with respect to
his ineffective assistance of counsel claim. He argues that
“[a]t a hearing, [he] could have questioned the removed
jurors regarding the impact of the prosecutor’s hypothetical
in order to establish a reasonable probability that at least one
of the jurors would not have been removed.”
We review the district court’s denial of a petitioner’s
request for an evidentiary hearing for abuse of discretion.
See Schriro v. Landrigan, 550 U.S. 465, 468 (2007); Earp v.
Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). AEDPA
prohibits an evidentiary hearing where a petitioner has not
been diligent in pursuing his claims in state court. See
28 U.S.C. § 2254(e)(2). The diligence determination is
reviewed de novo. Baja v. Ducharme, 187 F.3d 1075, 1077
(9th Cir. 1999). In addition to finding diligence, “[i]n
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OCHOA V. DAVIS
deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations,” and
whether those allegations, if true, would entitle him to relief.
Landrigan, 550 U.S. at 474.
Ochoa has not shown that an evidentiary hearing could
result in any useful evidence to prove the factual allegations
in his petition. First, even if the excluded jurors remembered
what impact a hypothetical by the prosecutor had on them
almost thirty years ago, there is no evidence in the record to
show that the jurors if presented with the concepts of aiding
and abetting and felony murder in a less innocuous fashion
would conclude that they could apply the death penalty in a
case like Ochoa’s. After all, Gertrude made clear in her
questionnaire that she felt anybody who did not commit
premeditated murder should get life in prison. Likewise,
Lynn felt that the death penalty should be limited to cases of
mass murder, torture, or murder in prison, and none of those
circumstances was present in this case. Second, any such
testimony by the excluded jurors would not change whether
counsel perceived them as substantially impaired and
whether counsel believed any of them could be rehabilitated.
Third, even if the jurors testified that they remembered that
the prosecutor’s hypothetical made a significant impact on
their ability to consider the death penalty in this case, Ochoa
would still not be able to show that in light of their demeanor
and answers on the questionnaires, counsel would have
successfully convinced the trial court that they were not
substantially impaired. See Witt, 469 U.S. at 424–25.
Moreover, the trial court is entitled to resolve any ambiguity
in answers in favor of the State. Id. at 434. At most, the trial
court would have been left with conflicting answers, and
thus, it would have been justified in resolving the
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ambiguities in favor of the State and excluding the jurors.
Id.
Because the district court did not abuse its discretion in
denying Ochoa’s request for an evidentiary hearing, we
affirm the district court’s denial of his request. 2
B. The Uncertified Claims
We may not review Ochoa’s uncertified claims unless a
certificate of appealability is granted on them. See 28 U.S.C.
§ 2253(c)(1)(A) (“Unless a . . . judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from . . . the final order in a habeas corpus
proceeding.”). To obtain a certificate of appealability on a
claim, “a petitioner must show 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.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (cleaned up). While we ultimately affirm the district
court’s judgment on the merits with respect to both of the
uncertified claims, because we conclude that “jurists of
reason could disagree” with the district court’s denial of
these claims, we expand the certificate of appealability to
cover them. See id. at 327; see also 28 U.S.C. § 2253(c)(2).
To the extent Ochoa argues that an evidentiary hearing is warranted
with respect to his uncertified claims, he fails to specifically argue what
an evidentiary hearing would add to the state court record. Accordingly,
we also affirm the district court’s denial of Ochoa’s request for an
evidentiary hearing with respect to his uncertified claims. See AcostaHuerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (“Issues raised in a
brief which are not supported by argument are deemed abandoned.”); see
also Landrigan, 550 U.S. at 474.
2
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1. First Uncertified Claim: Ineffective Assistance of
Counsel During the Penalty Phase
Ochoa contends that his defense counsel were ineffective
during the penalty phase for failing to present mitigating
evidence, such as evidence of his brain damage and
traumatic childhood. He also faults his counsel for failing to
investigate and attack the prosecution’s aggravation
evidence, including failing to present a gang expert.
Ochoa raised this claim in both of his state habeas
petitions. The California Supreme Court summarily denied
the claim “on the merits.”
The district court also denied Ochoa’s claim, finding that
trial counsel was not deficient. The district court found that
counsel’s investigation and penalty phase presentation were
reasonable, and counsel reasonably relied on Dr. Michael
Maloney’s evaluation of Ochoa. The district court further
determined that the record belied Ochoa’s allegations that
counsel ignored evidence of grossly ineffective parenting.
Counsel’s strategy during the penalty phase was to evoke
sympathy for Ochoa’s family.
Although counsel’s
investigation uncovered evidence of the father’s drinking
and siblings’ gang affiliations, it was a reasonable strategic
decision not to present this evidence to avoid undermining
the defense’s strategy. Likewise, the decision not to present
a gang expert was done after a reasonable investigation and
was itself reasonable.
Because the California Supreme Court’s conclusion was
neither an unreasonable factual determination nor contrary
to or an unreasonable application of clearly established
Supreme Court precedent, we affirm the district court. See
28 U.S.C. § 2254(d)(1), (2).
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a. Applicable Law
As discussed above, ineffective assistance of counsel
claims are reviewed under “[t]he standards created by
Strickland and § 2254(d)[,] . . . both [of which are] highly
deferential and when appl[ied] in tandem, review is doubly
so.” Richter, 562 U.S. at 105 (cleaned up). When reviewing
a penalty-phase ineffective assistance of counsel claim, we
first “focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of
[petitioner’s] background was itself reasonable.” Wiggins v.
Smith, 539 U.S. 510, 523 (2003). To assess prejudice in the
context of such a claim, federal courts must “reweigh the
evidence in aggravation against the totality of available
mitigating evidence.” Id. at 534. Ochoa must establish “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been
different.” Strickland, 466 U.S. at 694. In a capital case,
this means he must show “a reasonable probability that at
least one juror” would have voted for a life sentence.
Wiggins, 539 U.S. at 537.
b. Analysis
i. Evidence Presented During the Penalty
Phase
During the penalty phase, the prosecution presented
evidence that Ochoa had previously pleaded guilty to several
felonies as an adult. When Ochoa was eighteen years old,
he and another gang member jumped out of the car, beat up
fourteen-year-old Lionel Fricks and took his radio. Ochoa,
26 Cal. 4th at 419. When Ochoa was twenty, Ochoa took a
vehicle without the owner’s consent. Id. at 420. And when
he was twenty-one, just hours after the Castro murder,
Ochoa robbed Freddie Garcia at a gas station. Id.
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The jury was also apprised that Ochoa had an
“extensive” juvenile record, spent a year in a juvenile camp,
and was on probation after the camp. The jury also learned
that while awaiting trial in this case, Ochoa participated in a
fight between black and Hispanic inmates in the jail; a
deputy found a makeshift handcuff key inside Ochoa’s
wristband while he was transported to court; and another
deputy found a shank in Ochoa’s property bag. Id.
The victims’ families provided victim impact evidence.
Rudolfo Rivera, Navarette’s brother and passenger on the
night of the murder, testified Navarette worked long hours
six days a week to help support his family. Id. Navarette’s
“death was especially difficult for his mother . . . nearly three
years after the shooting.” Id. Castro’s sisters testified how
close their family was and how much their mother was
impacted. Id. Castro’s wife testified that they were high
school sweethearts and that he had a close relationship with
their thirteen-year-old son, Joey. Joey had been attending
counseling since the murder. He often asked his mother
“what would Daddy do” in certain situations. Id. at 420–21.
In response, the defense produced Rosalba (“Rosie”)
Gallegos, Ochoa’s oldest sister, Eduardo Ochoa Sr., Ochoa’s
father, and Lisa Martinez, mother of Ochoa’s daughter, to
describe Ochoa’s life and character. Id. at 421–22. They
testified that Ochoa was the fourth of five children born to
Eduardo Sr. and Ofelia Ochoa in Tijuana. Id. at 421. The
other children were Rosie, Eduardo Jr., Gloria, and Lisa.
Ochoa’s family moved to the United States when he was
three years old. Id. His parents worked outside the home
during the day, so Rosie often acted as Ochoa’s surrogate
mother. Id. Eduardo Sr. and Rosie testified that Ochoa was
the only one of the children that had “trouble with the law.”
Although Ochoa did well in elementary school, he began
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missing school, dressing as a gangster, and getting tattoos
once he was in high school. Id. at 422.
When Ochoa was fifteen years old, he met Lisa
Martinez. Ochoa studied with Lisa to become a dental
technician. He earned his diploma but was unable to find
work in the field. Id. Ochoa and Lisa had a daughter,
Claudia. Id. They lived together with Ochoa’s parents and
siblings for two years. Ochoa loved and played with Claudia
a lot. He also stayed in touch with Claudia after the couple
split up and while he was in jail waiting for trial. Ochoa also
maintained close ties with his sister Rosie’s children. They
visited him in prison and were excited when he called to
speak with them on the phone.
