Lester Ochoa v. Ron Davis ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESTER ROBERT OCHOA, No. 16-99008
Petitioner-Appellant,
D.C. No.
v. 2:99-cv-11129-DSF
RONALD DAVIS, Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted March 23, 2021
San Francisco, California
Filed November 1, 2021
Before: Johnnie B. Rawlinson, Richard R. Clifton, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Clifton
2 OCHOA V. DAVIS
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Lester
Ochoa’s habeas corpus petition, under 28 U.S.C. § 2254,
challenging the constitutionality of his conviction and death
sentence imposed in California state court.
Ochoa was convicted in a single trial in 1988 for a series
of violent crimes against three female victims over a six-
month period the previous year, including murder,
kidnapping, forcible rape, and assault with a deadly weapon.
This court previously granted Ochoa a certificate of
appealability as to five claims, which the panel reviewed with
the deference prescribed by the Antiterrorism and Effective
Death Penalty Act of 1996.
Ochoa contended that his right to due process under the
Fifth and Fourteenth amendments, as established by Brady v.
Maryland, 373 U.S. 83 (1963), was violated when the
prosecutor failed to disclose that three jailhouse informants
had told state police officers that Edward Ramage had
implicated himself in Lacy Chandler’s murder. The panel
held that the California Supreme Court’s determination that
the undisclosed evidence was not material at the guilt or
penalty phase of the proceedings was not contrary to or an
unreasonable application of Brady, nor did it amount to an
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OCHOA V. DAVIS 3
unreasonable determination of the facts in light of the
circumstances.
Ochoa argued that his trial counsel rendered ineffective
assistance under Strickland v. Washington, 466 U.S. 688(1984), during the penalty phase by failing to dig further into
the conditions in which Ochoa lived as a child and into his
family’s history of mental health issues and violence. The
panel held that even if counsel’s performance was deficient,
which is far from clear, the California Supreme Court’s
determination that the alleged deficiency did not cause
prejudice to Ochoa was not unreasonable.
Ochoa asserted that because trial counsel failed to present
the additional mitigation evidence at issue in the ineffective-
assistance claim, his death sentence violates the Eighth
Amendment in that the jury’s verdict was not based on
consideration of all the available mitigating evidence and
therefore was not a reliable finding of death. The panel wrote
that because the California Supreme Court did not
unreasonably decide that Ochoa’s counsel was not ineffective
under Strickland, it follows that his punishment is not a
violation of his Eighth Amendment right based on trial
counsel’s performance and the mitigation evidence they
failed to present. The panel noted that Ochoa provided no
support for his legal theory that ineffective assistance can
support a separate Eighth Amendment claim. In addition, the
panel wrote that this claim is barred because the right asserted
by Ochoa had not been recognized by the Supreme Court
prior to the time his conviction became final.
Ochoa contended that his right to be free from cruel and
unusual punishment under the Eighth and Fourteenth
Amendments was violated when, during the penalty phase of
4 OCHOA V. DAVIS
the proceedings, the trial court (1) refused to instruct the jury
that it could consider sympathy for Ochoa’s family;
(2) permitted the prosecutor to argue that family sympathy
was not an appropriate factor; and (3) prohibited him arguing
that family sympathy evidence was an appropriate mitigating
factor. The California Supreme Court held that the trial court
did not err because: (1) no clearly established federal law
required the court to instruct the jury as to family sympathy;
(2) neither the trial court’s instructions nor the prosecutor’s
argument precluded the jury from considering family
sympathy evidence as indirect evidence of Ochoa’s character
or the circumstances of the offenses charged; and (3) the
court did not prohibit Ochoa from arguing that family
sympathy was relevant. The panel held that the California
Supreme Court’s conclusion was not contrary to or an
unreasonable application of clearly established law or an
unreasonable determination of the facts in light of the
circumstances.
Ochoa contended that his privilege against self-
incrimination under the Fifth and Fourteenth Amendments, as
set forth in Simmons v. United States, 390 U.S. 377 (1968),
was violated when the trial court considered his suppression
hearing testimony about the night Chandler was killed in
deciding his post-conviction motion for a new trial. The
panel held that the California Supreme Court’s decision on
the merits regarding Ochoa’s suppression hearing testimony
was not contrary to or an unreasonable application of
Simmons or any other clearly established federal law. The
panel explained that Simmons, which bars the admission of a
defendant’s suppression hearing testimony as evidence
against the defendant at trial on the on the issue of guilt, does
not dictate that suppression hearing statements cannot be
considered in proceedings outside the guilt phase or for
OCHOA V. DAVIS 5
purposes other than establishing substantive guilt at trial. The
panel held that even if Ochoa had demonstrated a
constitutional violation, the California Supreme Court’s
determination was reasonable. Noting as well that Ochoa
seeks to expand Simmons and establish a new rule of
constitutional jurisprudence on collateral review, the panel
wrote that Teague v. Lane, 489 U.S. 288 (1989), precludes the
application of Ochoa’s proposed rule retroactively in his
federal habeas proceedings.
The panel declined Ochoa’s request to expand the
certificate of appealability to include his claim that his right
to due process, as set forth in In re Winship, 397 U.S. 358(1970), and Apprendi v. New Jersey, 530 U.S. 466 (2000),
and its progeny, was violated because the penalty phase jury
instructions failed to direct the jury that it was required to
find, beyond a reasonable doubt, that aggravating
circumstances existed and outweighed the mitigating
circumstances.
COUNSEL
James S. Bisnow (argued), Law Offices of James S. Bisnow,
Pasadena, California; Joseph F. Walsh (argued), Los Angeles,
California; for Petitioner-Appellant.
Stephanie C. Santoro (argued) and Dana Muhammad Ali,
Deputy Attorneys General; Lance E. Winters, Senior
Assistant Attorney General; Gerald A. Engler, Chief
Assistant Attorney General; Rob Bonta, Attorney General;
Attorney General’s Office, Los Angeles, California; for
Respondent-Appellee.
6 OCHOA V. DAVIS
OPINION
CLIFTON, Circuit Judge:
Petitioner Lester Ochoa appeals from the district court’s
denial of his habeas corpus petition, under 28 U.S.C. § 2254,
challenging the constitutionality of his conviction and death
sentence imposed in California state court. Ochoa was
convicted in a single trial in 1988 for a series of violent
crimes against three female victims over a six-month period
the previous year, including murder, kidnapping, forcible
rape, and assault with a deadly weapon. See People v. Ochoa,
966 P.2d 442, 458 (Cal. 1998).
Ochoa’s conviction and death sentence were appealed to
the California Supreme Court, which affirmed the judgment
in its entirety. Id. Ochoa twice sought habeas relief from the
California Supreme Court, but those petitions were denied.
Ochoa commenced federal habeas proceedings in the United
States District Court for the Central District of California.
The district court denied and dismissed Ochoa’s habeas
corpus petition, declined to issue a certificate of appealability
on any of the claims, and entered judgment. See Ochoa v.
Davis, No. CV 99-11129, 2016 WL 3577593, at *1, *144
(C.D. Cal. June 30, 2016).
Ochoa requested a certificate of appealability from this
court on seven of the claims presented in his habeas petition.
His request was granted as to five of the claims: (1) a claim
pursuant to Brady v. Maryland, 373 U.S. 83 (1963), asserting
a due process violation resulting from the prosecutor’s failure
to disclose jailhouse informant statements that appeared to
impeach a key witness against him by implicating that
witness in the murder charged; (2) a claim pursuant to
OCHOA V. DAVIS 7
Strickland v. Washington, 466 U.S. 688 (1984), asserting
ineffective assistance of counsel at the penalty phase of his
trial; (3) a claim asserting a violation of the Eighth
Amendment due to arguments not made by Ochoa’s trial
counsel at the penalty phase; (4) a claim asserting a violation
of the Eighth Amendment prohibition on cruel and unusual
punishment resulting from the trial court’s refusal to instruct
the jury that it could consider sympathy for Ochoa’s family
as a mitigating factor at the penalty phase; and (5) a claim
pursuant to Simmons v. United States, 390 U.S. 377 (1968),
asserting a violation of the privilege against self-
incrimination resulting from the trial court’s consideration of
Ochoa’s suppression hearing testimony in deciding his post-
conviction motion for a new trial. The parties briefed those
certified issues. Ochoa also briefed a sixth, uncertified claim,
asserting a due process violation resulting from the trial
court’s asserted failure to require that the jury find, beyond a
reasonable doubt, that aggravating circumstances existed and
that the aggravating circumstances outweighed the mitigating
circumstances.
We affirm the district court’s denial of Ochoa’s habeas
corpus petition. Ochoa has failed to establish that the
California Supreme Court’s decision was contrary to or
constituted an unreasonable application of clearly established
federal law or an unreasonable factual determination in light
of the circumstances with respect to any of his claims. See
28 U.S.C. § 2254(d)(1), (2). We decline to expand the
certificate of appealability to reach the uncertified claim
because Ochoa has failed to demonstrate that the accuracy of
the district court’s resolution of that claim is reasonably
debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
8 OCHOA V. DAVIS
I. Background
The following factual summary is drawn from the
California Supreme Court’s 1998 opinion. See Ochoa,
966 P.2d 442 (providing a more detailed discussion of the
facts surrounding Ochoa’s conviction and subsequent
proceedings).
A police officer found the body of sixteen-year-old Lacy
Chandler at a school in Baldwin Park, California, on June 18,
1987, at approximately 7:30 am. See Ochoa, 966 P.2d
at 460–61. Chandler’s body was found near an incinerator,
bloody and with knife wounds. Id. at 461. Chandler was last
seen by her boyfriend when she dropped him off for work at
approximately 3:00 am that morning. Id. at 460–61. A
forensic examination of Chandler’s body revealed twenty-
three stab wounds, averaging four inches in depth. Id. at 460.
Marks on the ground at the crime scene indicated that
Chandler’s body had been dragged back and forth about ten
feet before it was left near the incinerator. Id. at 461. An
investigator took casts of shoe prints located about twenty
feet from Chandler’s body, of which there was only one clear
type. Id.
Officers began to investigate Ochoa after hearing from
Edward Ramage that, earlier that year, Ramage had
interrupted Ochoa raping another woman, C.J., at the same
school where Chandler’s body had been found. See id.
at 458–61, 465. Ochoa was charged and convicted of that
crime in the same trial, as described below at 10–11. Ramage
subsequently admitted that he had himself participated in the
rape of C.J. 966 P.2d at 459.
