Robert Jurado v. Ron Davis ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT JURADO, No. 18-99009
Petitioner-Appellant,
D.C. No.
v. 3:08-cv-01400-
JLS-JMA
RONALD DAVIS, Warden, San
Quentin State Prison,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted June 23, 2021
Pasadena, California
Filed September 10, 2021
Before: Sidney R. Thomas, Chief Judge, and Susan P.
Graber and Richard R. Clifton, Circuit Judges.
Opinion by Chief Judge Thomas
2 JURADO V. DAVIS
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court’s judgment denying
Robert Jurado’s habeas corpus petition challenging his first-
degree murder conviction and death sentence.
The panel held that the California Supreme Court’s
conclusion that the Double Jeopardy Clause did not bar
further prosecution of Jurado was not an unreasonable
application of clearly established federal law or an
unreasonable determination of the facts within the meaning
of 28 U.S.C. § 2254(d). After Jurado’s indictment, the state
trial court granted Jurado’s motion to set aside the lying-in-
wait special circumstance based on insufficiency of the
evidence, and Jurado pleaded guilty to all pending charges.
The California Court of Appeal held that the special
circumstance had been improperly dismissed, and that the
double jeopardy bar posed no bar to its reinstatement, relying
on Ohio v. Johnson, 467 U.S. 493 (1984). The California
Supreme Court denied Jurado’s petition for review. Jurado
then withdrew his guilty plea, entered a plea of not guilty, and
was convicted at trial. The panel wrote that, as in Johnson,
the Double Jeopardy Clause is not implicated because Jurado
was not subject to multiple punishments for the same offense,
and the special circumstance was an included part and parcel
of the initial prosecution.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JURADO V. DAVIS 3
The panel held that the California Supreme Court’s
conclusion that the admission at trial of the videotaped
conditional examination of Brian Johnsen (the victim’s
boyfriend at the time of her murder) did not violate Jurado’s
rights to due process and to a reliable penalty determination
was not an unreasonable determination of the facts within the
meaning of 18 U.S.C. § 2254(d)(2), where the prosecutor
submitted a declaration that Johnsen’s life would be at risk if
he testified, and Jurado and his counsel had a full and fair
opportunity to cross-examine Johnsen during the conditional
examination.
The panel held that the California Supreme Court’s
conclusion that Jurado’s constitutional rights were not
violated by Steven Baldwin’s testimony regarding Denise
Shigemura’s out-of-court statements was not an unreasonable
determination of the facts or an unreasonable application of
clearly established facts. The panel wrote that the California
Supreme Court did not rely on an unreasonable determination
of the facts or an unreasonable application of clearly
established federal law in concluding that the trial court’s
admission of Shigemura’s pre-crime statement amounted to
harmless error, or that her post-crime statement was properly
admitted as an adoptive admission. The panel wrote that
admission of the post-crime statement likewise did not violate
Jurado’s clearly established Confrontation Clause rights.
The panel held that the California Supreme Court’s
conclusion that the trial court’s penalty-phase exclusion of
Jurado’s videotaped confession to police officers did not
violate Jurado’s right to a fair trial and reliable penalty
determination, because capital defendants have no
constitutional right to the admission of evidence lacking
trustworthiness, did not rest on an unreasonable determination
4 JURADO V. DAVIS
of the facts or an unreasonable application of clearly
established federal law.
The panel held that the California Supreme Court’s
conclusion that the admission at the penalty phase that the
victim was seventeen weeks pregnant at the time she was
killed did not violate Jurado’s constitutional to right to a
fundamentally fair sentencing hearing was not contrary to, or
an unreasonable application of, Supreme Court precedent.
The panel held that the California Supreme Court’s
conclusion that Jurado’s rights to due process, a fair penalty
trial, and a reliable sentence were not violated by the
admission of evidence concerning Jurado’s prior incidents of
violence was not contrary to and did not involve an
unreasonable application of clearly established federal law.
The panel held that the California Supreme Court’s
rejection of Jurado’s challenge to the jury instructions was
not contrary to or an unreasonable application of clearly
established federal law. The panel wrote that the trial court’s
failure to instruct the jury sua sponte on the law of assault and
aiding and abetting liability did not so infect the sentencing
proceedings such that Jurado’s sentence violates due process.