The remaining evidence at the penalty phase was
presented in rebuttal to the prosecution’s case-inaggravation. A fellow gang member testified that Ochoa did
not hit the teenager during the robbery, but his accomplice
did; correctional officers testified that Ochoa was a lesser
player in the jail fight; and a correctional consultant testified
regarding security measures at high-security California
prisons housing life prisoners.
ii. Evidence Submitted with Ochoa’s State
Habeas Petitions
With his state habeas petitions, Ochoa submitted
declarations from family members, neighbors, and experts.
Ochoa contends that if his trial counsel were effective, the
jury would have heard that: (1) Ochoa was raised in
“desolate conditions” and left with an alcoholic father and
then a babysitter during weekdays for the first two years of
his life; (2) Ochoa was “plagued with risk factors making
gangs attractive [to him], coupled with the utter lack of
protective factors that could have helped him resist the gang
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influence”; (3) Ochoa had neuropsychological deficits
“probably from birth” that were worsened by the violent
attacks he suffered during gang warfare; (4) Ochoa’s tattoos,
including the “187” he carved in his forehead while waiting
for trial, were a reflection of how vulnerable and unprotected
he had felt since childhood; and (5) Ochoa’s sister Gloria
suffered from cognitive disabilities and was most likely the
victim of incest with her father.
According to the declarations, when Ochoa was “a
baby,” Eduardo Sr. and Ofelia went to work in the United
States, leaving their children with a babysitter in Tijuana.
The neighbors told Ofelia that the babysitter fed the children
tortillas and black coffee and left them with Rosie while she
went dancing. When Ofelia and Eduardo came home, the
children were vomiting and had spots on their faces from
coffee.
Ochoa’s parents provided “little or no supervision” or
guidance to Ochoa and his siblings. And throughout
Ochoa’s childhood, Eduardo Sr. drank heavily. Although
Eduardo Sr. was arrested three times for driving under the
influence, he was never violent or abusive when drunk.
Ochoa initially joined the Pee Wee Winos, the junior
subgroup of the 18th Street gang, when he was eleven years
old. He was jumped into the 18th Street gang when he was
thirteen. According to Gloria, “it was normal to join the
gangs” in their neighborhood, and half of the kids from their
school were in gangs. Eduardo Jr. joined the 18th Street
gang at thirteen years old and dropped out at eighteen.
According to him, “[i]n those days, being in the gang really
just meant hanging out together.” Gloria joined the gang
after Ochoa. Ochoa’s parents “seemed to be concerned that
their children were joining the gangs but they didn’t know
what to do about it. The mother used to cry a lot.”
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A psychologist, Dr. Patricia Pérez-Arce, conducted
neuropsychological testing of Ochoa eleven years after the
murders, and opined that Ochoa suffers from “significant
deficits in his ability to analyze visual and verbal
information when the content is abstract, complex, and/or
unfamiliar, in using common sense judgment to solve
problems, and in visual spatial memory functions.” “This
central nervous impairment is likely to have been present
from birth and probably exacerbated” by two attacks from
rival gang members Ochoa suffered as a teenager.
Specifically, when Ochoa was twelve years old, he was “hit
with a bumper jack in the chest” and “blanked out.” And
when he was eighteen, Ochoa was beaten by rival gang
members with a bat. He had a “neck fracture” and spent time
in the hospital.
Another psychologist, Dr. Nancy Kaser-Boyd, also
conducted a psychological evaluation of Ochoa eleven years
after the murders. She opined that Ochoa has a history of
“overwhelming environmental stress by way of family
circumstances and economic hardship.” She diagnosed
Ochoa with post-traumatic stress disorder (“PTSD”) based
on the assaults he experienced. She also opined that due to
either “environmental deprivation, family genetics, or head
trauma, [Ochoa] had limited cognitive abilities and coping
skills” at the time of the offenses.
A third psychologist, Dr. Francisco Gomez, summarized
Ochoa’s life history and opined that his mental impairments
were recognized by his peers when he was quite young.
According to Ochoa’s gang expert Father Gregory
Boyle, S.J., “[t]he mere presence or absence of tattoos will
not necessarily tell you how involved a person is in gang
violence.” Tattoos “are a way of stating your involvement
in the gang, but they can be posturing and posing.” Father
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OCHOA V. DAVIS
Boyle also disputed the expertise of prosecution expert
Detective Michael Berchem. 3 He believed that police
officers who testify as experts “have limited knowledge of
the actual lives of the gang members they arrest and
interrogate.”
Finally, the Silva family, the Ochoas’ neighbors, and
Lisa Martinez (who lived with the Ochoas for two years),
believed that Eduardo Sr. carried on an incestuous
relationship with his daughter, Gloria, and is the likely father
of her five children. They related several incidents that
appeared suspicious to them.
iii. Counsel’s Performance
Ochoa fails to rebut the presumption of counsel’s
competence mandated by Strickland. As part of their
investigation, Ochoa’s trial counsel hired a mitigation
investigator Sheryl Duvall, M.S., to assist with the
preparation of the penalty phase defense. Duvall conducted
a comprehensive review of Ochoa’s background. She met
with Ochoa in jail and reported to defense counsel, “He gave
me a fairly comprehensive picture of his background.”
Duvall personally interviewed members of Ochoa’s
immediate family, including his parents, siblings, and the
mother of his child, as well as Ochoa’s former teacher and a
former principal at Ochoa’s court-ordered juvenile camp,
two neighbors and close family friends, and a next-door
neighbor of more than twenty-five years. Duvall also
3
The trial court permitted Detective Berchem “to testify as an expert
concerning [Ochoa’s] gang-related tattoos, including the ‘187’ mark.”
Ochoa, 26 Cal. 4th at 439. Detective Berchem explained the significance
of this mark to the jury and testified that “the extent of [Ochoa’s] 18th
Street Gang tattoos signified his ‘hard-core’ member status.” Id. at 437.
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gathered and analyzed documents pertaining to Ochoa’s
education, physical health, and juvenile court record.
Counsel also retained Dr. Maloney, who was well known
in the criminal defense community, had testified “hundreds
of times” for both the prosecution and defense, and was liked
by counsel after previously working for them. In a letter to
Dr. Maloney in preparation for his work on Ochoa’s case,
counsel enclosed summary police reports and informed him
that there was also extensive documentation from two
“Murder Books” that was available. Counsel advised
Dr. Maloney that Duvall should have provided him with her
interview reports and that he would send Ochoa’s medical
records from an assault at age eighteen that had been
subpoenaed. Counsel said that Ochoa was “a real mystery”
and asked for Dr. Maloney’s help in understanding him:
His family background is different from other
Death Penalty cases I have handled in that his
parents seem extremely caring and concerned
(as you can tell from Sheryl Duval[l]’s
Reports). Though they do not speak English
at all, they show up at every Court
Appearance, including continuances. The
parents, and Sergio’s siblings have been very
cooperative in terms of background
investigation. In other words, Sergio does
not seem to have the horrible family
background that so often spawns Death
Penalty candidates. . . .
[T]he cold blooded Castro murder does not
make sense to me in light of Sergio’s
background and family history, and in light
of what his family and other people we have
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interviewed say about him; that is, that he is
a nice, thoughtful, considerate guy.
Finally, counsel retained Diego Vigil, Ph.D., to assist in
the preparation of the penalty phase. Dr. Vigil, a professor
at the University of Southern California, had “extensive
background and training in the field of Gangs, and Gang
Activity, with a specialty in Hispanic Gangs.” Dr. Vigil
interviewed Ochoa, reviewed documents, and consulted
with counsel on three occasions.
Ochoa raises several arguments why this investigation
was not reasonable. First, he relies on counsel’s “admission”
that they presented a false picture of their client. He
specifically points to the following argument that counsel
made during closing:
We always learn things at a trial.
And yesterday one of the most significant
things that I learned and that [my co-counsel]
learned during the course of this trial was just
how out of touch with reality Sergio’s family
was regarding his activities.
If you will recall Rosie testified and
Mr. Ochoa both testified that . . . the first
time in his life there were problems was when
he was approximately [thirteen] years old
....
Yet yesterday there was testimony from
Dr. Maloney which not only surprised me but
I felt had inherent credibility to it, and clearly
demonstrated the problems perceiving Sergio
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that unfortunately his parents had, their lack
of touch with reality as to what was going on
in his life . . . .