OCHOA V. DAVIS 9
Officers asked Ochoa if he would be willing to take a
voluntary polygraph examination at the Baldwin Park Police
Station. Id. at 465. Ochoa agreed. Id. During the polygraph
examination, Ochoa confessed to killing Chandler and offered
to produce the murder weapon. Id. at 466. Ochoa
accompanied an officer to retrieve the knife that Ochoa said
he used to kill Chandler. Id. Upon returning to the police
station, Ochoa gave a taped confession in the presence of two
officers. Id. at 461, 467.
In his taped confession, Ochoa said that on the night in
question he had been high on cocaine. Id. at 462. Ochoa
explained that he was walking down a street at approximately
3:00 am on June 18, 1987, when he saw a blonde girl, who
turned out to be Chandler, near a car. Id. at 461. Ochoa said
that he approached Chandler with a knife in hand and took
her to the school where the two engaged in intercourse. Id.
Ochoa said that he stabbed Chandler to death because he was
afraid that she might report him. Id. at 462. Ochoa admitted
to dragging Chandler’s body to the incinerator. Id. Ochoa
denied having raped other women in the past. Id. Ochoa said
that he originally hid the murder weapon in his home, but
later moved it to where it was ultimately recovered. Id.
Before trial, Ochoa moved to suppress his taped
confession and exclude the knife recovered as a result of his
confession. Id. at 464. After holding a hearing on Ochoa’s
motion and considering the relevant testimony, the trial court
denied the suppression motion. Id. at 464, 469–70. The
prosecutor introduced Ochoa’s taped confession at trial. Id.
at 461. Ochoa did not testify at trial. Id. at 463.
A criminalist compared plaster shoe print casts and
photographs of the crime scene with the soles of Ochoa’s
10 OCHOA V. DAVIS
shoes and testified that one of his shoes had sole patterns and
a size consistent with the crime scene evidence but noted that
there was not enough detail to produce an exact match. Id. A
serologist testified that the blood evidence was inconclusive
as to whether any of the semen found on Chandler’s pants or
recovered from samples taken from Chandler’s body
belonged to Ochoa or as to whether blood found on the knife
that Ochoa produced belonged to Chandler. Id. Toxicological
results did not reveal any trace of cocaine or other commonly
abused drugs in Chandler’s blood. Id.
The prosecutor called Ramage to testify in its case in
chief. Id. at 462. Ramage denied any involvement in
Chandler’s murder. Id. at 458, 462. Ramage admitted that he
and Ochoa had raped C.J. in January of 1987, after
consuming a quarter of a gram of cocaine together. Id. at 459.
Ramage testified that Ochoa had wanted to kill C.J. but that
Ramage had convinced Ochoa to let her go. Id. Ramage
acknowledged that he had entered into a plea agreement
regarding the crimes against C.J., received an eight-year
prison sentence for his involvement, and agreed to testify in
Ochoa’s case. Id. at 462. Ochoa sought to impeach Ramage’s
credibility as a witness and suggest to the jury that Ramage
killed Chandler. Id.
Ochoa was prosecuted in the same trial for his actions
against C.J. The victim testified that Ochoa and Ramage
kidnapped and raped her on January 28, 1987. Id. at 458–60.
Although the assailants were unknown to her at the time of
the rape, C.J. was later able to identify Ochoa and Ramage
from two separate photograph six-packs. Id. at 459–60. C.J.
explained that, as she was returning home just before
midnight, Ochoa grabbed her from behind, forced her behind
a garbage dumpster, and demanded money. Id. at 458. At that
OCHOA V. DAVIS 11
point, Ramage arrived. Id. Ochoa and Ramage took C.J. to a
nearby school where they blindfolded her and forced her to
remove her clothes and to get down on her hands and knees.
Id. The two men then raped C.J. over the course of three
hours. Id. at 458–59. C.J. recalled that Ochoa appeared to be
in charge, that Ramage shook when he touched her, and that
Ramage asked Ochoa not to hurt her. Id.
Ochoa was also prosecuted in the trial for crimes against
a third victim, Ochoa’s sister-in-law, Y.A. She testified about
an incident on May 23, 1987, where Ochoa entered her home
without permission and lay in wait behind the front door. Id.
at 460. When Y.A. entered her home Ochoa grabbed her, held
a knife to her neck, forced her into a bedroom, and choked
her until she became unconscious. Id. Ochoa’s attack on Y.A.
ended when Ochoa was interrupted by Y.A.’s cousin, whom
Y.A. instructed to call the police. Id.
The jury found Ochoa guilty of committing crimes against
all three victims. With respect to the crimes against sixteen-
year-old Chandler, the jury convicted Ochoa of first-degree
murder, forcible rape, and kidnapping. Id. at 458, 464. The
jury found true two special circumstances in connection with
Chandler’s murder: that the murder occurred during the crime
of kidnapping and that the murder occurred during the crime
of rape. Id. at 458. Following a separate penalty phase trial,
the same jury imposed a death sentence for the murder
conviction, and the trial court refused to modify the death
sentence. Id. In addition to the death sentence, the court also
sentenced Ochoa to six years for the forcible rape conviction
and five years for the kidnapping conviction, each term to run
consecutively, but stayed both sentences.
12 OCHOA V. DAVIS
As for the crimes against C.J., the jury found Ochoa
guilty of “kidnapping for robbery, simple kidnapping,
robbery, forcible rape, forcible rape in concert, forcible oral
copulation, forcible oral copulation in concert, rape by means
of a foreign object (namely fingers), attempted forcible
sodomy, and attempted forcible sodomy in concert.” Id. The
trial court imposed a sentence of life with possibility of
parole for the kidnapping for robbery conviction. The court
sentenced Ochoa to five years for simple kidnapping, three
years for robbery, six years for forcible rape, seven years for
forcible rape acting in concert, six years for forcible oral
copulation, seven years for forcible oral copulation acting in
concert, six years for rape by a foreign object, three years for
attempted forcible sodomy, and three and a half years for
attempted forcible sodomy in concert. The court ordered the
convictions for rape by a foreign object, attempted forcible
sodomy, and attempted forcible sodomy in concert to run
concurrently to any other conviction. The court ordered the
remainder of the sentences to run consecutively but stayed
those sentences.
Finally, as for the crimes against Y.A., the jury found
Ochoa guilty of two counts of assault with a deadly weapon
by means of force likely to cause great bodily injury, assault
with intent to rape, and residential burglary. Id. The court
sentenced Ochoa to three years and one year for the two
counts of assault with a deadly weapon or by means of force
likely to produce great bodily injury, four years for assault
with intent to commit rape, and four years for the burglary
with a additional one-year enhancement for use of a deadly
weapon. The court ordered each of the sentences to run
consecutively and to be stayed.
OCHOA V. DAVIS 13
Following his conviction and the imposition of a death
sentence, Ochoa filed a motion for a new trial based, in part,
on newly discovered evidence, which he asserted the
prosecutor failed to disclose in violation of Ochoa’s due
process rights under Brady v. Maryland, 373 U.S. 83 (1963).
After a hearing, the trial court denied Ochoa’s motion for a
new trial. Ochoa, 966 P.2d at 516.
Ochoa’s conviction and death sentence were
automatically appealed to the California Supreme Court. On
direct appeal, the California Supreme Court affirmed Ochoa’s
judgment of conviction and death sentence. See generally
Ochoa, 966 P.2d 442. The United States Supreme Court
denied his petition for writ of certiorari. See Ochoa v.
California, 528 U.S. 862 (1999). Following his direct appeal,
Ochoa filed two state habeas corpus petitions in the
California Supreme Court, one in 1997 and the other in 2002.
See In re Ochoa, S064794, 1998 Cal. LEXIS 7406, at *1
(Nov. 5, 1998); In re Ochoa, S109935, 2003 Cal. LEXIS
2047, at *1 (Mar. 26, 2003). Both state habeas petitions were
summarily denied.
Ochoa commenced habeas proceedings in the United
States District Court for the Central District of California in
1999. Ochoa filed the operative pleading, the Third Amended
Petition (“Petition”), on December 18, 2007. In 2016, the
district court denied and dismissed the Petition, declined to
issue a certificate of appealability, and entered judgment.
Ochoa timely appealed and requested a certificate of
appealability from this court. This court granted that request
as to five of seven issues, as described above at 6–7.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253.
14 OCHOA V. DAVIS
II. Standards of Review
We review de novo the district court’s denial of Ochoa’s
Petition. See Gulbrandson v. Ryan, 738 F.3d 976, 986 (9th
Cir. 2013).
As Ochoa filed his habeas petition after April 24, 1996,
our review is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.
See Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004).
AEDPA bars the relitigation of any claim adjudicated on the
merits by a state court unless one of two narrow exceptions
set forth in 28 U.S.C. § 2254(d)(1) or (2) applies. Harrington
v. Richter, 562 U.S. 86, 98 (2011). We presume that the state
court adjudicated each claim “on the merits in the absence of
any indication or state-law procedural principles to the
contrary.” Id. at 99. Relitigation is barred unless the state
court’s decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” at
the time the state court adjudicated the claim, 28 U.S.C.
§ 2254(d)(1), or (2) “based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding,” id. § 2254(d)(2). Accordingly, AEDPA
confirms a federal court’s “authority to issue [a] writ in cases
where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [the United States
Supreme] Court’s precedents.” Richter, 562 U.S. at 102; see
Williams v. Taylor, 529 U.S. 362, 412–13 (2000). The
petitioner bears the burden of proof under AEDPA. Richter,
562 U.S. at 98. AEDPA demands a “highly deferential”
review of state courts, giving those decisions the “benefit of
the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(internal quotation marks and citation omitted).
OCHOA V. DAVIS 15
“The ‘contrary to’ and ‘unreasonable application’ clauses
of § 2254(d)(1) have independent meaning.” Cook v. Kernan,
948 F.3d 952, 965 (9th Cir. 2020). A state court’s decision is
“contrary to” clearly established federal law if it fails to apply
controlling authority, “applies a rule that contradicts the
governing law,” or “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court”
and reaches a different result. Id. (quoting Williams, 529 U.S.
at 405–06). A decision is an “unreasonable application” of
clearly established federal law if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts”
of the case. Id. (quoting Williams, 529 U.S. at 407–08); see
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“The
‘unreasonable application’ clause requires the state court
decision to be more than incorrect or erroneous.”).
Under 28 U.S.C. § 2254(d)(2), “a state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the
first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).
Rather, a finding is unreasonable if an appellate court “could
not reasonably conclude that the finding is supported by the
record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004), abrogation on other grounds as recognized by Murray
v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014).