The panel wrote that even assuming that counsel’s failure to
request the instruction constituted ineffective assistance,
Jurado cannot demonstrate prejudice because the state court
reasonably could have concluded that the evidence of aiding
and abetting was overwhelming.
The panel held that the California Supreme Court’s
rejection of Jurado’s ineffective assistance of counsel claim
based on his attorney’s concession that Jurado intentionally
JURADO V. DAVIS 5
killed the victim was not contrary to or an unreasonable
application of clearly established federal law.
The panel held that the California Supreme Court’s
rejection of Jurado’s claim of ineffective assistance of
counsel at the penalty phase was not contrary to or an
unreasonable application of clearly established federal law.
The panel did not need to reach the issue of whether
counsel’s performance was deficient, as Jurado has not
adequately established that any of counsel’s alleged
deficiencies resulted in prejudice within the meaning of
Strickland v. Washington, 466 U.S. 668 (1984).
Finally, the panel held that the district court did not abuse
its discretion in denying Jurado’s request for evidentiary
development, discovery, and an evidentiary hearing.
COUNSEL
Stephen M. Lathrop (argued), Lathrop & Villa, Rolling Hills
Estates, California; Robert E. Boyce (argued), Boyce &
Schaefer, San Diego, California; for Petitioner-Appellant.
Marvin E. Mizell (argued) and Ronald A. Jakob, Deputy
Attorneys General; Ronald S. Matthias, Senior Assistant
Attorney General; Rob Bonta, Attorney General; Attorney
General’s Office, San Diego, California; for Respondent-
Appellee.
6 JURADO V. DAVIS
OPINION
THOMAS, Chief Judge:
Robert Jurado, a California inmate on death row, appeals
the district court’s denial of his petition for writ of habeas
corpus. We review de novo a district court’s denial of a
habeas corpus petition and review for clear error any factual
findings made by the district court. Hurles v. Ryan, 752 F.3d
768, 777 (9th Cir. 2014). We review for abuse of discretion
a district court’s decision whether to conduct an evidentiary
hearing. Stanley v. Cullen, 633 F.3d 852, 863 (9th Cir. 2011).
Because Jurado’s petition was filed in the district court
after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), “we may grant
habeas relief only if the state court’s decision (1) ‘was
contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme
Court . . . ; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’” Davis v.
Woodford, 384 F.3d 628, 637 (9th Cir. 2004)(quoting
28 U.S.C. § 2254(d)).
“A state court decision is ‘contrary to’ clearly established
Supreme Court precedent if the state court applies a rule that
contradicts the governing law set forth in Supreme Court
cases or if the state court confronts a set of facts materially
indistinguishable from those at issue in a decision of the
Supreme Court and, nevertheless, arrives at a result different
from its precedent.” Lambert v. Blodgett, 393 F.3d 943, 974
(9th Cir. 2004). A state court’s decision is an “unreasonable
application” of federal law if it “identifies the correct
JURADO V. DAVIS 7
governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Lockyer v. Andrade, 538 U.S. 63, 75
(2003) (quotations and citation omitted). The Supreme Court
has explained that the exceptions based on “clearly
established” law refer only to “the holdings, as opposed to the
dicta, of th[e] Court’s decisions as of the time of the relevant
state-court decision.” (Terry) Williams v. Taylor, 529 U.S.
362, 412 (2000).
With respect to § 2254(d)(2) claims, “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). If
“‘[r]easonable minds reviewing the record might disagree’
about the finding in question, ‘on habeas review that does not
suffice to supersede the trial court’s . . . determination.’” Id.(quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)).
“[E]ven a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Harrington
v. Richter, 562 U.S. 86, 102 (2011). “If this standard is
difficult to meet, that is because it was meant to be.” Id. As
amended by AEDPA, § 2254(d) “preserves authority to issue
the writ [only] in cases where there is no possibility
fairminded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents. It goes
no further.” Id. Under AEDPA, then, habeas corpus is a
guard only “against extreme malfunctions in the state
criminal justice systems,” and is not a means for “ordinary
error correction through appeal.” Id. at 103 (quoting Jackson
v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J.,
concurring in judgment)).
8 JURADO V. DAVIS
Applying these standards, we affirm the judgment of the
district court.
I
On May 17, 1991, Teresa Holloway’s body was found off
of Highway 163 in San Diego County. The cause of death
was determined to be “blunt force head injuries and
strangulation.”