[Y]esterday for the first time in when we
were questioning Dr. Maloney regarding
what information he relied on and he testified
that he was relying on . . . Sergio’s direct and
clear statements to him that he first became
involved in gang activity when he was about
eleven and the gang was the Pee Wee Winos.
Ochoa’s argument is not persuasive. This was no
“admission” of incompetence, and it did not show that a false
picture was presented to the jury. There was some confusion
about the exact timing when Ochoa joined the gang because
Ochoa did join the 18th Street gang—the gang that he
committed the relevant offenses with—at thirteen years old.
Other witnesses who submitted declarations with Ochoa’s
state habeas petitions discussed that fact as well.
Further, counsel used this fact to illustrate the mitigating
factor that they had been presenting throughout the penalty
phase—that Ochoa’s family was well-meaning, but not
attentive and did not notice him joining a gang for two years.
Most importantly, there is no evidence that the difference
between Ochoa joining a gang at age eleven or thirteen
would have changed the jury’s view of Ochoa. Rather, it
seems to have not been a significant fact.
Next, Ochoa complains that counsel ignored “red flags”
such as Ochoa being influenced by his older siblings’ gang
membership and joining the gang in their footsteps, as well
as his father’s heavy drinking. First, it is unclear whether
either one of those could fairly be characterized as “red
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OCHOA V. DAVIS
flags.” An argument about the older siblings’ bad influence
is not supported by the record. Further, while Eduardo Sr.’s
drinking was unfortunate, Duvall’s investigation concluded
that it had minimal—if any—impact on the children.
More importantly, it was a reasonable strategic choice
for counsel not to present the evidence of Ochoa’s father’s
drinking and his siblings’ gang affiliations. As the district
court correctly found, Ochoa’s counsel strategically chose to
present the “family sympathy” defense at the penalty phase.
This was a reasonable decision. Many witnesses discussed
how loving, hardworking, and giving the Ochoa parents
were. It was both their strength and weakness because they
tried very hard for their children, but in the process left them
without attention. While an extended family may have
stepped in to help and provide supervision if they were still
in Mexico, all that the children had in South Central were
gangs. Evidence of Ochoa’s father’s drinking and his
siblings’ gang affiliations, while not of material mitigating
weight, could have undermined this “family sympathy”
defense. See Livaditis v. Davis, 933 F.3d 1036, 1048 (9th
Cir. 2019) (explaining that counsel’s decision to plead for
mercy on behalf of Livaditis’s family rather than delve into
his mother’s abuse of him was reasonable given the
closeness of the family and the fact that emphasizing the
mother’s abuse “would have been inconsistent with
portraying her as a sympathetic witness and would therefore
have limited the efficacy of a family sympathy approach”);
see also Ochoa, 16 F.4th at 1335 (holding that it was not
unreasonable for the California Supreme Court to conclude
that defense counsel’s decision to present “humanizing
portrayals of Ochoa by his family” at the penalty phase
instead of “evidence regarding Ochoa’s dysfunctional
upbringing and mental health evaluations” was reasonable).
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Further, counsel was not ineffective for failing to
uncover the remainder of the mitigation evidence now
identified by Ochoa. With respect to neglect by the
babysitter in the first two years of Ochoa’s life, counsel’s
failure to discover this information did not stem from any
failure to ask sufficiently probing questions, but from the
family either not remembering or not attaching significance
to the event.
Ochoa also claims that counsel sought and received
funding to go to Mexico but did not go for reasons
unexplained in the record.
Ochoa contends it was
unreasonable for counsel to not interview family members
in Mexico who could have apprised them of the Ochoa
family’s dysfunctionality. But it was reasonable for counsel
not to interview the family in Mexico. None of the
interviews conducted by Duvall showed any significant
family dysfunction. And because the family left Mexico
when Ochoa was two or three years old, it was reasonable
for counsel to not consider the family in Mexico as an
important source of mitigation material absent indications to
the contrary.
The record supports this conclusion, as a review of the
declarations that Ochoa submitted from the relatives in
Mexico shows that they did not have a lot of insight into
family dynamics, and any dysfunction they discussed was in
conclusory terms. Moreover, this type of information was
cumulative to what counsel already knew. It was also
conclusory and innocuous and therefore would not have
changed the jury’s view of Ochoa. Ochoa appears to argue
that despite what trial counsel found, they simply should
have found more. But counsel need not undertake
exhaustive witness investigation. The question is not “what
is prudent or appropriate, but only what is constitutionally
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OCHOA V. DAVIS
compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987)
(cleaned up). And the Constitution does not compel counsel
“to mount an all-out investigation into petitioner’s
background in search of mitigating circumstances” if, as
here, the decision not to do so “was supported by reasonable
professional judgment.” Id.
Ochoa also contends that counsel should have presented
evidence of his neuropsychological deficits. Ochoa relies on
declarations from Dr. Pérez-Arce, who diagnosed Ochoa
with a brain impairment, as well Drs. Kaser-Boyd and
Gomez, who diagnosed him as suffering from symptoms
consistent with PTSD. According to Pérez-Arce, Ochoa’s
visual problems, which counsel was aware of, indicated the
need to further test for neurological impairments. Finally,
Ochoa claims that counsel did not properly assist
Dr. Maloney in forming an accurate opinion of Ochoa.
Specifically, counsel knew that Ochoa had poor coordination
and could not complete his work at dental technology school,
yet they “did not insist that when Ochoa was examined by
his mental health expert, that he be examined uncuffed, so as
to determine whether Ochoa had any visual-spatial memory
impairments.”
As noted above, counsel hired Dr. Maloney to assist in
preparing the mitigation case. Dr. Maloney interviewed and
evaluated Ochoa and administered several psychological
and neuropsychological tests. Dr. Maloney was not able to
perform some of the tests because Ochoa was handcuffed.
Dr. Maloney testified at trial that he knew that Ochoa
suffered a head injury at age eighteen when he was beaten
with a baseball bat. Dr. Maloney conducted specific tests,
such as the Bender Gestalt Test, and the Symbol Digit
Modalities Test, because he “wanted to see if there was any
kind of deficit as a result of [the beating].” Ochoa “did better
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than average on all of those.” Dr. Maloney concluded,
“there really wasn’t any suggestion of that kind of deficit.”
Dr. Maloney opined that there was no indication of
psychosis or schizophrenia, Ochoa was somewhat insecure,
not grossly disturbed, and he knew right from wrong.
There is no indication that counsel was deficient in
relying on Dr. Maloney’s opinion. According to Dr. KaserBoyd, the fact that Ochoa was handcuffed should not have
precluded a complete examination because “psychologists
routinely request that the handcuffs be removed for
psychological testing, or changed to leg restraints.” But
Dr. Kaser-Boyd did not account for the fact that Ochoa was
a death row prisoner housed in a “high powered module”
because he was fighting in jail, had possessed a shank and a
makeshift handcuff key, and was thus considered an escape
risk. She also did not know whether Dr. Maloney made any
unsuccessful request for the handcuffs to be removed.
Without more information, Ochoa’s claim that Dr. Maloney
was deficient in testing Ochoa is speculative.
Furthermore, counsel cannot be ineffective for not
supervising under what conditions a qualified, experienced
expert does his testing and what testing the expert orders. It
is not counsel’s obligation to challenge the expert’s decision
or find a different expert. See Payton v. Cullen, 658 F.3d
890, 896 (9th Cir. 2011) (“Having retained qualified experts,
it was not objectively unreasonable for [trial counsel] not to
seek others.”); Earp v. Cullen, 623 F.3d 1065, 1077 (9th Cir.
2010) (noting that there is “no constitutional guarantee of
effective assistance of experts”).
Finally, because Drs. Pérez-Arce, Kaser-Boyd, and
Gomez conducted their analyses eleven years after the
murders, their diagnoses carry less weight.
See
Runningeagle v. Ryan, 825 F.3d 970, 988 (9th Cir. 2016)
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OCHOA V. DAVIS
(discounting a diagnosis produced more than twenty years
after the crimes were committed). In addition, they are
based, in part, on two assaults when Ochoa was an
adolescent. One of the assaults was self-reported by Ochoa
eleven years after the crime and Ochoa has not described any
injuries from it or that he sought medical attention.