“[D]etermining whether a state court’s decision resulted
from an unreasonable legal or factual conclusion does not
require that there be an opinion from the state court
explaining the state court’s reasoning.” Richter, 562 U.S. at
98. Even when a state court has issued a summary denial, the
petitioner must show that there was no reasonable basis for
the state court to deny relief. See id. Pursuant to § 2254(d),
federal courts must consider what theories supported, or
16 OCHOA V. DAVIS
could have supported, the state court’s decision and ask
whether the theories are inconsistent with Supreme Court
precedent. Id. at 102. AEDPA does not require citation—or
even awareness—of Supreme Court precedent “so long as
neither the reasoning nor the result of the state-court decision
contradicts” precedent. Early v. Packer, 537 U.S. 3, 8 (2002)
(per curiam).
III. Discussion
Ochoa presents six constitutional claims, five certified
and one uncertified. We first address the two claims discussed
at oral argument—the Brady and Strickland
claims—followed by the remaining certified claims, and,
finally, the uncertified claim.
A. Brady Due Process Claim
Ochoa contends that his right to due process under the
Fifth and Fourteenth Amendments, as established by Brady
v. Maryland, 373 U.S. 83 (1963), was violated when the
prosecutor failed to disclose that three jailhouse informants
had told state police officers that Ramage had implicated
himself in Chandler’s murder. The California Supreme Court
concluded that the informants’ evidence “was not material
either as to guilt or penalty,” and thus, there had been no due
process violation warranting a new trial. Ochoa, 966 P.2d
at 516–18. The district court concluded that the California
Supreme Court’s denial of Ochoa’s Brady claim “did not
amount to an unreasonable application of clearly established
federal law” or “an unreasonable determination of the facts in
light of the evidence” because all of the evidence in the
record pointed to Ochoa’s guilt and because Ochoa’s
confession, knowledge of the location of the murder weapon,
OCHOA V. DAVIS 17
and the forensic evidence contradicted the jailhouse
informants’ testimony. Ochoa, 2016 WL 3577593, at *30.
1. Legal Standard
State prosecutors have a duty under the Fourteenth
Amendment Due Process Clause to disclose certain evidence
to criminal defendants. See Brady, 373 U.S. at 87; United
States v. Bagley, 473 U.S. 667, 674–77 (1985). In Brady, the
Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused . . . violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. A successful Brady claim
requires a showing that the evidence was: (1) favorable to the
accused; (2) suppressed by the prosecution; and
(3) prejudicial. See Strickler v. Greene, 527 U.S. 263, 281–82
(1999).
“Any evidence that would tend to call the government’s
case into doubt is favorable for Brady purposes,” Milke v.
Ryan, 711 F.3d 998, 1012 (9th Cir. 2013), including
exculpatory and impeachment evidence, Comstock v.
Humphries, 786 F.3d 701, 708 (9th Cir. 2015) (citing
Strickler, 527 U.S. at 281–82). Evidence may be deemed
“suppressed” for the purpose of Brady even where the failure
to disclose favorable evidence was unintentional, see Benn v.
Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002), or where the
prosecutor was unaware that others, acting on the
government’s behalf, had such evidence, see Kyles v. Whitley,
514 U.S. 419, 437 (1995). “The terms ‘material’ and
‘prejudicial’ are used interchangeably in Brady cases.” Benn,
283 F.3d at 1053 n.9. The prosecution’s failure to disclose
evidence is prejudicial “if there is a reasonable probability
18 OCHOA V. DAVIS
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Bagley,
473 U.S. at 682 (opinion of Blackmun, J.); see Kyles,
514 U.S. at 433–34. A “reasonable probability” of a different
result exists when the failure to disclose “undermines
confidence in the outcome of the trial.” Bagley, 473 U.S.
at 678 (majority opinion). “The question is not whether the
defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence
[the defendant] received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Kyles, 514 U.S.
at 434.
2. Motion for a New Trial
As discussed above at 10, at Ochoa’s trial, Ramage
testified for the prosecution and admitted that he and Ochoa
had raped C.J. at the same school where Chandler’s body was
later found. Ochoa, 966 P.2d at 458–59.
Following his conviction and sentencing, Ochoa filed a
motion for a new trial asserting that the prosecutor failed to
disclose statements from three jailhouse informants, Richard
Slawinski, Willie Ray Battle, and Dennis Austin, about
conversations in which Ramage implicated himself in
Chandler’s murder. Id. at 515–16. Ochoa argued that the
undisclosed statements were relevant to impeach Ramage’s
testimony because Ramage testified that he was not involved
in and had no direct knowledge of Chandler’s murder. Id. At
a hearing on the motion, the trial court heard testimony from
the three jailhouse informants, several law-enforcement
officers, Ochoa’s defense investigator, and Ramage. Id.at 515–17.
OCHOA V. DAVIS 19
Slawinski submitted a written statement and testified
regarding what he alleged Ramage told him while the two
were housed together in 1988. Id. at 515. Slawinski asserted
that Ramage told him that he had been involved in the murder
of a sixteen- or seventeen-year-old girl at a school with
Ochoa. Id. Slawinski recalled that Ramage told him that
Ramage, Ochoa, and the girl went to the school to get high on
cocaine. Id. Slawinski said that Ramage told him that the girl
attempted to escape after Ochoa voiced his intent to rape her
but that Ramage pulled her off a fence and held her down
while Ochoa stabbed her approximately twenty times. Id.Slawinski testified that he relayed Ramage’s statements to
Baldwin Park Police Department Sergeant Richard Valdemar.
Id. On cross-examination, Slawinski conceded that, although
he spoke to Ramage about forty to fifty times about the
murder, he could not recall many additional details of the
conversation. Id. Slawinski admitted to being a long-time
informant and providing information to Sergeant Valdemar
in approximately ten to twenty criminal cases. Id. Slawinski
denied asking Sergeant Valdemar for any benefits in
exchange for informing. Id. The prosecution impeached that
denial with evidence that Slawinski gave information to the
Pomona Police Department related to another case to avoid
a prison sentence and to obtain a plea agreement. Id.Stanley White, one of the detectives who handled the
investigation of Chandler’s murder, confirmed that Sergeant
Valdemar called him to inform him of Slawinski’s
statements. Id. at 515–16. White testified that he discounted
Slawinski’s statements because he generally believed
jailhouse informant statements to be “highly inaccurate” and
because he was convinced, by both the physical evidence and
Ochoa’s confession, that there was no one else involved in
Chandler’s murder. Id.20 OCHOA V. DAVIS
Battle similarly submitted a written statement and
testified that Ramage had confessed to participating in
Chandler’s murder. Id. at 516. Battle testified that Ramage
stated that he and Ochoa had raped “a young girl, about 15”
at the place of a prior rape and that Ochoa subsequently
stabbed the girl to death. Id. Battle said that he did not inform
law enforcement about Ramage’s statements because he was
scheduled to be released from jail the following month. Battle
admitted to having served as an informant approximately one
hundred times, giving statements in thirteen murder cases,
and testifying in seven. Id. Battle conceded that he expected
that he would receive a benefit “for giving truthful statements
against Ramage.” Id.Austin testified that Ramage informed him that Ramage
and Ochoa had “part[ied]” and “g[otten] high on coke” at a
school with a sixteen- or seventeen-year-old girl with whom
they intended to have sex. Id. Austin stated that Ramage told
him that the girl panicked and tried to run but that Ramage
grabbed her feet and Ochoa stabbed her. Id. Austin said that
he called Baldwin Park police to report Ramage’s confession
and spoke to a police officer, telling the officer that he had
information about “Lester Ochoa and Eddie Ramage being
involved” in a crime involving a sixteen- or seventeen-year-
old stabbing victim. Austin did not go into great detail with
the officer because he was told that the case was already
being handled. Id.Ochoa’s defense investigator, Gordon Zbinden, testified
that, before trial, he told the prosecutor that he believed at
least two people had been involved in Chandler’s murder. Id.Zbinden based his opinion on his seventeen years of
experience in law enforcement and the physical evidence. Id.OCHOA V. DAVIS 21
The prosecutor called Ramage to testify at the new trial
hearing. Id. Ramage stated, as he had at the trial, that he had
not been involved in any crimes against Chandler. Id.Ramage testified that he had shared a cell with Slawinski and
that Battle was housed in an adjoining cell. Id. Ramage said
that he sought Slawinski’s and Battle’s advice because they
were long-time informants and knew how the “game
work[ed].” Ramage testified that he told the informants about
his participation in the assault on C.J., that he was testifying
against Ochoa, and that he was not involved in Chandler’s
murder. Id. Ramage said that the information he gave the
informants about Chandler’s murder, including the number of
times Chandler had been stabbed, came from a detective on
the case. Id.The trial court denied Ochoa’s motion for a new trial,
deciding that although the prosecution had an obligation to
turn over the undisclosed evidence, its failure to do so did not
constitute a denial of due process or undermine Ochoa’s right
to a fair trial. Id. at 516–17. The trial court noted that the jury
was in fact presented with evidence undermining Ramage’s
credibility. Id. Moreover, the trial court reasoned that
regardless of the effect the informants’ statements might have
had on Ramage’s credibility, the informants’ statements were
undermined by the physical evidence. Id.
3. California Supreme Court Decision
The California Supreme Court held on direct appeal that,
although the prosecution should have disclosed Slawinski’s
and Austin’s statements to Ochoa, the statements were not
material under Brady, and accordingly, no due process
violation had occurred. Ochoa, 966 P.2d at 517–18.
22 OCHOA V. DAVIS
Discussing the materiality standard set forth in the United
States Supreme Court decisions in Bagley and Kyles, the
California Supreme Court concluded that the prosecutor’s
failure to disclose the informants’ statements, although a
discovery violation, was not a due process violation that
undermined the fairness of Ochoa’s trial. Id. The California
Supreme Court determined that the evidence would not have
raised “a significant question about Ramage’s credibility.” Id.
at 518. The court reasoned that Ramage’s credibility “would
have been extraordinarily difficult to impeach” because
Ramage volunteered information that he knew would
implicate him in the crimes against C.J. at a time when he
was not suspected of any wrongdoing. Id. Moreover, the
California Supreme Court reasoned that the testimony of the
jailhouse informants was not credible and would likely have
been impeached at trial. Id. In addition, the California
Supreme Court noted that although the jailhouse informants’
testimony might have implicated Ramage in Chandler’s
murder, it also would have reinforced the evidence against
Ochoa, such that it was unlikely that the evidence would even
have been introduced as part of his defense. Id. at 517.