According to the evidence adduced at trial, Petitioner
Robert Jurado and his roommate, Denise Shigemura, hatched
a plan to kill a drug dealer named Doug Mynatt, with whom
the two had an ongoing dispute. Jurado and Shigemura
became concerned that their acquaintance and Mynatt’s
former roommate, Teresa Holloway, would reveal their plan.
Jurado, Shigemura, and Jurado’s girlfriend, Anna Humiston,
apparently killed Holloway in a car by strangling her with an
18-inch weed-eating cord and beating her with the car’s
scissor-jack. Jurado was interviewed by police soon after the
murder, and he confessed to killing Holloway, cooperated
with law enforcement, and took police to the scene of the
crime where they located the tire jack.
Jurado was indicted on one count of conspiracy to commit
murder and one count of first degree murder committed while
lying in wait, a special circumstance that made him eligible
for the death penalty. Jurado was tried separately from his
co-defendants, Shigemura and Humiston. The jury convicted
him of first degree murder and determined that death was the
appropriate penalty. After denying a motion for new trial and
to modify the verdict, the trial court sentenced Jurado to
death.
JURADO V. DAVIS 9
The California Supreme Court affirmed the judgment in
People v. Jurado, 38 Cal. 4th 72 (2006). Jurado petitioned
for writ of certiorari, and the Supreme Court of the United
States denied Jurado’s petition in Jurado v. California,
549 U.S. 956 (2006). While his direct appeal was pending,
Jurado filed a state habeas petition in the California Supreme
Court, which was denied without an evidentiary hearing.
Jurado’s first federal habeas petition was stayed in order
to allow him to exhaust his claims in state court. The
California Supreme Court subsequently denied his second
state petition.
The district court denied habeas relief on Jurado’s second
amended federal habeas petition, and also denied his motions
for investigation, evidentiary development, and an evidentiary
hearing. The district court subsequently issued a certificate
of appealability, and stayed execution pending appeal. This
timely appeal followed.
II
A
The California Supreme Court’s conclusion that the
Double Jeopardy Clause did not bar further prosecution of
Jurado was not an unreasonable application of clearly
established federal law or an unreasonable determination of
the facts within the meaning of § 2254(d).
After Jurado’s indictment, the state trial court granted
Jurado’s motion to set aside the special circumstance based
on insufficiency of the evidence, and Jurado immediately
pleaded guilty to all pending charges. The prosecutor
10 JURADO V. DAVIS
acknowledged that Jurado “can plead to the face at any time,”
but indicated that “the People would not be signing the
change of plea form,” and specified that “there’s a possibility
that the People may take a writ on the ruling by the court.”
Additionally, the prosecutor noted that he “wanted counsel to
be aware that the plea could conceivably be set aside at a later
time depending on how that procedure goes.”
The following month, the prosecution sought
reinstatement of the special circumstance allegation in the
California Court of Appeal. People v. Superior Court
(Jurado), 4 Cal. App. 4th 1217 (1992). The Court of Appeal
held that the special circumstance had been improperly
dismissed. See id. at 1229. The Court of Appeal further held
that double jeopardy posed no bar to the reinstatement of the
special circumstance, relying on Ohio v. Johnson, 467 U.S.
493, 500–02 (1984) (holding double jeopardy did not bar
prosecution of more serious crimes when defendant pleaded
to less serious crimes). Id. at 1229–30. The California
Supreme Court denied Jurado’s petition for review, and
Jurado withdrew his guilty plea and entered a plea of not
guilty. Jurado raised this issue again on direct appeal, and the
California Supreme Court rejected it, relying on Johnson.
In Johnson, the defendant was indicted on one count of
murder, one count of involuntary manslaughter, one count of
aggravated robbery, and one count of grand theft. Id. at 495.
At his arraignment, the defendant offered to plead guilty to
the involuntary manslaughter and grand theft charges, and
despite the prosecutor’s objection, the trial court accepted the
guilty pleas and sentenced the defendant to a term of
imprisonment. Id. at 496. The defendant subsequently
requested that the trial court dismiss the murder and
aggravated robbery charges on the ground that involuntary
JURADO V. DAVIS 11
manslaughter and grand theft were lesser included offenses,
and that the continued prosecution of the greater offenses
after acceptance of the defendant’s guilty pleas on the lesser
offenses was barred by the Double Jeopardy Clause. Id. The
trial court dismissed the charges and the Ohio Court of
Appeals and the Ohio Supreme Court affirmed because under
Ohio law, a defendant can only be found guilty of either
murder or involuntary manslaughter (but not both), and either
aggravated robbery or grand theft (but not both). Id.at 496–97.