Ochoa also argues that counsel should have presented a
rebuttal of the prosecution’s gang expert’s testimony about
Ochoa’s tattoos. Because counsel hired Dr. Vigil as a gang
expert for the penalty phase but did not present him, Ochoa
argues the “only inference” to be drawn is that Dr. Vigil did
not meet expectations and that a new expert should have
been retained. That is speculative. Dr. Vigil had the
requisite experience, met with Ochoa, reviewed documents,
and consulted with counsel. There is nothing in the record
that would suggest he was incompetent. Absent evidence to
the contrary, the presumption is that counsel made a strategic
choice not to call Dr. Vigil as a witness. See Strickland,
466 U.S. at 689.
As a point of comparison, Ochoa presents the expert
hired by habeas counsel, Father Boyle. But Father Boyle’s
declaration about the significance of tattoos on Ochoa’s
body appears to be cumulative to the testimony presented by
Dr. Maloney. Specifically, Dr. Maloney testified that the
“187” tattoo could indicate lack of remorse, but it could also
be used to signal to other gang members “how tough” Ochoa
was and where he stood in a pecking order in jail. With
respect to Father Boyle’s attack on Detective Berchem’s
expertise, the jury heard that Detective Berchem’s expertise
was acquired through investigating the gangs’ criminal
activities. That a police officer would not have knowledge
of all aspects of criminals’ lives is within jurors’ common
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57
experience and does not need to be explained by a rebuttal
expert.
Ochoa relies on Hinton v. Alabama, 571 U.S. 263 (2014),
for the proposition that deficient performance can be found
when defense counsel fails to request additional funds to
replace an inadequate expert. In Hinton, the Supreme Court
determined that trial counsel was deficient because he failed
to research the expert-funding statute, and he then presented
an expert at trial whom he knew to be unqualified based on
his mistaken belief that he was not entitled to more funds.
Id. at 273. The Court characterized this deficiency as a
failure to “make reasonable investigations,” and it
emphasized that the deficient performance it found in the
case “does not consist of the hiring of an expert who, though
qualified, was not qualified enough.” Id. at 274–75. The
Court specifically stressed that “[w]e do not today launch
federal courts into examination of the relative qualifications
of experts hired and experts that might have been hired.” Id.
at 275. Thus, Hinton does not help Ochoa, as he invites the
very examination Hinton expressly says that federal courts
may not conduct.
Finally, Ochoa contends that counsel failed to
investigate his father’s incestual relationship with Ochoa’s
older sister, Gloria, and his father begetting Gloria’s five
children. Ochoa relies on declarations of three witnesses
who knew the family explaining why they suspected the
relationship. But none of these declarations constitute
reliable evidence of an incestuous relationship. “[C]ounsel
is not deficient for failing to find mitigating evidence if, after
a reasonable investigation, nothing has put the counsel on
notice of the existence of that evidence.” Babbitt v.
Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (cleaned up).
Counsel can hardly be faulted when Ochoa, his family,
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OCHOA V. DAVIS
family friends, and neighbors all failed to relate the
information about incest when asked about family dynamics.
Furthermore, if defense counsel put this evidence on, there
are no assurances that the jury would have drawn a
conclusion that there was an incestuous relationship, and it
is even less certain that they would have found this
information mitigating. There was a real danger that it
would have turned into a mini trial on who was the father of
Gloria’s children, which certainly could have undermined
Ochoa’s “family sympathy” defense.
For all these reasons, Ochoa fails to overcome the
presumption that his counsel’s conduct fell within the wide
range of reasonable professional assistance. See Strickland,
466 U.S. at 687.
iv. Prejudice to Ochoa
Ochoa likewise fails to establish prejudice with respect
to counsel’s alleged deficiencies. According to Ochoa, even
though counsel failed to present powerful mitigating
evidence, the jury still struggled to reach a decision: during
deliberations, the jury sent out a note indicating that while
they had reached a verdict as to the Castro murder, they were
at an impasse as to the Navarette murder and “most [jurors
were] not flexible either way.” After the note, the jury did
not ask for any readback or clarifications and did not pose
any questions; they reached a verdict of death on the
remaining count in the afternoon the following day. Because
of this, Ochoa argues that the likelihood of a different result
is substantial.
Ochoa overstates the significance of the jury’s note.
While longer jury deliberations may suggest a difficult case
and thus weigh against a finding of harmless error, see
United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th
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59
Cir. 2001) (en banc), at the time the jury sent the note, they
had already reached agreement to impose a death sentence
with respect to the Castro murder.
Ochoa also relies on Sears v. Upton, 561 U.S. 945
(2010), Porter v. McCollum, 558 U.S. 30 (2009), Rompilla
v. Beard, 545 U.S. 374 (2005), Wiggins, and Williams, to
support his claim, but these cases are inapposite. The
additional evidence submitted by Ochoa was not so different
in quality or kind that it would have shifted the jury’s view
of Ochoa as a person or his responsibility for the killings.
The jury knew that even though his family loved him, Ochoa
had been neglected growing up; the family worked hard but
remained poor; he and his siblings were bullied for their
ethnicity by neighborhood children; their home was
burglarized on several occasions; one of the sisters was
severely beaten; Ochoa was a good father; and he had a lowend IQ. The evidence gathered by habeas counsel is largely
cumulative of the evidence presented at trial, and the
remainder fails to dramatically change the way the jury
would have viewed Ochoa.
At the same time, the totality of the available mitigation
evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding—must be reweighed
against the aggravating evidence. Williams, 529 U.S.
at 397–98. Ochoa participated in the killing of two people
within the span of three weeks. The murder victims were
not gang members and were very sympathetic. One was a
teenager, murdered in front of his brother who was also
endangered in the attack. The other was a Marine veteran
who had a teenage son. Within hours of committing the
second murder, Ochoa participated in another robbery,
where he punched, kicked, and threatened to shoot the victim
if he did not give up his car. That robbery could have ended
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as dreadfully as the earlier one, had the victim tried to resist
as Castro did. Even though Ochoa was only twenty-one
years old at the time of the offenses, he already had prior
adult criminal history, a long juvenile record, and he also
committed misconduct in prison while waiting for trial.
Ochoa fails to establish a “reasonable probability that . . .the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Because it was neither an unreasonable factual
determination nor contrary to or an unreasonable application
of clearly established Supreme Court precedent for the
California Supreme Court to have determined that Ochoa’s
counsel were not ineffective during the penalty phase, we
affirm the district court. See 28 U.S.C. § 2254(d)(1), (2).
2. Second Uncertified Claim: Atkins Violation
Ochoa asserts that his death sentence violates the Eighth
Amendment because he “suffered mental impairments that
are as severe as mental retardation from the date of his arrest
to the present[,]” and he is therefore ineligible for execution
under Atkins v. Virginia, 536 U.S. 304 (2002).
Ochoa raised this claim in his second state habeas
petition. The California Supreme Court summarily denied
the claim “on the merits.” 4
The district court also denied the claim on the merits
under AEDPA, determining that the California Supreme
Court could have reasonably concluded that Ochoa “failed
to demonstrate the onset of intellectual functioning and
4
See Section IV(A)(2)(a) supra.
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adaptive deficits while still a minor, or during his
developmental period.”
Because the California Supreme Court’s conclusion was
neither an unreasonable factual determination nor contrary
to or an unreasonable application of clearly established
Supreme Court precedent, we affirm the district court. See
28 U.S.C. § 2254(d)(1), (2).
a. Applicable Law
The Supreme Court in Atkins explained that “the medical
community defines intellectual disability according to three
criteria”:
(1) “significantly
subaverage
intellectual
functioning”; (2) “deficits in adaptive functioning (the
inability to learn basic skills and adjust behavior to changing
circumstances)”; and (3) “onset of these deficits during the
developmental period.” Hall v. Florida, 572 U.S. 701, 710
(2014) (citing Atkins, 536 U.S. at 308 n.3). Subsequently, in
Hall, the Supreme Court held that it is unconstitutional to
foreclose “all further exploration of intellectual disability”
on the sole ground that the petitioner has an IQ above 70. Id.
at 704.
With respect to significantly subaverage intellectual
functioning, IQ test scores may be “of considerable
significance.” Id. at 723. Because “[e]ach IQ test has a
‘standard error of measurement’” of plus or minus five
points, however, “IQ test scores should be read not as a
single fixed number but as a range.” Id. at 712–13. When a
defendant scores between 70 and 75 on an IQ test, he or she
“must be able to present additional evidence of intellectual
disability, including testimony regarding adaptive deficits.”
Id. at 723.
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Subsequently, in Moore v. Texas (“Moore I”), 137 S. Ct.