4. Analysis
As an initial matter, Ochoa argues that we should not
afford AEDPA deference to the California Supreme Court’s
review of his Brady claim because the decision was
objectively unreasonable because it failed to address whether
the undisclosed evidence was material at the penalty phase of
the proceedings. In effect, Ochoa asks us to review his Brady
claim de novo. That argument lacks merit. The California
Supreme Court explicitly stated that the undisclosed evidence
“was not material either as to guilt or penalty,” and held that
the prosecutor’s failure to disclose the evidence “did not . . .
OCHOA V. DAVIS 23
make the entire guilt or penalty phase fundamentally unfair,
much less the trial as a whole.” Ochoa, 966 P.2d at 517(emphases added). A state court decision is not unreasonable
merely because the decision did not include a detailed
explanation of the court’s reasoning. Richter, 562 U.S. at 98.
Ochoa has the burden of demonstrating that there was no
reasonable basis for the state court’s determination. Id.Accordingly, we apply AEDPA deference to the California
Supreme Court’s denial of Ochoa’s Brady claim.
The parties do not dispute that Slawinski’s and Austin’s
statements regarding Ramage’s alleged involvement in
Chandler’s murder were suppressed by the prosecution. As
the trial court and California Supreme Court observed, the
prosecution had an obligation under Brady to disclose to the
defense the jailhouse informants’ statements known to law
enforcement.1
Ochoa contends that the undisclosed evidence was
favorable and material at the penalty phase of his trial. Ochoa
reasons that the jury might have imposed a life sentence
rather than a death sentence if it heard the evidence of
Ramage’s involvement on the theory that a death sentence
would have seemed to the jury extremely disproportionate to
Ramage’s eight-year sentence for a related crime and to no
punishment for the rape and murder of Chandler.
1
As Battle never informed law enforcement regarding his
conversations with Ramage, his statements could not have been
suppressed within the meaning of Brady, though his subsequent testimony
was arguably relevant to bolster the evidence regarding the information
passed to law enforcement by the other informants.
24 OCHOA V. DAVIS
First, the California Supreme Court noted that each of the
jailhouse informants testified that Ramage told them that
Ochoa participated in Chandler’s murder and described
Ochoa as stabbing Chandler while Ramage held her feet.
Ochoa, 966 P.2d at 516–17. The court reasoned that, given
that the informants’ statements reinforced the evidence
against Ochoa, it is unlikely that Ochoa would have
introduced the statements at trial had they been disclosed
because they corroborated the most serious charge against
him. Id. at 517. That determination was not unreasonable.
Although Ochoa may be correct that the jailhouse
informants’ statements were relevant to impeach Ramage’s
testimony by suggesting Ramage’s involvement in Chandler’s
murder, the materiality determination is not a question of
relevance, but prejudice. We must ask whether the
prosecutor’s failure to disclose the statements “undermines
confidence in the outcome” of Ochoa’s trial and sentence.
Bagley, 473 U.S. at 678. For that reason, the question of
materiality or prejudice “must be analyzed in the context of
the entire record.” Benn, 283 F.3d at 1053 (internal quotation
marks and citation omitted). We must assess “the nature and
strength of both the evidence the defense was prevented from
presenting and the evidence each side presented at trial” to
determine whether Ochoa was prejudiced. Bailey v. Rae,
339 F.3d 1107, 1119 (9th Cir. 2003) (internal quotation marks
and citation omitted).
The California Supreme Court’s conclusion that the
informants’ statements were not material was not contrary to
or an unreasonable application of Brady. The California
Supreme Court’s determination, that it would have been
difficult to impeach Ramage with the jailhouse informants’
statements, was not unreasonable in light of the
OCHOA V. DAVIS 25
circumstances. Ramage’s credibility was heavily bolstered, as
the California Supreme Court noted, by the fact that he
knowingly subjected himself to criminal liability for the
assault on C.J. when he chose to inform and testify regarding
Ochoa’s involvement in Chandler’s murder. Ochoa, 966 P.2d
at 518. On the other hand, the trial court found that the
jailhouse informants lacked credibility. Id. The informants
were themselves impeached based on their extensive history
informing for the state in other cases and the admitted
benefits they received or hoped to receive for testifying in
Ochoa’s case. In addition, as the district court noted, the
jailhouse informants’ statements were inconsistent with
Ochoa’s taped confession and the crime scene evidence. See
Ochoa, 2016 WL 3577593, at *30. In his taped confession,
Ochoa did not implicate Ramage or indicate that he had acted
in concert with another individual in killing Chandler. Ochoa,
966 P.2d at 461–62. The crime scene had shoe prints made by
only one type of shoe, a type consistent with Ochoa’s, further
indicating that Ochoa acted alone. Id. at 461, 463. As the trial
court and California Supreme Court noted, despite statements
by Slawinski and Austin that Ramage said Chandler had used
cocaine shortly before her death, the autopsy revealed no
trace of cocaine or other drugs in her blood. Id. at 463,
516–17. It was not unreasonable for the trial court and the
California Supreme Court to conclude that the undisclosed
jailhouse informants’ statements were not credible and would
have been of little persuasive value if introduced at trial.
Moreover, viewing the undisclosed statements in the
context of the entire record, we note that the jury did hear
other impeachment evidence regarding Ramage. The jury
heard from Baldwin Park Police Detective Aquino that two
civilians informed him that Ramage told the civilians that he
had participated in Chandler’s murder. Id. at 463. The jury
26 OCHOA V. DAVIS
heard evidence that Ramage routinely carried a buck knife
and used drugs. Id. at 463, 482. The jury heard that Ramage
confessed to participating in the assault on C.J. Id. at 459.
Similarly, the jury heard Ramage testify that he spoke to the
police because he believed that others suspected him of being
involved in Chandler’s murder. Id. at 463. Finally, the jury
heard evidence that Ramage had sexually assaulted a girl
when she was eight or nine years old. Id. That evidence did
not persuade the jury that Ochoa was not guilty or should
receive a lesser punishment. It was not unreasonable for the
California Supreme Court to conclude that the information
that was withheld from Ochoa at the time would not have
made a difference.
We agree with the district court that the California
Supreme Court’s determination that the undisclosed evidence
was not material at the guilt or penalty phase of the
proceedings was not contrary to or an unreasonable
application of Brady, nor did it amount to an unreasonable
determination of the facts in light of the circumstances. See
Ochoa, 2016 WL 3577593, at *30.
B. Ineffective Assistance of Counsel Claim
Ochoa argues that his trial counsel was ineffective during
the penalty phase. Specifically, Ochoa alleges that his
attorneys and their investigators should have dug further into
the conditions in which he lived as a child and into his
family’s history of mental health issues and violence. Ochoa
argues that if counsel had asked more prying questions and
investigated his father’s criminal history, they would have
seen red flags that would have alerted them to the horror that
was Ochoa’s childhood.
OCHOA V. DAVIS 27
It is undisputed at this point that Ochoa’s childhood, as
elucidated by the habeas investigation and related witness
declarations, was far from a happy, stable one. However, it is
unclear what trial counsel knew of the true conditions of
Ochoa’s childhood. Perhaps more importantly, the California
Supreme Court appears to have determined that Ochoa did
not suffer prejudice from any shortcomings of his counsel’s
representation. We conclude that such a determination was
not unreasonable. As a result, this claim fails.
1. Legal Standard
To prove a constitutional violation for ineffective
assistance of counsel, Ochoa must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland, 466 U.S.
at 687. “Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more
difficult.” Richter, 562 U.S. at 105. Under § 2254(d), Ochoa
must demonstrate that “it was necessarily unreasonable for
the California Supreme Court to conclude: (1) that he had not
overcome the strong presumption of competence; and (2) that
he had failed to undermine confidence in the jury’s sentence
of death.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
This review is therefore “doubly deferential” as we defer both
to the trial counsel’s tactical decisions and to the California
Supreme Court’s determination that the trial counsel was not
ineffective under Strickland. Id.
2. Decisions Below
The California Supreme Court summarily denied this
claim on the merits when it denied Ochoa’s state habeas
petitions without elaboration. The court did not specify
28 OCHOA V. DAVIS
whether Ochoa’s claim failed on the first Strickland prong,
the second, or both. In re Ochoa, 1998 Cal. LEXIS 7406,
at *1; In re Ochoa, 2003 Cal. LEXIS 2047, at *1.
The district court concluded that the California Supreme
Court did not unreasonably apply Strickland. The district
court noted an absence of evidence to suggest that counsel
should have discovered evidence of Ochoa’s bad childhood
and dysfunctional family. Ochoa, 2016 WL 3577593, at *69.
Ultimately, the district court concluded that counsel’s
strategy to portray Ochoa as a redeemable, good person who
only acted badly under the influence of drugs was reasonable.
Id. at *67–68. The court reasoned that the new evidence if
presented could have impacted the jury negatively because
the jury could have understood it to mean that his bad
behavior was not the result of drug abuse but instead that he
was a “fundamentally and perhaps organically flawed
character” who was “irretrievably broken.” Id. Thus, the
district court concluded that Ochoa’s counsel did not act
unreasonably and he was not prejudiced by his counsel’s
actions. Id. at *69.
3. Facts
During the penalty phase of Ochoa’s trial, his counsel
focused on his drug abuse. The district court aptly
characterized the penalty phase presentation as putting on
evidence of Ochoa being a “Jekyll and Hyde” of sorts—“a
good young man who was made into a monster by substance
abuse.” Id. The defense called as witnesses members of
Ochoa’s family, a childhood friend, victim Y.A., law
enforcement officers who had interacted with Ochoa, and an
expert on cocaine’s effect on the human body.
OCHOA V. DAVIS 29
During the penalty phase of the trial, Ochoa’s half-sister
testified that Ochoa was a fun-loving child and had many
friends. She also stated that Ochoa’s parents treated him well
and spoiled him. She testified that “conflict” was constant in
their home, but clarified that Ochoa was treated “very well”
by his parents and that “he had a pretty good childhood and
a lot of love.” When Ochoa was around fourteen or fifteen
years old, his half-sister saw his personality start to change;
he began using slang, and she assumed he was hanging
around with the wrong crowd. His childhood friend testified
that he and Ochoa started getting into trouble together when
they were twelve years old because they belonged to a gang
and were involved in activities including stealing, smoking,
and committing robberies. This friend had seen Ochoa use
several kinds of drugs, including PCP, cocaine, and heroin.
According to his family’s testimony, Ochoa became
plagued by drug abuse as a teenager and his drug abuse
continued until his arrest in this case. His personality when he
was high on drugs was very different than when he was sober.