The Supreme Court reversed. It concluded that, contrary
to the Ohio Supreme Court’s determination, the case did not
concern the double jeopardy protection prohibiting multiple
punishments for the same offense. Id. at 497. It found that
the “trial court’s dismissal of [the] more serious charges did
more than simply prevent the imposition of cumulative
punishments; it halted completely the proceedings that
ultimately would have led to a verdict of guilt or innocence
on [those] more serious charges.” Id. at 499–50. This went
beyond the Double Jeopardy Clause’s “principles of finality
and prevention of prosecutorial overreaching,” id. at 501, and
“den[ied] the State its right to one full and fair opportunity to
convict those who have violated its laws.” Id. at 502. The
Court stated that no interest protected by the Double Jeopardy
Clause was implicated by continuing prosecution on the
remaining charges where the defendant offered only to
resolve part of the charges against him and the state objected
to disposing of any of the charges without a trial. Id. at 501.
And it ultimately held that “the Double Jeopardy Clause [did]
not prohibit the State from continuing its prosecution of
respondent on the charges of murder and aggravated
robbery.” Id. at 502.
12 JURADO V. DAVIS
A substantially similar situation is presented here. The
state trial court dismissed the special circumstance, and
Jurado unconditionally pleaded guilty to the remaining
charges. The State appealed. Applying Johnson, the
California Court of Appeal allowed reinstatement of the
special circumstance, and Jurado withdrew his guilty plea.
As in Johnson, the Double Jeopardy Clause is not implicated
because Jurado was not subject to multiple punishments for
the same offense. Moreover, on direct appeal, the California
Supreme Court specifically found that the prosecutor had not
acquiesced in Jurado’s plea, and accordingly, Jurado’s case
was indistinguishable from Johnson. Jurado, 38 Cal. 4th
at 97.
Jurado argues that Johnson does not apply because more
serious charges did not remain pending against him at the
time he pleaded guilty. However, Johnson explained that
where multiple charges are “embraced within a single
prosecution,” they are not “capable of being infinitely
subdivided” such that “a determination of guilt and
punishment on one count of a multicount indictment
immediately raises a double jeopardy bar to continued
prosecution on any remaining counts that are greater or lesser
included offenses of the charge just concluded.” Johnson,
467 U.S. at 501. Regardless of the timing of Jurado’s plea,
this is the same course of events that occurred in his
prosecution—the special circumstance was an included part
and parcel of the initial prosecution—and the California
Supreme Court was not unreasonable in concluding that the
rationale in Johnson applied to Jurado’s case.
Jurado also attempts to distinguish Johnson because the
prosecutor in this case did not explicitly object to his plea.
However, the California Supreme Court’s conclusion that the
JURADO V. DAVIS 13
prosecutor’s actions in this case were equivalent to an
objection was not objectively unreasonable, as it was clear
that the prosecution was opposed to the guilty plea and
wanted to pursue prosecution of the special circumstance
allegation. In sum, the district court correctly concluded that
the California Supreme Court’s determination that Johnson’s
holding controlled was not unreasonable.1
B
The California Supreme Court’s conclusion that Jurado’s
rights to due process and a reliable penalty determination
were not violated by the admission at trial of Brian Johnsen’s
videotaped conditional examination was not an unreasonable
determination of facts within the meaning of § 2254(d)(2).
The state trial court permitted the prosecution to play
Johnsen’s videotaped conditional examination at trial, after
specifically finding that Johnsen’s life would be in jeopardy
if he were to testify at trial. Johnsen, who was Holloway’s
boyfriend at the time of her murder, testified that Mynatt had
previously kidnapped and threatened to kill Jurado, and he
explained details about the conspiracy to kill Mynatt.
Johnsen also discussed his telephone conversation from jail
with Holloway the day she was killed. Jurado’s counsel
cross-examined Johnsen throughout the conditional
examination.
1
Because the California Supreme Court’s decision rested on
application of Johnson, we need not and do not reach Jurado’s argument
regarding whether the special circumstance was a different offense or a
greater element of capital murder.