1039 (2017), the Court held that states do not have unfettered
discretion to reject medical community standards in defining
what constitutes intellectual disability. Id. at 1048–49. In
Shoop v. Hill, 139 S. Ct. 504 (2019), the Court “consider[ed]
what was clearly established regarding the execution of the
intellectually disabled . . . .” Id. at 506–07. The Court
observed that Atkins “left ‘to the [s]tates the task of
developing appropriate ways to enforce the constitutional
restriction’” on executing intellectually disabled persons. Id.
at 507 (quoting Atkins, 536 U.S. at 317). In Moore v. Texas
(“Moore II”), 139 S. Ct. 666 (2019), the Court reaffirmed its
holding in Moore I that the petitioner, with an average IQ
score of 70.66, “had demonstrated sufficient intellectualfunctioning deficits to require consideration of the second
criterion—adaptive functioning.” Id. at 668 (citing Moore I,
137 S. Ct. at 1048–50).
California Penal Code § 1376, which governs Atkins
claims for the state’s prisoners, uses the same “intellectual
disability” term adopted by the Supreme Court in Hall. See
CAL. PENAL CODE § 1376(a). At the time when the
California Supreme Court denied Ochoa’s Atkins claim, that
statute defined intellectual disability as “the condition of
significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and
manifested before the age of [eighteen].” CAL. PENAL CODE
§ 1376(a) (2010). Under California law, “[t]o state a prima
facie claim for relief, the petition must contain ‘a declaration
by a qualified expert stating his or her opinion that the
petitioner is mentally retarded” and “the declaration must
explain the basis for the assessment of mental retardation in
light of the statutory standard.” In re Hawthorne, 35 Cal.
4th 40, 47 (2005).
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OCHOA V. DAVIS
63
b. Analysis
At age fifteen, Ochoa had a Wide Range Achievement
Test score of 78. Prior to trial, Dr. Maloney administered
the Wechsler Adult Intelligence Scales Test (“WAIS-III”). 5
Ochoa, then twenty-four years old, scored a verbal IQ of 74,
though if he were given the same test in Spanish, he would
have scored several points higher, “in the 80 range.”
Dr. Maloney explained that although Ochoa was
“functioning below average,” his score was “above the
cutoff for mental retardation” and that he was “not mentally
retarded.” 6 At age thirty-five, on WAIS-III, Ochoa’s verbal
IQ was 79. He had made no gains in his arithmetic skills,
since scoring at the fifth-grade level at the time of the trial.
Ochoa relies on the declarations of Drs. Gomez, PérezArce, and Kaser-Boyd to support his claim. As discussed
above, Dr. Pérez-Arce determined that Ochoa suffers from
significant impairment in the right part of the brain, that “is
likely to have been present from birth and probably
exacerbated by two attacks” that Ochoa suffered when he
was twelve and eighteen years old. Additionally, Dr. KaserBoyd diagnosed Ochoa as suffering from PTSD and
Cognitive Disorder Not Otherwise Specified. Dr. Gomez
summarized Ochoa’s life history and opined that his obvious
WAIS-III, the standard instrument for assessing intellectual
functioning, measures an intelligence range from 45 to 155, with an IQ
“between 70 and 75 or lower . . . typically considered the cutoff IQ score
for the intellectual function prong of the mental retardation definition.”
Atkins, 536 U.S. at 309 n.5.
5
The term “intellectual disability” has now replaced the phrase
“mentally retarded.” See, e.g., Brumfield v. Cain, 576 U.S. 305, 308 n.1
(2015).
6
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OCHOA V. DAVIS
mental impairments were recognized by his peers and his
teachers when he was quite young.
Ochoa contends he has subaverage intellectual
functioning and deficits in adaptive functioning that
occurred before he was eighteen years old. If we conclude
that the state court’s denial of his Atkins claim was
reasonable, he asks that the court grant him a stay to exhaust
a claim that he is categorically excluded from the death
penalty under the new substantive rule announced in Moore
II.
Ochoa’s claim fails for several reasons. First, as the
district court noted, none of Ochoa’s experts diagnosed him
with an intellectual disability. On appeal, Ochoa contends
that the evidence he presented to the state court regarding his
disability “substantially complied” with the California
requirements of § 1376(a) and Hawthorne. But Ochoa does
not explain how a different diagnosis equals substantial
compliance and does not present any authority that
substantial compliance is sufficient.
During Ochoa’s habeas proceedings in the California
Supreme Court, the State filed a supplement to the informal
response, arguing that Ochoa’s Atkins claim failed under
Hawthorne because he had not submitted a declaration from
an expert that he was intellectually disabled. Ochoa
conceded that he had not submitted such a declaration. He
argued, however, that his experts’ declarations showed that
he “suffers from cognitive impairments and mental illness
that are equivalent to mental retardation.”
Ochoa fails to cite any law, let alone clearly established
Supreme Court precedent, supporting his contention that
Atkins bars the execution of individuals with an impairment
“equivalent” to intellectual disability. In fact, several other
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OCHOA V. DAVIS
65
courts that have considered this “equivalency” argument
have rejected it. See, e.g., In re Soliz, 938 F.3d 200, 203 (5th
Cir. 2019) (explaining that the defendant failed to show that
his fetal alcohol spectrum disorder is medically equated to
intellectual disability as defined in Atkins); Murphy v. Ohio,
551 F.3d 485, 510 (6th Cir. 2009) (“[A]lthough it is evident
that Murphy has severe psychological problems and certain
mental deficiencies, these characteristics alone do not make
him ‘mentally retarded’ such that his execution would
violate Atkins.”).
Second, the range of Ochoa’s IQ scores generally falls
above the range that clinical sources consider as satisfying
Atkins prong one: an IQ range of approximately 65 to 75.
Due to the standard error of measurement, the lowest of his
scores, 74, could have qualified as falling into the
intellectually disabled range. But Dr. Maloney, who
administered that test, opined that the score was “probably a
low estimate of” Ochoa’s ability because “in some areas,
nonverbal areas, he perform[ed] very much better than that.”
He opined that if the test was given in Ochoa’s native
Spanish, he would have scored “in the 80 range.”
Considering the IQ score of 74 alone, without
Dr. Maloney’s explanation, Ochoa might still be classified
as intellectually disabled, depending upon the level of
deficits at prong two. See Hall, 572 U.S. at 720 (“Treating
the IQ with some flexibility permits inclusion in the Mental
Retardation category of people with IQs somewhat higher
than 70 who exhibit significant deficits in adaptive
behavior.” (cleaned up)). Although the evidence on Ochoa’s
adaptive functioning is somewhat mixed, it does not appear
that Ochoa had significant deficits in that area. Ochoa did
well in school until seventh grade when he became involved
in a gang and his grades dropped. Ochoa, 26 Cal. 4th at 421–
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OCHOA V. DAVIS
22. Ochoa was never held back in school. He did not
graduate from high school, but did graduate from a dental
technology school at age seventeen. During his six-month
stay in the juvenile camp at the age of fifteen, Ochoa
“performed above average in school and in the camp
program.” Dr. Pérez-Arce noted that Ochoa “has shown
significant gains in his fund of general knowledge, the
breadth of his vocabulary, and spelling skills” since his
incarceration on death row. These fluctuations in Ochoa’s
academic performance in different settings are inconsistent
with intellectual disability. See Heller v. Doe, 509 U.S. 312,
323 (1993) (“Mental retardation is a permanent, relatively
static condition . . . .”).
Likewise, Ochoa has not shown significant deficits in
adaptive functioning with respect to his social relationships.
Ochoa lived with his girlfriend and cared for their daughter
for a year. He maintained the relationship with the daughter
and her mother after the separation. He attempted to get a
job as a dental technician after school, but his family and
neighbors believed he was unsuccessful because he insisted
on dressing as a gangster. The Silva family, neighbors of the
Ochoas, discussed Ochoa being “very slow,” “very quiet,
more than normal,” a follower, and having poor hygiene.
But their perception of Ochoa was not corroborated by other
neighbors.
Bonzie Williams, the Ochoas’ next-door
neighbor of twenty-five years, discussed Ochoa’s
participation in her club where neighborhood kids got
together once a week to talk, sing, and play. Ochoa
participated from eight years old until twelve or thirteen. In
Williams’ opinion, Ochoa was not “easily influenced by his
peers”; on the contrary, he “seemed to be somewhat of a
leader in the neighborhood.” Cf. Atkins, 536 U.S. at 318
(“[I]n group settings [intellectually disabled people] are
followers rather than leaders.”).
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67
Other witnesses did not see anything wrong either.
Ochoa’s first- and second-grade teacher did not recall that
Ochoa had any learning difficulties that indicated a need for
special education. Ochoa’s aunt from Mexico visited the
family when Ochoa was eight years old and noted that he
“was a normal eight-year[-]old boy.” Eduardo Sr. told
mitigation investigator Duvall that until high school and his
involvement in the gang, Ochoa “did well in school and was
considered by his teachers and the family to be quite bright.”