When Ochoa was high on drugs, he acted belligerently and
people were afraid of him. His sister testified that when he
was high, he had physically abused his wife at least ten times
and fought with their father at least fifteen times.
The witnesses testified that Ochoa was not without the
ability to feel remorse. When Ochoa would return home after
getting high, he was often regretful and expressed the desire
to get help. Officer White testified that when Ochoa
confessed to the murder, he cried and asked for help “for
what he had done.” The witnesses also testified that Ochoa
could still contribute to society even if sentenced to life
imprisonment. A deputy sheriff testified that during the
month and a half that Ochoa was under his supervision in jail,
30 OCHOA V. DAVIS
Ochoa worked an eight-hour day performing clerical and
manual tasks. The officer observed that Ochoa was not
aggressive, was willing to work, and got along well with the
other prisoners. A consultant for the California Department
of Corrections opined that Ochoa would adjust well to prison
and be a productive prisoner as there was less access to drugs
in prison.
Habeas counsel argues that the picture painted of Ochoa’s
childhood at trial was false. Rather than the fun and loving
childhood that was presented to the jury, habeas counsel
describes Ochoa’s childhood as “an extremely toxic and
dysfunctional one” in “a macabre household consisting of an
alcoholic and abusive father and a weak, passive and
confused mother with a family history of mental illness and
a home where, incest and violence occurred almost daily.”
Habeas counsel argue that the penalty phase defense that
should have been presented was that Ochoa had mental
impairments and grew up under horrible conditions, which
led him to use drugs, and resulted in his crimes.
Habeas counsel collected declarations from Ochoa’s
family members, including his half-sister, his sister, his wife,
and his mother, who each had testified at the trial, as well as
childhood neighbors and friends, which substantiated that
version of the story. These declarations depicted a troubled
home life with physical and sexual violence, excessive
drinking, and a lack of parenting and stability. Although most
of the violence was directed at others, Ochoa witnessed much
of it. Some violence was directed at Ochoa, but he was
treated considerably better than his half-siblings. Most of the
violence was by Ochoa’s father, described in probation
records from before Ochoa’s birth as an “immature
psychopath” with “little moral insight.” The declarations also
OCHOA V. DAVIS 31
discussed the family history of Ochoa’s mother, including
mental illness, drug addiction, and alcoholism.
Habeas counsel asserts that these declarations show that
Ochoa “was a man born into a world in which he never had
a chance.” Habeas counsel argues that had the jury learned of
Ochoa’s true family history, it would have humanized him
and would have explained why Ochoa began using drugs. As
a result, according to habeas counsel, there was a reasonable
probability that the jury would have spared his life.
Habeas counsel also had Ochoa reevaluated for mental
illness. One of the evaluators, Richard Romanoff, Ph.D., a
psychologist who examined Ochoa in 2001, criticized the
evaluations conducted in 1988 as cursory. Both habeas
reports found that Ochoa had cognitive impairments. Most
notably, Dr. Kyle Boone, Ph.D., a neuropsychologist who
examined Ochoa in 2002, concluded that Ochoa “appears, to
some extent, to lack the basic ‘brain equipment’ with which
to make reasoned choices regarding his behaviors.”
4. Analysis
a. Prejudice
In assessing whether the California Supreme Court
reasonably concluded that Ochoa was not prejudiced by
counsel’s alleged failure to investigate and present mitigating
evidence, we must “reweigh the evidence in aggravation
against the totality of available mitigating evidence.”
Pinholster, 563 U.S. at 197–98 (quoting Wiggins v. Smith,
539 U.S. 510, 534 (2003)). A defendant must establish “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been
32 OCHOA V. DAVIS
different.” Strickland, 466 U.S. at 694. In a capital case, this
means a defendant must show “a reasonable probability that
at least one juror” would have voted for a life sentence.
Wiggins, 539 U.S. at 537.
Knowing that the “Jekyll and Hyde” penalty phase
presentation was unsuccessful, Ochoa now argues that the
failure to present the alternative defense focused on a horrific
family life supported with the additional mitigating evidence
prevented the jury from having a full picture of his
background. He alleges that providing the jury with facts
about his violent upbringing and dysfunctional family would
have humanized him and changed the weighing of the
aggravating and mitigating factors such that the jury would
not have recommended a death sentence.
That the penalty phase defense offered at trial was not
successful is not sufficient to make an ineffective assistance
of counsel argument. See Strickland, 466 U.S. at 689–90.
It was not unreasonable for the California Supreme Court
to find that the new evidence and arguments presented by
habeas counsel did not demonstrate trial counsel was
ineffective. The new evidence of Ochoa’s life history is of
little or even negative mitigating value compared to the
evidence presented at his trial. Ochoa’s habeas counsel argue
that if the evidence had been presented the jury would have
learned about Ochoa’s pervasive childhood exposure to
violence and alcohol. According to habeas counsel, at least
one juror would have concluded that Ochoa was a victim who
was less culpable due to this disadvantaged background. See
Boyde v. California, 494 U.S. 370, 382 (1990). But presenting
evidence of his father’s volatility and abusive behavior and
his mother’s family history of mental illness could have
OCHOA V. DAVIS 33
diminished the mitigating impact of Ochoa’s relationship
with his family and his positive character and background
attributes. See Pinholster, 563 U.S. at 201 (“The new
evidence relating to [defendant’s] family—their more serious
substance abuse, mental illness, and criminal problems —is
also by no means clearly mitigating, as the jury might have
concluded that [defendant] was simply beyond
rehabilitation.” (citation omitted)); Zapien v. Davis, 849 F.3d
787, 798 (9th Cir. 2015) (recognizing that mitigating
evidence of an abusive family “‘can be a two-edged sword
that a [jury] might find to show future dangerousness’ or use
to conclude that a defendant is ‘simply beyond
rehabilitation’” (quoting Pinholster, 563 U.S. at 201)). Ochoa
would no longer have been portrayed as a nice guy when
sober, but, rather, as a man who was fundamentally damaged.
Under the deferential standard, we ask if the California
Supreme Court’s determination that trial counsel’s strategy
did not prejudice Ochoa was unreasonable. Pinholster,
563 U.S. at 190. It was not.
Habeas counsel also had two mental health evaluations of
Ochoa conducted at San Quentin Prison. The new mental
health evaluations were also not necessarily mitigating. It was
not unreasonable for the California Supreme Court to
conclude that trial counsel was not ineffective for failing to
have such evaluations conducted or presenting such evidence
during the penalty phase of the trial. First, the evaluations
could have opened the door to the prosecution calling its own
rebuttal experts who may have countered the evaluations. See
id. at 201. Further, the jury may not have concluded that the
evidence presented by the habeas experts was mitigating.
Dr. Romanoff found Ochoa to be “an extremely fragile and in
many ways distrustful individual who was extremely
sensitive to any perceived rejection or disrespect,” a person
34 OCHOA V. DAVIS
with “significant antisocial traits” and one who was
“extremely damaged.” This evidence may have led the jury
to conclude that Ochoa was irretrievably damaged and there
was no reason to spare him. Dr. Boone similarly concluded
that Ochoa “appears, to some extent, to lack the basic ‘brain
equipment’ with which to make reasoned choices regarding
his behaviors.”
Moreover, the new mental health evaluations were
equivocal and inconclusive. For example, Dr. Romanoff
opined that Ochoa’s test results “open[ed] up the possibility
of underlying organic impairment in Mr. Ochoa that may well
have been present in him since birth,” impairments that may
have been caused by his mother’s drinking during her
pregnancy with Ochoa. Dr. Romanoff stated that more testing
would be required to “more fully explore th[ese]
possibilit[ies].” A jury could have determined that the
evaluations were of little value because they were
inconclusive.
Further, the California Supreme Court could have
reasonably concluded that the aggravating evidence
outweighed any possible mitigating value of habeas counsel’s
proposed penalty phase presentation. The aggravating
evidence included the underlying crimes of rape against C.J.,
the assault on Y.A., and the rape and murder of
sixteen-year-old Chandler, who was stabbed twenty-three
times. It also included evidence of two prior crimes of
violence by Ochoa, an attack on a woman in 1983 where
Ochoa pushed her into a car and repeatedly hit her in the
head, and a 1986 conviction for battery in which Ochoa
grabbed a man outside of a doughnut shop and then resisted
arrest. Ochoa, 966 P.2d at 494. The mitigating evidence
presented at the penalty phase included humanizing
OCHOA V. DAVIS 35
portrayals of Ochoa by his family and the hope that he could
be productive in prison without the presence of drugs. See id.at 494–97. The new evidence regarding Ochoa’s
dysfunctional upbringing and mental health evaluations could
reasonably be concluded to not be so strong as to outweigh
the overwhelming aggravating evidence.2 There is far more
than just a “reasonable argument that counsel satisfied
Strickland’s deferential standard.” Richter, 562 U.S. at 105.
There is not nearly enough to justify holding, under
§ 2254(d)’s extremely deferential standard, that the denial of
relief by the California Supreme Court was unreasonable.
Ochoa relies on Porter v. McCollum, 558 U.S. 30 (2009),
James v. Ryan, 679 F.3d 780 (9th Cir. 2012), vacated and
remanded on other grounds, 568 U.S. 1224 (2013), and White
v. Ryan, 895 F.3d 641 (9th Cir. 2018), to support his claim. In
all three cases, the appellate court’s review of the prejudice
determination was de novo, without AEDPA deference.
Porter, 558 U.S. at 39; James, 679 F.3d at 803–04; White,
895 F.3d at 671. Thus, they “offer no guidance with respect
to whether a state court has unreasonably determined that
prejudice is lacking.” Pinholster, 563 U.S. at 202; see
Richter, 562 U.S. at 101 (“[A]n unreasonable application of
federal law is different from an incorrect application of
federal law.” (citation omitted)).
2
That the jury deliberated for only approximately five hours suggests
that additional mitigating evidence of dubious strength would not have
made a difference. Cf. United States v. Velarde-Gomez, 269 F.3d 1023,
1036 (9th Cir. 2001) (en banc) (“Longer jury deliberations weigh against
a finding of harmless error [because l]engthy deliberations suggest a
difficult case.” (internal quotation marks and citation omitted)).