14 JURADO V. DAVIS
On appeal, the California Supreme Court concluded that,
with respect to Johnsen’s conditional examination, the
prosecutor satisfied the requirements of California Penal
Code § 1335(b) and § 1336(b) by submitting a declaration
stating that Johnsen’s life was in danger from Mynatt, Jurado,
and Jurado’s co-defendants and associates. Jurado, 38 Cal.
4th at 114. The court also concluded that since Jurado had a
full and fair opportunity to cross-examine Johnsen during his
conditional examination, his constitutional rights were not
violated. Id. at 115.
“[A] decision adjudicated on the merits in a state court
and based on a factual determination will not be overturned
on factual grounds unless objectively unreasonable in light of
the evidence presented in the state-court proceeding,
§ 2254(d)(2).” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). Additionally, the admission of particular evidence
provides a basis for habeas relief only when it “render[s] the
trial fundamentally unfair in violation of due process,” Holley
v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting
Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995)).
It was not objectively unreasonable for the state courts to
determine, on the basis of the prosecutor’s declaration, that
Johnsen’s life would be at risk if he testified. As
demonstrated by the circumstances of the case, both Mynatt
and Jurado and his associates would be highly motivated to
kill or harm Johnsen—a direct threat was not necessary to
draw this inference. Moreover, the admission of the
conditional evidence did not violate Jurado’s rights to due
process or a reliable penalty determination because, as the
California Supreme Court held, Jurado and his counsel had a
full and fair opportunity to cross-examine Johnsen during the
conditional examination. Jurado, 38 Cal. 4th at 115.
JURADO V. DAVIS 15
C
The California Supreme Court’s conclusion that Jurado’s
constitutional rights were not violated by Steven Baldwin’s
testimony at trial regarding Denise Shigemura’s out-of-court
statements was not an unreasonable determination of the facts
or an unreasonable application of clearly established federal
law.
Baldwin testified that Shigemura came over to his house
a couple days before the murder. Shigemura asked him if he
could get her a “gat” (a slang term referring to a gun) because
she had a problem that she needed to take care of. Baldwin
also testified that the day after the murder, he let Jurado,
Shigemura, and Mark Schmidt into his home. Baldwin
testified that, while in Jurado’s presence, Shigemura, sitting
next to Jurado on the couch, told Baldwin, “I no longer need
what it was I asked you for. We took care of the problem and
we dumped the body at Balboa Park.” Jurado remained silent
during and after this statement was made. The trial court held
that the statement was admissible as an adoptive admission
by Jurado, and Shigemura’s earlier statement requesting a
“gat” was admissible as a co-conspirator statement.
The California Supreme Court held that the trial court
correctly admitted Shigemura’s statement to Baldwin in
Jurado’s presence as an adoptive admission. Jurado, 38 Cal.
4th at 116–17. The court concluded that Shigemura’s request
for the “gat” was not hearsay because “a request, by itself,
does not assert the truth of any fact, [and] it cannot be offered
to prove the truth of the matter stated,” but that the statement
“was hearsay insofar as it asserted that Shigemura had a
problem that she needed to take care of.” Id. at 117. The
court also concluded that Jurado suffered no prejudice as a
16 JURADO V. DAVIS
result of the admission of the pre-crime statement because the
substance of that statement was repeated in the post-crime
statement made in Jurado’s presence and which Jurado
adopted through his conduct. Id. at 118.
The California Supreme Court’s conclusion that the trial
court’s admission of Shigemura’s pre-crime
statement—asking Baldwin if he had a “gat” and explaining
that she had a problem she needed to take care of—amounted
to harmless error did not rest on an unreasonable
determination of the facts or an unreasonable application of
clearly established law. To grant relief on this basis, we
would need to conclude that “the harmlessness determination
itself was unreasonable.” See Davis v. Ayala, 576 U.S. 257,
269 (2015) (quotations and citation omitted). The state
court’s harmlessness determination was not unreasonable
here because the substance of the pre-crime statement was
repeated in the post-crime statement. Thus, even if the pre-
crime statement had not been admitted at trial, the jury still
would have known that Shigemura previously indicated to
Baldwin that she had a problem she needed to take care of
and that she (and Jurado) subsequently took care of that
problem by dumping a body in Balboa Park.