Moreover, the trial judge, Ochoa’s counsel, and Ochoa’s
accomplices all saw Ochoa as a leader in connection with his
crimes. His counsel wrote a letter to Dr. Maloney, noting
with respect to the Navarette murder that Ochoa denied
knowing about the presence of the gun in the car, but
“[s]tatements by his cohorts definitely dispute this. As a
matter of fact, they indicate he was the leader, and since he
was the oldest of the group, this is probably true.” The trial
court characterized the Castro murder as the result of a
“planned affair.” Ochoa, 26 Cal. 4th at 460. The court
believed Ochoa was the “moving force” behind the
Navarette murder, “the one who caused this entire incident
to take place.” Id. The court also found that several hours
after murdering Castro, Ochoa “led an attack on” Freddie
Garcia. Id. When arrested, Ochoa gave a false name to
police and told them he did not know about the gun in his
car, which shows a degree of adaptive skill.
Next, Ochoa’s evidence does not show that he meets the
last Atkins prong: onset before the age of eighteen. Dr.
Kaser-Boyd diagnosed Ochoa with brain damage “likely to
have been present from birth and probably exacerbated by
two brutal attacks with bats that Mr. Ochoa suffered in early
adulthood.” The first attack was when Ochoa was twelve
years old. He did not tell anyone and “was more guarded
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68
OCHOA V. DAVIS
after that.” Dr. Kaser-Boyd noted that he “had the symptoms
of” PTSD afterwards. The next assault Ochoa alleges and
that is supported by documentation from the hospital
occurred after Ochoa turned eighteen. In addition, when
Ochoa was twenty-one years old, three months before the
crimes at issue, he was struck by a car and thrown fifteen
feet. He struck his head and lost consciousness. Finally,
while waiting for trial in this case, he was involved in a fight
in jail. Dr. Kaser-Boyd opined that “the head injuries
[Ochoa] suffered likely changed the cognitive ability that is
necessary for judgment and impulse and emotional control.”
Neither Ochoa nor Dr. Kaser-Boyd, however, alleged any
head injuries from the assault at age twelve, and all the other
assaults took place after Ochoa turned eighteen. In addition,
Dr. Kaser-Boyd’s diagnosis is contradicted by
Dr. Maloney’s testimony.
Ochoa faces an additional hurdle: namely, the
requirement that he must show that the California Supreme
Court’s decision fails to pass muster under AEDPA. Ochoa
relies on Hall and Moore II, but those decisions came after
the California Supreme Court’s 2010 denial of his Atkins
claim. So he cannot rely on those decisions. See Ybarra v.
Filson, 869 F. 3d 1016, 1024–25 (9th Cir. 2017) (noting that
Moore I and Hall “cannot show that the [prior state court
decision] applied Atkins in a way that ‘was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement’” (quoting Richter, 562 U.S.
at 103)). Ochoa may rely on Atkins itself, but Atkins “‘did
not provide definitive procedural or substantive guides’ to
determine who qualifies as intellectually disabled.” See id.
at 1024 (quoting Bobby v. Bies, 556 U.S. 825, 831 (2009)).
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69
Moreover, at the time when the California Supreme
Court denied Ochoa’s Atkins claim, California law defined
“intellectual disability” consistently with Atkins as “the
condition of significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive
behavior and manifested before the age of [eighteen].” CAL.
PENAL CODE § 1376(a) (2010). Indeed, California law at the
time was consistent even with the Supreme Court’s
subsequent decisions in Hall and Moore I and II. First,
consistent with Hall, California’s definition of intellectual
disability did not “include a numerical IQ score.” See
Hawthorne, 35 Cal. 4th at 48; see also Hall, 572 U.S. at 702
(noting that “many [s]tates have . . . passed legislation
allowing defendants to present additional intellectual
disability evidence when their IQ score is above 70”).
Second, consistent with Moore I and II, California law
required a hearing “[u]pon the submission of a declaration
by a qualified expert stating his or her opinion that the
defendant is mentally retarded.” CAL. PENAL CODE
§ 1376(b)(1) (2010). Accordingly, any stay of the appeal, so
that Ochoa can exhaust a claim under Moore II, would be
futile. 7
Because it was neither an unreasonable factual
determination nor contrary to or an unreasonable application
of clearly established Supreme Court precedent for the
California Supreme Court to have determined that Ochoa
failed to demonstrate the onset of intellectual functioning
and adaptive deficits as a minor, we affirm the district court.
See 28 U.S.C. § 2254(d)(1), (2).
In Moore II the Court simply reaffirmed its relevant holding from
Moore I. 139 S. Ct. at 668.
7
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OCHOA V. DAVIS
V. CONCLUSION
We expand the certificate of appealability as to Ochoa’s
uncertified claims, but we affirm the district court’s denial
of Ochoa’s habeas petition.
AFFIRMED. 8
The outstanding motions, Dkt. Nos. 58, 59, and 60, are
GRANTED.
8
Appendix A - 070
APPENDIX B
Case 2:02-cv-07774-RSWL Document 183 Filed 08/13/18 Page 1 of 128 Page ID #:28919
1
2
cc: Director of Courtroom Operations, Chief Deputy of Judical Services, Manager Legal Services Unit,
Attorney Supervisor of the Legal Services Unit, Clerk of Court.
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12
13
14
15
16
SERGIO OCHOA,
Petitioner,
v.
RONALD DAVIS, Warden of
California State Prison at San
Quentin,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
CASE NO. CV 02-7774 RSWL
DEATH PENALTY CASE
ORDER DENYING FIRST
AMENDED PETITION FOR
WRIT OF HABEAS CORPUS
(REDACTED)
17
18
NOTICE REGARDING REDACTION
19
On April 12, 2011, the Court entered a protective order pursuant to Bittaker
20
v. Woodford, 331 F.3d 715 (9th Cir. 2003). (Docket No. 90.) In the order below,
21
the Court has redacted allegations filed under seal and evidence from exhibits and
22
state court records filed and lodged under seal. As set forth in the protective order,
23
“modification or vacation of this [protective] order shall only be made upon notice
24
to and an opportunity to be heard from both parties. Respondent or any other
25
person may apply to have the sealing order lifted following decision in this case
26
and completion of all appeals thereof.” (Id. at 6.)
27
28
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1
2
BACKGROUND
Petitioner Sergio Ochoa was convicted in 1992 of the first degree murders of
3
Pedro Navarette and Jose Castro and one count of attempted second degree
4
robbery. The jury found true a multiple murder special circumstance allegation
5
and a robbery murder special circumstance allegation. It sentenced Petitioner to
6
death. The California Supreme Court affirmed Petitioner’s convictions and
7
sentence on direct appeal. People v. Ochoa, 26 Cal. 4th 398 (2001), abrogated in
8
part as recognized by People v. Prieto, 30 Cal. 4th 226, 263 n.14 (2003).
9
Petitioner filed his first state habeas petition on February 20, 2001. (Lodg.
10
C1.) The California Supreme Court summarily denied it on August 21, 2002.
11
(Lodg. C6.) He filed his second state habeas petition on December 15, 2003.
12
(Lodg. D1.) The California Supreme Court summarily denied that petition on
13
December 21, 2010. (Lodg. D7.)
14
Petitioner filed a habeas petition in this Court on September 19, 2003.
15
(Docket No. 12.) He filed the operative First Amended Petition for Writ of Habeas
16
Corpus (“Pet.”) on April 26, 2011. (Docket Nos. 93 (Redacted), 102 (Sealed).)
17
On November 28, 2011, Respondent filed a Motion to Dismiss Identified
18
Grounds of First Amended Petition for Writ of Habeas Corpus. (Docket No. 116.)
19
The Court denied the motion in part and granted it in part. (Docket No. 134.)
20
Petitioner filed a motion for reconsideration, which the Court granted in part and
21
denied in part. (Docket Nos. 136, 140.) The Court dismissed Claims 2; 3; 6;
22
10(b)(2), (3), (4), (5) as to Oscar Montes, and (6) as to Mr. Montes and Mauricio
23
Soriano; 14; 15; 18(b)(1), (4), and (5); 20 (a)-(c), (e)-(h), (j)-(m), (p), (q), (s), (t),
24
(v)-(x), (bb), (cc); 25; 27; 32; and 40 as to inadequate review of the first state
25
habeas petition. (See Docket Nos. 134, 140.)
26
The parties completed merits briefing. (Docket Nos. 153 (Petitioner’s
27
Merits Brief (Redacted)), 155 (Petitioner’s Merits Brief (Sealed) (“Petr.’s Br.”)),
28
169 (Merits Opposition Brief (Redacted)), 173 (Merits Opposition Brief (Sealed)
2
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1
(“Opp.”)), 182 (Merits Reply Brief (“Reply”)).) For the reasons set forth below,
2
the Court denies the First Amended Petition.
3
Because the facts of the case are set forth in the California Supreme Court’s
4
decision on direct appeal, Ochoa, 26 Cal. 4th 398, they are repeated here only to
5
the extent necessary for analysis of the claims.