36 OCHOA V. DAVIS
Even if the performance of trial counsel was deficient,
which, as we discuss briefly below, is far from clear, the
California Supreme Court’s determination that the alleged
deficiency did not cause prejudice to Ochoa was not
unreasonable. Pinholster, 563 U.S. at 200–02; see also id.at 197–98; Richter, 562 U.S. at 101–03, 111–13; Woodford,
537 U.S. at 26–27 (concluding the California Supreme
Court’s decision was not objectively unreasonable when it
determined the circumstances of the crime and prior offenses
outweighed the potential mitigating evidence of a “troubled
family background”).
b. Deficiency
Trial counsel’s performance was deficient if, considering
all the circumstances, it “fell below an objective standard of
reasonableness . . . under prevailing professional norms.”
Strickland, 466 U.S. at 688. A federal court will only overturn
a state court’s determination if that determination was
unreasonable. See Richter, 562 U.S. at 105. Counsel’s
strategic choices are “virtually unchallengeable” and
generally should not be evaluated in hindsight. See
Strickland, 466 U.S. at 689–90. Instead, courts should “focus
on whether the investigation supporting counsel’s decision
not to introduce mitigating evidence of [petitioner’s]
background was itself reasonable.” Wiggins, 539 U.S. at 523
(citing Strickland, 466 U.S. at 691).
We agree with the district court that the California
Supreme Court was not unreasonable in determining that the
mitigation case presented by trial counsel was not
unreasonable, even in light of the new information. Ochoa,
2016 WL 3577593, at *67–69. We further agree that it was
not unreasonable for the California Supreme Court to
OCHOA V. DAVIS 37
conclude that trial counsel conducted an adequate
investigation3 and that no red flags existed to cue trial counsel
to conduct a further investigation. Id. at *69.
The California Supreme Court’s determination that the
Strickland claim was meritless was not unreasonable. Richter,
562 U.S. at 105. The California Supreme Court’s denial of
this claim was not an unreasonable application of clearly
established law or an unreasonable determination of the facts
in light of the evidence presented.
C. Eighth Amendment Claim Based on Failures of Trial
Counsel
Ochoa asserts that his death sentence is unconstitutionally
unreliable because his trial counsel failed to present the
additional mitigation evidence outlined in the ineffective
assistance of counsel claim above. In doing so, he essentially
presents his ineffective assistance of counsel argument under
a different constitutional label. He argues that the sentence is
legally infirm and violates his Eighth Amendment right
because the jury’s verdict was not based on consideration of
all the available mitigating evidence and that was not,
therefore, “a reliable finding of death.” The California
Supreme Court summarily denied this claim on the merits
without explanation. In re Ochoa, 1998 Cal. LEXIS 7406, at
3
Ochoa’s trial counsel completed the type and depth of investigation
our case law requires. See Summerlin v. Schriro, 427 F.3d 623, 630–31
(9th Cir. 2005) (en banc) (discussing a 1982 trial). As shown by the
penalty phase case, his trial counsel investigated Ochoa’s history of drug
abuse, looked at his prior criminal history, inquired with family and
neighbors about his upbringing, and examined his mental health reports.
This investigation did not reveal the degree of the family dysfunction
Ochoa now alleges.
38 OCHOA V. DAVIS
*1; In re Ochoa, 2003 Cal. LEXIS 2047, at *1. The district
court concluded that the claim was also barred as the right
alleged had not previously been recognized by the Supreme
Court. Ochoa, 2016 WL 3577593, at *72–73.
As we determined that the California Supreme Court did
not unreasonably decide that Ochoa’s counsel was not
ineffective under Strickland, this claim fails. Ochoa was not
prejudiced such that his federal constitutional right to counsel
was violated. It follows that his punishment is not a violation
of his Eighth Amendment right based on his trial counsel’s
performance and the mitigation evidence they presented or
failed to present.
Ochoa does not provide support for his legal theory that
ineffective assistance of counsel can support a separate
Eighth Amendment claim. No Supreme Court case has been
identified that invalidated a death sentence on Eighth
Amendment grounds on the basis that counsel was ineffective
for failing to present additional mitigation evidence. The
seven Supreme Court cases cited by Ochoa do not support
such a rule. See Deck v. Missouri, 544 U.S. 622, 632–33
(2005) (routine use of visible shackles during the capital
penalty phase is prohibited); Thompson v. Oklahoma,
487 U.S. 815, 838 (1988) (imposition of the death penalty on
juvenile offenders under sixteen is unconstitutional); Johnson
v. Mississippi, 486 U.S. 578, 584–87 (1988) (death sentence
based in part on an impermissible or irrelevant factor is
unconstitutional); Spaziano v. Florida, 468 U.S. 447, 457–65
(1984) (judge may overrule a jury’s recommendation of life
in prison), overruled by Hurst v. Florida, 577 U.S. 92 (2016);
Lockett v. Ohio, 438 U.S. 586, 604–05 (1978) (a state cannot
preclude a sentencer from considering any aspect of the
defendant’s character or the circumstances of the offense);
OCHOA V. DAVIS 39
Gardner v. Florida, 430 U.S. 349, 358–62 (1977) (Stevens,
J., plurality opinion) (use of information which a capital
defendant has no opportunity to deny or explain is prohibited
in penalty proceedings); Woodson v. North Carolina,
428 U.S. 280, 303–05 (1976) (Stewart, J., plurality opinion)
(individualized consideration of the offender and the
circumstances of each case is required in capital sentencing).
Although those cases do indicate a general principle that the
determination that the death sentence is appropriate must be
reliably made, none of them supports the argument made here
by Ochoa. See Saffle v. Parks, 494 U.S. 484, 491 (1990)
(“Even were we to agree with [petitioner’s] assertion that our
decisions . . . inform, or even control or govern, the analysis
of his claim, it does not follow that they compel the rule that
[petitioner] seeks.”).
In addition, this claim is barred because the right asserted
by Ochoa had not been recognized by the Supreme Court
prior to the time his conviction became final. In Teague v.
Lane, the Supreme Court explained that new rules of criminal
procedure generally do not apply retroactively to cases where
the conviction had already become final on direct review at
the time the new rule was decided. 489 U.S. 288, 316 (1989).4
“A new rule is defined as a rule that . . . was not dictated by
precedent existing at the time the defendant’s conviction
became final.” Whorton v. Bockting, 549 U.S. 406, 416
4
The Teague and AEDPA inquiries are distinct. “The retroactivity
rules that govern federal habeas review on the merits—which include
Teague—are quite separate from the relitigation bar imposed by AEDPA;
neither abrogates or qualifies the other.” Greene v. Fisher, 565 U.S. 34,
39 (2011). However, there is some overlap. It is commonly accepted that
“[a]n ‘old rule’ under Teague generally constitutes clearly established law
for purposes of AEDPA.” Ponce v. Felker, 606 F.3d 596, 604 (9th Cir.
2010).
40 OCHOA V. DAVIS
(2007) (quoting Saffle, 494 U.S. at 488) (internal quotation
marks omitted); see Jones v. Davis, 806 F.3d 538, 550–51
(9th Cir. 2015) (cautioning courts from defining a rule for
purposes of a Teague inquiry at too high a level of generality
and recognizing that if no case has applied appellant’s “rule,”
it “strongly suggest[s] that the rule is novel”). “[A] holding is
not so dictated . . . unless it would have been apparent to all
reasonable jurists.” Chaidez v. United States, 568 U.S. 342,
347 (2013) (internal quotation marks and citation omitted).
Attempts to introduce new rules of criminal procedure on
collateral review are typically “Teague barred,” meaning they
fail. There is one limited exception: “the rule is substantive.”5
Bockting, 549 U.S. at 416; see Edwards v. Vannoy, 141 S. Ct.
1547, 1560 (2021) (eliminating the watershed rule exception).
To be a substantive rule, it must “place an entire category of
primary conduct beyond the reach of the criminal law” or
“prohibit imposition of a certain type of punishment for a
class of defendants because of their status or offense.” See
Sawyer, 497 U.S. at 241. As the rule Ochoa claims was not
established before his direct appeal became final, it is barred
by Teague unless it falls into the exception. As it is not a
substantive rule, this claim is barred by Teague.
5
“The scope of the Teague exception[] must be consistent with the
recognition that ‘[a]pplication of constitutional rules not in existence at the
time a conviction became final seriously undermines the principle of
finality which is essential to the operation of our criminal justice system.’”
Sawyer v. Smith, 497 U.S. 227, 242 (1990) (quoting Teague, 489 U.S.
at 309).
OCHOA V. DAVIS 41
Ochoa fails to demonstrate that the California Supreme
Court’s conclusion was contrary to, or an unreasonable
application of, clearly established Supreme Court precedent
because there was no such precedent. See 28 U.S.C.
§ 2254(d)(1).
D. Eighth Amendment Family Sympathy Evidence Claim
Ochoa contends that his right to be free from cruel and
unusual punishment under the Eighth and Fourteenth
Amendments was violated when, during the penalty phase of
the proceedings, the trial court: (1) refused to instruct the jury
that it could consider sympathy for Ochoa’s family;
(2) permitted the prosecutor to argue that family sympathy
was not an appropriate mitigating factor; and (3) prohibited
him from arguing that family sympathy evidence was an
appropriate mitigating factor. The California Supreme Court
held that the trial court did not err because: (1) no clearly
established federal law required the court to instruct the jury
as to family sympathy; (2) neither the trial court’s instructions
nor the prosecutor’s argument precluded the jury from
considering family sympathy evidence as indirect evidence of
Ochoa’s character or the circumstances of the offenses
charged; and (3) the court did not prohibit Ochoa from
arguing that family sympathy was relevant. Ochoa, 966 P.2d
at 504–06. The district court expressed agreement with the
California Supreme Court’s reasoning. Ochoa,
2016 WL 3577593, at *78. We also agree.
1. Legal Standard
The Eighth Amendment’s prohibition on cruel and
unusual punishment requires that the sentencer be permitted
to consider the “character and record of the individual
42 OCHOA V. DAVIS
offender and the circumstances of the particular offense as a
constitutionally indispensable part of the process of inflicting
the penalty of death.” Woodson, 428 U.S. at 304. “[T]he
sentencer . . . [must] not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.”
Lockett, 438 U.S. at 604; see Eddings v. Oklahoma, 455 U.S.
104, 114 (1982) (recognizing that the sentencer may not be
precluded from considering “any relevant mitigating
evidence”). Any such limitation on relevant mitigating
evidence “creates the risk that the death penalty will be
imposed in spite of factors which may call for a less severe
penalty” and is unconstitutional. Lockett, 438 U.S. at 605.