The California Supreme Court decision also did not rely
on an unreasonable determination of the facts or an
unreasonable application of clearly established law in
concluding that Shigemura’s post-crime statement was
properly admitted as an adoptive admission. Shigemura’s
post-crime statement—“I no longer need what it was I asked
you for. We took care of the problem and we dumped the
body at Balboa Park”—accused Jurado of committing a
crime, in particular, because of her use of “we” and because
of her location next to Jurado on a couch. There is no
JURADO V. DAVIS 17
indication that Jurado could not hear Shigemura’s statement,
or that he did not understand that she was implicating him in
the crime described. Therefore, he should have been
compelled to reply or object if Shigemura’s statement was
incorrect, and it was not “objectively unreasonable” for the
state court to construe his silence as an adoptive admission.
Miller-El, 537 U.S. at 340. As the statement was properly
admitted as an adoptive admission, it did not cause the trial to
be “fundamentally unfair,” in violation of due process. See
Holley, 568 F.3d at 1101; see also Estelle v. McGuire,
502 U.S. 62, 67–68 (1991). Likewise, its admission did not
violate Jurado’s clearly established Confrontation Clause
rights. The Sixth Amendment’s Confrontation Clause
protections focus on testimonial statements, or statements that
“bear testimony.” See Crawford v. Washington, 541 U.S. 36,
51–53 (2004). Supreme Court precedent, however, has yet to
address whether adoptive admissions are testimonial
statements that fall within the Confrontation Clause’s
protections.
D
The California Supreme Court’s conclusion that Jurado’s
constitutional rights were not violated by the trial court’s
exclusion of his videotaped confession at the penalty phase
does not warrant relief under § 2254(d).
During the penalty phase, defense counsel sought to admit
a videotape of the confession Jurado gave to police officers.
During the interrogation, Jurado wept as he admitted he “did
it,” and when the detectives asked if Jurado knew Holloway
was still alive when he dumped her in a ditch, he said, “I
don’t know. Only God knows that, man.” When the
detectives asked if Jurado sustained any injuries during the
18 JURADO V. DAVIS
fight, he replied, “The only injury I got is from my, just from
my conscience.” The defense asserted this evidence of
remorse was needed to rebut the prosecution’s evidence that
after Jurado was arrested, he called Christine Medlin and sang
something like “On, on, the bitch is gone” to the tune of a rap
song, and he also said that he did not care if he had to spend
the rest of his life in prison because “it was worth it.”
The trial court refused to admit the videotape because it
determined that, under Green v. Georgia, 442 U.S. 95 (1979),
the statements made on the confession tape were inadmissible
hearsay, and that no applicable hearsay exception applied. It
further concluded that, as to the non-assertive emotions
contained in the tape, there was no compelling need for the
evidence, and no substantial evidence of inherent
trustworthiness or reliability. The trial court noted that
“nowhere does [Jurado] expressly articulate any emotion, if
you will, or concern or remorse about the victim or her
family,” and instead, he only “express[ed] concern about not
wanting to go to jail, not wanting to be labeled as a snitch,”
or other fears that he or his family might be harmed.
The California Supreme Court held the trial court’s
exclusion of the interrogation did not violate Jurado’s right
to a fair trial and reliable penalty determination because
capital defendants have no constitutional right to the
admission of evidence lacking trustworthiness. Jurado,
38 Cal. 4th at 130. The court held that the trial court had
correctly determined that the circumstances of the
interrogation lacked indicia of trustworthiness. Id. at 129–30
(citing Cal. Evid. Code §§ 1250 & 1252).
The California Supreme Court decision did not rely on an
unreasonable determination of the facts within the meaning
JURADO V. DAVIS 19
of § 2254(d)(2), nor did the decision involve an unreasonable
application of clearly established federal law. “A defendant’s
right to present relevant evidence is not unlimited, but rather
is subject to reasonable restrictions.” United States v.
Scheffer, 523 U.S. 303, 308 (1998). Such reasonable
restrictions may include the requirement that certain evidence
be excluded if it is not sufficiently reliable. See id. at 308–12
(upholding application of Military Rule of Evidence 707,
which operated to exclude polygraph evidence defendant
sought to introduce because “there is simply no consensus
that polygraph evidence is reliable”). The California
Supreme Court did not unreasonably conclude that the
videotaped interrogation lacked persuasive assurances of
trustworthiness. Therefore, its decision to affirm the
exclusion of the videotape was not contrary to or an
unreasonable application of clearly established federal law.