6
7
DISCUSSION
I.
8
9
Application of 28 U.S.C. § 2254(d)
28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), provides:
10
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
11
12
13
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
14
15
16
18
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
19
28 U.S.C. § 2254(d). The Supreme Court held in Cullen v. Pinholster that when
20
determining whether a petitioner has satisfied § 2254(d), a court may only consider
21
evidence in the state court record. 563 U.S. 170, 181, 185 n.7 (2011). The Court
22
held that “review under § 2254(d)(1) is limited to the record that was before the
23
state court that adjudicated the claim on the merits.” Id. at 181. Section
24
2254(d)(2) “includes the language ‘in light of the evidence presented in the State
25
court proceeding,’ . . . [providing] additional clarity . . . on this point.” Id. at 185
26
n.7.
17
27
The Supreme Court explained in Lockyer v. Andrade that a state court
28
decision is “contrary to our clearly established precedent if the state court applies a
3
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1
rule that contradicts the governing law set forth in our cases or if the state court
2
confronts a set of facts that are materially indistinguishable from a decision of th[e]
3
Court and nevertheless arrives at a result different from our precedent.” 538 U.S.
4
63, 73 (2003) (internal quotations omitted). “[U]nder the ‘unreasonable
5
application’ clause, a federal habeas court may grant the writ if the state court
6
identifies the correct governing legal principle from this Court’s decisions but
7
unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75
8
(internal quotation omitted). “The ‘unreasonable application’ clause requires the
9
state court decision to be more than incorrect or erroneous. The state court’s
10
application of clearly established law must be objectively unreasonable.” Id.
11
(internal citation omitted). In addition, “relief is proper only if the federal court
12
has grave doubt about whether a trial error of federal law had substantial and
13
injurious effect or influence in determining the jury’s verdict.” Davis v. Ayala, 135
14
S. Ct. 2187, 2197-98 (2015) (discussing Brecht v. Abrahamson, 507 U.S. 619
15
(1993)).
16
“[A]s to the clause dealing with ‘an unreasonable determination of the
17
facts,’” § 2254(d)(2), “the statement of facts from the last reasoned state court
18
decision is afforded a presumption of correctness that may be rebutted only by
19
clear and convincing evidence.” Cudjo v. Ayers, 698 F.3d 752, 762 (9th Cir. 2012)
20
(internal quotation omitted). Under § 2254(d)(2), “if a petitioner challenges the
21
substance of the state court’s findings,” the court:
22
23
24
25
26
27
must be convinced that an appellate panel, applying the normal
standards of appellate review, could not reasonably conclude that the
finding is supported by the record. Similarly, when the challenge is to
the state court’s procedure, mere doubt as to the adequacy of the state
court’s findings of fact is insufficient; we must be satisfied that any
appellate court to whom the defect [in the state court’s fact-finding
process] is pointed out would be unreasonable in holding that the state
court’s fact-finding process was adequate.
28
4
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1
Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012) (internal quotations
2
omitted; alteration in original).
3
The United States Supreme Court explained in Harrington v. Richter that
4
“[a] state court’s determination that a claim lacks merit precludes federal habeas
5
relief so long as fairminded jurists could disagree on the correctness of the state
6
court’s decision.” 562 U.S. 86, 101 (2011) (internal quotation omitted). Where
7
the state courts have not issued a reasoned decision on a claim, “a habeas court
8
must determine what arguments or theories . . . could have supported . . . the state
9
court’s decision;” the court must not “overlook[] arguments that would otherwise
10
justify the state court’s result . . . .” Id. at 102. Where the most recent state court
11
decision on the merits “does not come accompanied with [its] reasons” but a prior
12
state court decision did so:
13
the federal court should ‘look through’ the unexplained decision to the
last related state-court decision that does provide a relevant rationale.
It should then presume that the unexplained decision adopted the same
reasoning. But the State may rebut the presumption by showing that
the unexplained affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as alternative
grounds for affirmance that were briefed or argued to the state
supreme court or obvious in the record it reviewed.
14
15
16
17
18
19
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
20
II.
21
Legal Standard: Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Petitioner must demonstrate
22
that counsel’s performance was deficient and that the deficient performance
23
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
24
Counsel’s representation is deficient if, “considering all the circumstances,”
25
it “fell below an objective standard of reasonableness” and was unreasonable
26
“under prevailing professional norms.” Id. at 688. “Judicial scrutiny of counsel’s
27
performance must be highly deferential. . . . A fair assessment of attorney
28
performance requires that every effort be made to eliminate the distorting effects of
5
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1
hindsight.” Id. at 689. The Court “must indulge a strong presumption that
2
counsel’s conduct falls within the wide range of professional assistance; that is, the
3
defendant must overcome the presumption that, under the circumstances, the
4
challenged action might be considered sound trial strategy.” Id. (internal quotation
5
omitted).
6
To establish that counsel’s deficient performance prejudiced the defense,
7
Petitioner must show “that there is a reasonable probability that, but for counsel’s
8
unprofessional errors, the result of the proceeding would have been different. A
9
reasonable probability is a probability sufficient to undermine confidence in the
10
outcome.” Id. at 694. “The benchmark for judging any claim of ineffectiveness
11
must be whether counsel’s conduct so undermined the proper functioning of the
12
adversarial process that the trial cannot be relied on as having produced a just
13
result.” Id. at 686.
14
As the Supreme Court emphasized in Richter:
15
Surmounting Strickland’s high bar is never an easy task. . . . Even
under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing
court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with
opposing counsel, and with the judge. It is all too tempting to
second-guess counsel’s assistance after conviction or adverse
sentence. The question is whether an attorney’s representation
amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common custom.
16
17
18
19
20
21
22
23
24
25
26
27
28
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly so. The Strickland
standard is a general one, so the range of reasonable applications is
substantial. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is
6
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1
any reasonable argument that counsel satisfied Strickland’s deferential
standard.
2
3
Richter, 562 U.S. at 105 (internal quotations and citations omitted).
4
III.
Claims 1(B), 1(C)(2), 1(C)(5), 1(C)(6), 1(C)(8), 1(C)(11), 1(C)(16),
5
1(C)(27), 1(C)(34), and 22: Ineffective Assistance of Counsel1
6
A.
Investigation of Petitioner’s Background and Mental Health
1.
7
Allegations of Deficiency
8
In Claims 1(B)(1), (2), and (3), Petitioner alleges that trial counsel was
9
ineffective for failing to investigate and present evidence of Petitioner’s brain
10
damage and traumatic background, and for failing to provide a psychologist or
11
social historian with adequate information about his background. (Pet. at 51-71.)
12
In Claim 22, Petitioner alleges that his sentence lacks the reliability required by the
13
Eighth Amendment because “the jury was not aware of Ochoa’s multiple mental
14
illnesses, the many risk factors in his background, prolonged childhood abuse and
15
neglect, or his organic brain damage, and other mental health problems . . . .” (Id.
16
at 339.) Petitioner raised Claim 1 and Claim 22 in state habeas proceedings. (See
17
id. at 47, 339.)
18
Specifically, Petitioner alleges that effective counsel would have:
19
(1) not relied so heavily on cursory interviews conducted primarily
with immediate members of Ochoa’s family, (2) not relied on
investigators who had limited knowledge of the circumstances facing
Ochoa’s family, social history and other cultural influences, including
the Spanish language and Hispanic culture, and (3) retained
appropriate and competent mental health and gang experts who could
have discussed the effects of the trauma Ochoa suffered on his
emotional and cognitive functioning, as well as the decisions he made
to join the gang and to participate in the acts at issue . . . .
20
21
22
23
24
25
26
27
28
1
Additional claims of ineffective assistance of counsel, related to other claims of error, are
identified and discussed later in this order.
7
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1
(Id. at 63.)2 Petitioner faults trial counsel for giving “their sole mental health
2
expert an inaccurate description that Ochoa was ______________ In a letter . . . ,
3
counsel described Ochoa to Dr. Maloney as not having _____________________
4
________________________________________________” (Petr.’s Br. at 43
5
(quoting Pet. Ex. 123 (Sealed)).)
6
Contrary to Petitioner’s allegations, counsel did not rely on cursory
7
interviews primarily with Petitioner’s immediate family members. Petitioner’s
8
investigator, Sheryl Duvall, M.S., interviewed at least twelve witnesses, including
9
all of Petitioner’s four siblings, his parents, his ex-girlfriend and mother of one of
10
his two children, his former teacher at court-ordered juvenile camp, a principal at
11
the juvenile camp, two long-time neighbors and close family friends, and a next-
12
door neighbor of more than twenty-five years. (See Pet. Exs. 161-173 (Sealed); cf.