2. Jury Instruction and Argument Regarding Family
Sympathy
At the penalty phase, Ochoa offered a proposed jury
instruction related to the consideration of sympathy as a
mitigating factor: “You may take sympathy for the defendant
and his family into account in deciding whether to extend
mercy to the defendant.” See Ochoa, 966 P.2d at 504.The
prosecutor objected. In ruling on the objection, the trial court
stated that it was not aware of any authority providing that a
jury should consider family sympathy, but the court also
noted that it was unaware of authority prohibiting the jury
from considering family sympathy. Id. The trial court
concluded that “the law [wa]s that the defendant should be
punished based upon his individual record, his individual
background and his individual involvement.” Id. at 505.
Accordingly, the trial court struck the words “and his family”
from Ochoa’s proposed instruction. See id. at 504. The court
gave a revised instruction: “You may take sympathy for the
OCHOA V. DAVIS 43
defendant into consideration in determining whether or not to
extend mercy to the defendant.” Id.In its closing argument at the penalty phase, the
prosecutor discussed the meaning of the sympathy
instruction:
First of all, with regard to sympathy for the
defendant, if there be any, if you feel that it is
appropriate, one of the things that I want to
point out to you and you can consider is that
sympathy for the defendant means exactly
that. It does not mean sympathy for his
family.[6] It does not mean sympathy for the
victim or the victim’s family. Now, it’s
obvious that we have seen some of the
defendant’s family members come in here and
testify, and they are very touched. They are
very emotional. They are very hurt, and that is
understandable. But your decision is not based
on whether they feel bad about what happened
any more than your decision can take into
account the loss to the victim’s family,
because that is not what your job is. Your job
is to decide what you’ve heard here and what
the defendant has done and what his
6
At the time of Ochoa’s trial and penalty phase, Booth v. Maryland,
482 U.S. 496 (1987), in which the Supreme Court held that “the
introduction of a [victim impact statement] at the sentencing phase of a
capital murder trial violates the Eighth Amendment,” id. at 509, was still
good law. The prosecutor’s statement with respect to considering
sympathy for the victim, therefore, was proper at the time. The Supreme
Court subsequently overruled Booth in Payne v. Tennessee, 501 U.S. 808,
830 (1991).
44 OCHOA V. DAVIS
background is and whether he deserves that
consideration.
Ochoa did not object to the argument.
3. California Supreme Court Decision
On direct appeal, the California Supreme Court rejected
Ochoa’s arguments that the jury was unconstitutionally
precluded from considering family sympathy evidence as a
mitigating factor in the penalty phase. Ochoa, 966 P.2d
at 504–06. The California Supreme Court noted that there
was no federal or state law requiring that the trial court
instruct jurors that they may consider family sympathy
evidence as a mitigating factor. Id. at 505.7 The court
recognized that, under federal law, a sentencer could not be
precluded “from considering and giving effect to evidence
relevant to the defendant’s background or character or to the
circumstances of the offense that mitigate against imposing
the death penalty.” Id. at 506 (quoting Penry v. Lynaugh,
492 U.S. 302, 318 (1989)). The court acknowledged that
testimony from a defendant’s family members could be
relevant mitigating evidence, if the testimony “illuminate[d]
some positive quality of the defendant’s background or
character.” Id.The California Supreme Court also considered whether
the jury was precluded from considering any evidence of
Ochoa’s character or the circumstances of his offense,
including relevant indirect evidence offered through the
7
The California Supreme Court held, as a matter of first impression,
that “sympathy for a defendant’s family is not a matter that a capital jury
can consider in mitigation.” Ochoa, 966 P.2d at 506.
OCHOA V. DAVIS 45
testimony of Ochoa’s family. First, the court noted that the
jury heard evidence of the emotional impact of a possible
death sentence on Ochoa’s family. Id. at 505–06. Further, the
court examined the other instructions the trial court gave
regarding what constituted a “mitigating factor,” noting that
those instructions “did not forbid him to argue to the jurors to
take sympathy for his family into account.” Id. at 504.
Specifically, the court observed that the trial court instructed
the jury that it could consider “unlimited” mitigating factors
and explained that the “[m]itigating factors provided in the
instructions [were] merely examples of some of the factors”
the jury could consider in deciding whether a death sentence
was warranted. Id. The California Supreme Court concluded
that there was no federal constitutional violation because
neither the jury instructions nor the prosecutor’s argument
prevented the jury from considering evidence relevant to
Ochoa’s character or the circumstances of the offense
charged. Id. at 506.
4. Analysis
a. Jury Instructions
Ochoa argues that the Eighth Amendment demands that
jurors be permitted to consider sympathy for a defendant’s
family as a mitigating factor at the penalty phase of a capital
proceeding and asserts that the trial court’s instructions and
the prosecutor’s argument precluded the jury from
considering that evidence.
As the California Supreme Court observed, there was no
clearly established federal law that required the trial court to
instruct the jury that it could consider sympathy for Ochoa’s
family as a mitigating factor at the penalty phase. See Ochoa,
46 OCHOA V. DAVIS
966 P.2d at 505. Although Ochoa relies on Lockett, he has
failed to show how Lockett supports his claim. Lockett
dictates that sentencers cannot be prohibited from considering
any aspect of the defendant’s character or the circumstances
of the offense. 438 U.S. at 604. Ochoa has not demonstrated
that the jury was so prohibited.
The record demonstrates that the jury heard evidence
regarding the impact of the trial on Ochoa’s family and was
given several other instructions that made clear that the jury
could consider any evidence in mitigation. Specifically, the
jurors were instructed by the trial court that they were “free
to assign whatever moral or sympathetic value [they deemed]
appropriate to each and all of the various factors” and was
told that mitigating factors were unlimited and not restricted
to the examples provided in the instructions. Ochoa, 966 P.2d
at 504–05. The trial court further instructed the jury to
consider “[a]ny other circumstance . . . and any sympathetic
or other aspect of the defendant’s character or record that the
defendant offers as a basis for a sentence less than death.” Id.
at 505. The jury was also instructed that it could consider
sympathy for the defendant when determining whether to
extend him mercy. Id. The jury was not instructed to exclude
from its consideration sympathy for Ochoa’s family. Viewing
the instructions collectively, there is no reasonable likelihood
that the jury would have believed it could not consider
Ochoa’s family’s testimony or sympathy for Ochoa’s family
as indirect evidence of Ochoa’s character or the
circumstances of the offense. The California Supreme Court’s
determination that the court’s instructions—or lack
thereof—did not preclude the jury from considering any
evidence of Ochoa’s character or the circumstances of the
offense, was not unreasonable.
OCHOA V. DAVIS 47
b. The Arguments Regarding Family Sympathy
Ochoa argues that his Eighth Amendment and Fourteenth
Amendment rights were further violated when the trial court
permitted the prosecutor to argue that the jury could not
consider sympathy for Ochoa’s family while prohibiting him
from arguing the contrary.
There was no clearly established federal law that
prohibited the prosecutor from arguing that the jury
instruction term “sympathy for the defendant” was limited
and did not mean sympathy for others. Nothing prohibited the
prosecutor from attempting to guide the jury on how to
consider the mitigating evidence it believed was relevant and
decisive. Ochoa did not object to the prosecutor’s argument
regarding family sympathy at trial. Ochoa, 2016 WL
3577593, at *101–03.
Furthermore, the prosecutor’s argument did not preclude
the jury from considering family sympathy evidence. The
prosecutor reminded the jurors that their decision was to be
guided by the jury instructions, which in turn allowed for
consideration of unlimited mitigating factors, and the jury is
presumed to have followed the trial court’s instructions. See
Zafiro v. United States, 506 U.S. 534, 540 (1993); see also
Boyde, 494 U.S. at 384 (“[A]rguments of counsel generally
carry less weight with a jury than do instructions from the
court.”). Nothing in the record supports Ochoa’s contention
that the trial court prohibited defense counsel from arguing
that family sympathy evidence was relevant mitigating
evidence.
Ochoa has not demonstrated that the California Supreme
Court’s determination that Ochoa failed to demonstrate a
48 OCHOA V. DAVIS
constitutional violation under the Eighth and Fourteenth
Amendments was contrary to or constituted an unreasonable
application of clearly established law or amounted to an
unreasonable determination of the facts in light of the
circumstances.
E. Simmons Claim
Ochoa contends that his privilege against self-
incrimination under the Fifth and Fourteenth Amendments, as
set forth in Simmons v. United States, 390 U.S. 377 (1968),
was violated when the trial court considered his suppression
hearing testimony about the night Chandler was killed in
deciding his post-conviction motion for a new trial.
Before trial commenced, Ochoa testified at a hearing on
a motion to suppress his taped confession and the physical
evidence obtained as a result. The trial court denied that
motion. Ochoa, 966 P.2d at 464, 469–70. Following his
conviction and the imposition of a death sentence, Ochoa
moved for a new trial arguing that the prosecutor violated his
right to due process under Brady by failing to disclose
statements from jailhouse informants, as discussed above
at 18–21. The trial court denied Ochoa’s motion for a new
trial, relying, in part, on Ochoa’s suppression hearing
testimony.
The California Supreme Court concluded that the trial
court did not err in considering Ochoa’s suppression hearing
testimony in deciding the motion for a new trial and that,
even if it did err, the error was harmless beyond a reasonable
doubt. Ochoa, 966 P.2d at 518–19. The district court
concluded that the California Supreme Court’s denial of
Ochoa’s claim on the merits did not amount to an
OCHOA V. DAVIS 49
unreasonable application of clearly established federal law
because there was no clearly established federal law holding
that suppression hearing testimony cannot be considered by
a trial court in deciding a motion for a new trial. Ochoa, 2016
WL 3577593, at *30. The district court also concluded that
Ochoa’s claim was barred under Teague because Ochoa
sought to establish a new rule of constitutional jurisprudence.
Id. (citing Teague, 489 U.S. at 299–301). We agree with the
district court.
1. Legal Standard
In Simmons, the Supreme Court held that “when a
defendant testifies in support of a motion to suppress
evidence on Fourth Amendment grounds, his testimony may
not thereafter be admitted against him at trial on the issue of
guilt unless he makes no objection,” regardless of whether the
suppression motion is ultimately successful. See 390 U.S. at
394. In reaching this conclusion, the Court rejected the
premise that the use of suppression hearing testimony cannot
be a violation of the Fifth Amendment’s prohibition on
compelled testimony because it is “voluntary.” Id. at 393–94.
Although the Court recognized that “testimony is not always
involuntary as a matter of law simply because it is given to
obtain a benefit,” it explained that the voluntariness of
testimony is called into question when “the ‘benefit’ to be
gained is that afforded by another provision of the Bill of
Rights.” Id. at 394. The Court concluded that it is
constitutionally intolerable to force a defendant to surrender
his Fifth Amendment privilege against self-incrimination to
vindicate his Fourth Amendment right to exclude unlawfully
obtained evidence. Id.50 OCHOA V. DAVIS
2. Suppression Hearing and Denial of Motion for a New
Trial
During a voluntary polygraph examination, Ochoa
confessed to killing Chandler. Ochoa later offered to take
officers to recover the knife used in Chandler’s murder and
gave officers a taped confession. Before Ochoa’s trial
commenced, Ochoa moved to suppress his taped confession
and exclude evidence relating to the knife that police found
as a result of the confession. Ochoa, 966 P.2d at 464.
The trial court held a suppression hearing to consider
Ochoa’s motion. Id. At the hearing, Ochoa argued that his
confession was involuntary, that he was not apprised of his
Miranda8 rights to counsel and to remain silent prior to the
voluntary polygraph examination, that he did not understand
his right to counsel after the Miranda admonition, and that his
confession was offered in exchange for “false promises of
lenity.” Id. at 464–65. On cross-examination, Ochoa testified
that he did not know if he killed Chandler. Id. at 468. On
redirect, Ochoa explained that when he testified that he did
not know if he killed Chandler, he meant that he did not kill
her. Id.Ochoa then gave testimony regarding his version of
events the night Chandler was killed. Id. at 468–69. Ochoa
stated that he saw Chandler walk toward the school with a
man and followed them because he needed to get something
back from the man. Id. at 468. Ochoa testified that he was
intoxicated on beer and cocaine. Id. Ochoa stated that, at the
school, he saw the man “swinging in an upward motion.” Id.He said that when he approached the man, the man handed
8
Miranda v. Arizona, 384 U.S. 436 (1966).
OCHOA V. DAVIS 51
him a knife and asked for help. Id. Ochoa testified that he
helped drag and hide Chandler’s body. Id. Ochoa asserted
that when he confessed to stabbing Chandler, he had no
memory of actually doing so. Id. at 469. On recross-
examination Ochoa said that he took the knife from the man
because he did not know at that time that anyone had been
killed. Id. at 469.
The trial court denied Ochoa’s suppression motion on all
grounds. Id. at 469–70. The trial proceeded and the
prosecutor introduced Ochoa’s taped confession in its case-
in-chief. Id. at 461.
After the jury returned its verdict and imposed a death
sentence, Ochoa filed a motion for a new trial, arguing that he
was denied due process of law under Brady when the
prosecutor failed to disclose the statements of jailhouse
informants implicating Ramage in Chandler’s murder. The
trial court denied Ochoa’s Brady motion for a new trial,
concluding that the state’s failure to disclose the informants’
statements did not constitute a denial of due process or result
in an unfair trial. Id. at 516–17. The trial court found that the
informants’ statements regarding Ramage’s confession were
not credible because all of the record evidence indicated that
Ochoa acted alone. Id. The court compared the jailhouse
informants’ statements to the story Ochoa told at his
suppression hearing that another man killed Chandler. The
trial court concluded that, like the informants’ testimony,
Ochoa’s suppression hearing story was “inherently not
credible” because it was entirely inconsistent with the
physical evidence and his taped confession, which, by
contrast, was consistent with the physical evidence. In sum,
the trial court determined that the prosecutor’s failure to
disclose the jailhouse informants’ statements did not
52 OCHOA V. DAVIS
prejudice Ochoa because the allegations that someone else
was involved in Chandler’s murder were simply not credible
given the overwhelming evidence that Ochoa was guilty and
acted alone.
3. California Supreme Court Decision
The California Supreme Court concluded that the trial
court did not err in considering Ochoa’s suppression hearing
testimony. Ochoa, 966 P.2d at 518–19. As he later did in his
habeas petition, on his direct appeal to the California
Supreme Court Ochoa argued that the trial court’s
consideration of his suppression hearing testimony was
problematic because it was elicited on cross-examination over
his objection. Id. The California Supreme Court determined
that, contrary to Ochoa’s contentions, the testimony in
question was offered by Ochoa on redirect. Id. at 518.
Accordingly, the court reasoned that the prosecutor did not
violate Ochoa’s right against self-incrimination and that the
trial court did nothing more than what Ochoa asked, to
consider “all the papers and records on file” in deciding
Ochoa’s motion for a new trial. Id. In the alternative, the
court concluded that any error was harmless beyond a
reasonable doubt because the trial court would have denied
Ochoa’s motion for a new trial even if it had not considered
Ochoa’s suppression hearing testimony. Id. at 518–19.
4. Analysis
At the outset, Ochoa asserts that because the California
Supreme Court did not cite Simmons, it failed to address his
constitutional claim on the merits and thus, de novo review,
rather than AEDPA deference, is appropriate. This argument
lacks merit. The Supreme Court has repeatedly explained that
OCHOA V. DAVIS 53
state courts are not required to cite—or even be aware
of—Supreme Court precedent so long as the state court
decision is not contrary to that precedent. See Early, 537 U.S.
at 8; Bell v. Cone, 543 U.S. 447, 455 (2005) (“Federal courts
are not free to presume that a state court did not comply with
constitutional dictates on the basis of nothing more than a
lack of citation.”). We presume that the state court
adjudicated Ochoa’s claim on the merits. See Richter,
562 U.S. at 99. Ochoa has not rebutted, and cannot rebut, this
presumption. The California Supreme Court directly
considered and adjudicated the merits of Ochoa’s
constitutional claim regarding his suppression hearing
testimony, as demonstrated by its conclusion that there was
no violation of the right against self-incrimination and that
even if there was an error, it was harmless beyond a
reasonable doubt. See Ochoa, 966 P.2d at 518–19. Thus, we
proceed to review the California Supreme Court’s merits
decision, applying AEDPA deference.
We agree with the district court’s determination that the
California Supreme Court’s decision on the merits regarding
Ochoa’s suppression hearing testimony was not contrary to or
an unreasonable application of Simmons or any other clearly
established federal law. Ochoa, 2016 WL 3577593, at *31.
Simmons does not control here. Simmons bars the admission
of a defendant’s suppression hearing testimony as evidence
against the defendant at trial on the issue of guilt. 390 U.S. at
394. Simmons does not dictate that suppression hearing
statements cannot be considered in proceedings outside the
guilt phase or for purposes other than establishing substantive
guilt at trial. The Supreme Court has explicitly left open “the
proper breadth of the Simmons privilege,” acknowledging that
it has “not decided whether Simmons precludes the use of a
defendant’s testimony at a suppression hearing to impeach his
54 OCHOA V. DAVIS
testimony at trial.” United States v. Salvucci, 448 U.S. 83,
93–94 & n.8 (1980).
As there is no clearly established federal law that
prohibited the trial court from considering Ochoa’s testimony
in deciding his post-conviction motion for a new trial, the
California Supreme Court’s decision cannot be deemed an
objectively unreasonable application of clearly established
federal law. See Ponce, 606 F.3d at 604 (citing Wright v. Van
Patten, 522 U.S. 120, 126 (2008) (per curiam)); see Schriro
v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under
AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher
threshold.”).
Even if Ochoa had demonstrated a constitutional
violation, he has failed to show that the California Supreme
Court’s harmlessness determination was unreasonable. See
Davis v. Ayala, 576 U.S. 257, 269–70 (2015) (“When a
Chapman9 [harmlessness] decision is reviewed under
AEDPA, a federal court may not award habeas relief under
§ 2254 unless the harmlessness determination itself was
unreasonable.” (internal quotation marks and citation
omitted)). The California Supreme Court reasonably
concluded that the trial court had other valid reasons for
denying Ochoa’s motion for a new trial. See supra
pp. 17–26.10
9
Chapman v. California, 386 U.S. 18 (1967).
10
Moreover, the trial court’s consideration of Ochoa’s suppression
hearing statements was arguably generous to him. Effectively, what the
trial court did was to consider whether the improperly withheld statements
OCHOA V. DAVIS 55
Finally, we also agree with the district court that Ochoa’s
Simmons claim is Teague barred. See Ochoa, 2016 WL
3577593, at *30. In arguing that Simmons precluded the trial
court’s consideration of his suppression hearing testimony in
deciding his post-conviction motion, Ochoa seeks to expand
Simmons and establish a new rule of constitutional
jurisprudence on collateral review. Teague precludes the
application of Ochoa’s proposed rule retroactively in his
federal habeas proceedings. See 489 U.S. at 299–301.
F. Uncertified Claim: Penalty Phase Burden of Proof
Due Process Claim
Ochoa seeks to expand the certificate of appealability by
raising an uncertified issue in his Opening Brief. See 9th Cir.
R. 22-1(e). Specifically, Ochoa argues that his right to due
process, as set forth in In re Winship, 397 U.S. 358 (1970),
and Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny, was violated because the penalty phase jury
instructions failed to direct the jury that it was required to
find, beyond a reasonable doubt, that aggravating
circumstances existed and outweighed the mitigating
circumstances. The state was not required to address Ochoa’s
uncertified claim in its answering brief and did not do so.
could have been deemed material for Brady purposes based on the
alternative factual scenario presented in Ochoa’s suppression hearing
statements. It is difficult to see how Ochoa was prejudiced by the trial
court’s decision to expansively consider, and reject, this alternative theory
of Brady prejudice. Ochoa’s argument that Simmons precluded such
consideration amounts to a contention that the trial court should have
omitted that portion of its Brady analysis, which would still leave it
wholly adverse to Ochoa.
56 OCHOA V. DAVIS
Under AEDPA, certificates of appealability are governed
by 28 U.S.C. § 2253(c). To obtain a certificate of
appealability, a petitioner “must make a substantial showing
of the denial of a constitutional right,” which includes
“showing that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’”
Slack, 529 U.S. at 484 (quoting Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983), superseded by statute on other
grounds). The district court considered and declined to issue
a certificate of appealability as to any of Ochoa’s claims.
Ochoa, 2016 WL 3577593, at *144. Ochoa subsequently
moved this court for a certificate of appealability on seven
claims. Although we granted Ochoa’s motion as to five of
those claims, we specifically declined to certify this claim,
concluding that the accuracy of the district court’s resolution
of this claim was not reasonably debatable. Having reviewed
the Opening Brief’s argument as to this uncertified claim, we
reach the same conclusion. See McKinney v. Arizona,
140 S. Ct 702, 707–08 (2020). Accordingly, we decline to
expand the certificate of appealability.
IV. Conclusion
We affirm the district court’s denial of the Petition. We
also decline to expand the certificate of appealability as to
Ochoa’s uncertified claim.
AFFIRMED.