13
RT 2488-89.) She prepared extensive interview memoranda for defense counsel
14
that relay thorough interviews along with her impressions of the witnesses’
15
strengths and shortcomings and of Petitioner’s potential motivations in life. Her
16
memoranda show that she used a translator when necessary, and she used the same
17
translator for the three interviews that needed translation. (See Pet. Ex. 166 at
18
3578 (Sealed); Pet. Ex. 169 at 3590 (Sealed); Pet. Ex. 171 at 3597 (Sealed).)
Further, counsel retained Michael Maloney, Ph.D., a clinical psychologist
19
20
and, at the time of trial if not before, Clinical Professor of Psychiatry at the
21
University of Southern California School of Medicine and a Diplomate in Forensic
22
Psychology. (RT 2566-67.) In a letter to Dr. Maloney in preparation for his work
23
on Petitioner’s case, counsel recorded Dr. Maloney’s __________________
24
____________________________. (Pet. Ex. 123 at 2816 (Sealed).) Counsel
25
enclosed _______________________________________________________
26
_____________________. (Id.) He also told Dr. Maloney that he had ___
27
28
2
Petitioner’s allegations regarding defense counsel’s retention of a gang expert are addressed
below in Claim 1(B)(4).
8
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1
___________________________________________________ and asked Dr.
2
Maloney to _______________________________________________. (Id.) He
3
added that he would _______________________________________________.
4
(Id. at 2819.)
5
Counsel said that Petitioner was __________________________________
6
_______________________________________________________________
7
________________________________________________________. (Id. at
8
2818.) He told Dr. Maloney that Petitioner’s:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
____________________________________________________
________________________________________________________
_____________________________________________________
____________________________________________________
___________________________________________________
_____________________________________________________
______________________________________________________
__________________________________
___________________________________________________
_______________________________________________________
________________________________________________________
____________________________
___________________________________________________
__________
________________________________________________________
__________________________________________________
_______________________________
(Id. at 2818-20.)
The California Supreme Court may have reasoned that counsel’s statement
26
that Petitioner ____________________________________________ was
27
sufficiently supported by counsel’s reasonable investigation that it is not itself
28
evidence of deficiency. The California Supreme Court may have reasonably
9
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1
determined that defense counsel provided Dr. Maloney with adequate information
2
and reasonably relied on Dr. Maloney’s evaluation of Petitioner. See Crittenden v.
3
Ayers, 624 F.3d 943, 966 (9th Cir. 2010) (“That none of [petitioner’s mental health
4
experts] happened to unearth the particular line of mitigating evidence Crittenden
5
now presents does not compel the conclusion that the investigation was deficient.
6
Attorneys are entitled to rely on the opinions of properly selected, adequately
7
informed and well-qualified experts.”); Harris v. Vasquez, 949 F.2d 1497, 1525
8
(9th Cir. 1990) (“It is certainly within the wide range of professionally competent
9
assistance for an attorney to rely on properly selected experts,” including mental
10
health experts (internal quotation omitted)).
11
12
2.
Reasonableness of Counsel’s Investigation and Strategy
More broadly, the California Supreme Court may have determined that
13
defense counsel were not constitutionally deficient in their penalty phase
14
investigation and presentation. The California Supreme Court may have
15
reasonably determined that Petitioner “failed to rebut the presumption of
16
competence mandated by Strickland – here, that counsel had adequately performed
17
at the penalty phase of trial.” Pinholster, 563 U.S. at 194; Cox v. Ayers, 613 F.3d
18
883, 896 (9th Cir. 2010) (“[A]s long as a reasonable investigation was conducted, a
19
reviewing court should defer to counsel’s strategic choices.”). The record belies
20
Petitioner’s allegation that defense counsel “apparently ignored” evidence of his
21
“grossly ineffective parenting . . . .” (Petr.’s Br. at 38.) To the contrary, it was part
22
of defense counsel’s express presentation to the jury. Counsel argued that
23
Petitioner’s parents were inadequate yet sympathetic, and Petitioner’s life should
24
be spared for their sake.
25
The California Supreme Court may have reasonably determined that
26
counsel’s strategy was to evoke sympathy for Petitioner’s family members: his
27
sister and her children, his father, and his daughter. Cf. Ochoa, 26 Cal. 4th at 422
28
(“The mother of defendant’s daughter, Claudia[, testified that] . . . [d]efendant
10
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1
loved and played with Claudia. . . . Defendant has maintained close ties with his
2
sister’s children. They visit him in prison and get excited when he telephones.”).
3
Counsel made the case that although Petitioner’s family struggled, and his parents
4
failed to provide guidance and discipline, the family was worth keeping intact and
5
Petitioner’s life, as a member of that family, was worth sparing. Cf. Pinholster,
6
563 U.S. at 193 (“Given these impediments [petitioner’s revelling in his crimes and
7
his psychiatric expert’s finding no mental disorder or defect other than
8
psychopathic personality traits], it would have been a reasonable penalty-phase
9
strategy to focus on evoking sympathy for [petitioner’s] mother.”); Cox, 613 F.3d
10
at 897 (holding counsel adequately investigated mitigating evidence and
11
reasonably decided not to present “all available evidence about [petitioner’s
12
mother’s] abusive conduct and Petitioner’s experiences with gang and [California
13
Youth Authority] violence[, which] would only have raised inferences that his
14
abusive childhood turned him into a hardened criminal who was quite capable of
15
murdering four people.”).
16
Defense counsel presented testimony from Petitioner’s oldest sister that
17
when she was fifteen years old and Petitioner was three, their mother worked
18
almost all day and their father was out all day looking for work. (RT 2450.) She
19
said she had the primary responsibility for the younger children at that time. (Id.)
20
When Petitioner was five or six years old, and when he began junior high school,
21
she cared for the younger children while their parents worked. (RT 2454, 2460.)
22
Petitioner’s father testified that around the time Petitioner started kindergarten, he
23
and his wife were both away from the home for work from 5:00 a.m. until 11:00
24
p.m. (RT 2625-27.)
25
Though, as Petitioner alleges (Petr.’s Br. at 37-39), counsel’s investigation
26
uncovered evidence that Petitioner’s siblings were also gang members (see, e.g.,
27
Pet. Ex. 161 at 3562 (Sealed); Pet. Ex. 165 at 3575 (Sealed); Pet. Ex. 168 at 3587
28
(Sealed)) and that his father consumed alcohol heavily (see, e.g., Pet. Ex. 161 at
11
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1
3563 (Sealed); Pet. Ex. 169 at 3592 (Sealed)), counsel may have reasonably
2
strategized against presenting that evidence, to avoid the impression that the family
3
was not worth saving. (Cf. Pet. Ex. 161 at 3561 (Sealed) (Investigator Duvall’s
4
impressions that Petitioner’s oldest sister was ____________________
5
__________________________________________); Pet. Ex. 166 at 3582
6
(Sealed) (Investigator Duvall’s impressions that Petitioner’s father was ______
7
_________________________________________________________________
8
___).)
9
Petitioner’s oldest sister testified that she visited Petitioner in jail every
10
month or two with her three children, ages six, three, and one. (RT 2463-64,
11
2466.) She said Petitioner calls their home two or three times a week and she and
12
her children speak to him for a half hour or an hour at a time, for the last three
13
years. (RT 2464, 2467.) She testified that her children love Petitioner and get
14
excited when he calls, and he draws and mails them cartoons. (RT 2464-65.) Her
15
oldest daughter sent Petitioner a photograph of herself and Petitioner used it to
16
draw a picture of her. (RT 2466.) She said her parents visit Petitioner every week,
17
despite their mother’s poor health, and before the jail changed its rules their mother
18
would visit him almost every day. (RT 2466, 2474.) She said that about two
19
weeks prior to her testimony, she and her parents, her children, and her sister went
20
to visit Petitioner and all waited from 10:00 a.m. until 3:50 p.m., ten minutes
21
before closing, when they were able to see Petitioner. (RT 2474-75.)
22
Counsel argued to the jury in closing:
23
When he [Petitioner] was three he moved to L.A. [¶] The first thing
that occurred when he moved to L.A. was his mother was working
and his father was roaming the streets looking for work were the
incidents that occurred on Figueroa. [¶] And I don’t know about how
that would affect most people as parents, but I find it kind of troubling
to think of a three year old getting hot water dumped on him, getting
beat up by the neighbor kids, getting his clothes stole[n] off the line
and thrown away, getting his food stolen from him and nobody around
24
25
26
27
28
12
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1
2
3
to do anything about it. [¶] Nothing done. I mean Rosie [Petitioner’s
oldest sister] couldn’t deal with it. [¶] Father was out looking for a
job. And those incidents went on and on.
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