E
The California Supreme Court’s conclusion that Jurado
was not denied his constitutional right to a fundamentally fair
sentencing hearing was not contrary to, or an unreasonable
application of Supreme Court precedent. Jurado argues that
his right was violated by the admission of evidence at the
penalty phase that Holloway was seventeen weeks pregnant
at the time she was killed.
The California Supreme Court affirmed the admission of
the pregnancy evidence at the penalty phase because, under
Payne v. Tennessee, 501 U.S. 808, 827 (1991), the Eighth
Amendment “permits the prosecution, in a capital case, to
present evidence about the murder victim and the specific
harm the defendant caused as relevant to the jury’s penalty
decision.” Jurado, 38 Cal. 4th at 130. The pregnancy
20 JURADO V. DAVIS
evidence was relevant because the “facts concerning the
victim that are admissible at the penalty phase of a capital
trial as circumstances of the crime are not limited to those
known to or reasonably foreseeable by the defendant at the
time of the murder.” Id. at 131. It found that the evidence
was not unduly prejudicial because, in murdering Holloway,
the “defendant also terminated the life of a healthy 17-week-
old fetus she was carrying,” and that this was “part of the
harm caused by defendant’s crime and thus was a legitimate,
though emotional, consideration for the jury in making its
penalty decision.” Id. The court also noted that Jurado had
not challenged the manner in which the evidence was
presented, and confirmed that the evidence was “not
presented in an unnecessarily inflammatory way.” Id.The California Supreme Court correctly concluded that
victim impact evidence is permissible at sentencing in a
capital case. See Payne, 501 U.S. at 824–25 ( “[A] State may
properly conclude that for the jury to assess meaningfully the
defendant’s moral culpability and blameworthiness, it should
have before it at the sentencing phase evidence of the specific
harm caused by the defendant.”). The decision also did not
rely on an unreasonable determination of the facts. The state
court weighed the impact the evidence likely had on the jury,
but it reasonably concluded that the pregnancy evidence “was
part of the harm caused by defendant’s crime and thus was a
legitimate, though emotional, consideration for the jury in
making its penalty decision.” Jurado, 38 Cal.4th at 131.
This determination was not objectively unreasonable within
the meaning of § 2254(d)(2).
JURADO V. DAVIS 21
F
The California Supreme Court concluded that Jurado’s
rights to due process, a fair penalty trial, and a reliable
sentence were not violated by the admission of evidence
concerning Jurado’s prior incidents of violence. This
determination was not contrary to and did not involve an
unreasonable application of clearly established federal law.
At trial the prosecution introduced evidence of two
physical altercations that had taken place between Jurado and
his mother, Josephine Jurado. As a result, Josephine applied
for a restraining order to have Jurado removed from the
house. The application indicated that Jurado “threatened to
obtain weapons during this incident and shoot up [her]
house,” “threatened to kill [her],” and “raised his hand as if
to strike [her].”
Under California law at the time of Jurado’s trial, “[i]f [a]
defendant has been found guilty of murder in the first degree,
and a special circumstance has been charged and found to be
true . . . the trier of fact shall determine whether the penalty
shall be death or confinement in state prison for a term of life
without the possibility of parole.” Cal. Penal Code § 190.3.
In determining the penalty, if relevant, the trier of fact “shall
take into account” “[t]he presence or absence of criminal
activity by the defendant which involved the use or attempted
use of force or violence or the express or implied threat to use
force or violence.” Id.§ 190.3(b). “A habeas petitioner who
challenges a state court’s admission into evidence of prior
acts of misconduct is not entitled to habeas corpus relief
unless the state court’s admission of this evidence violated
the petitioner’s federal due process right to a fair trial under
the Constitution.” Gordon v. Duran, 895 F.2d 610, 613 (9th
22 JURADO V. DAVIS
Cir. 1990). Simple state law error does not warrant federal
habeas relief. Estelle, 502 U.S. at 67–68.
The admission of evidence of prior acts of violence did
not render the penalty phase of Jurado’s trial fundamentally
unfair in violation of due process. The evidence complied
with § 190.3(b)’s requirements: Jurado’s conduct amounted
to battery and/or assault.
The admission of this evidence also does not run afoul of
Supreme Court precedent holding that aggravating
circumstances that renders a defendant eligible for the death
penalty “must genuinely narrow the class of persons eligible
for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant
compared to others found guilty of murder.” Zant v.
Stephens, 462 U.S. 862, 877 (1983). Here, the evidence was
introduced only after the jury had already found Jurado
eligible for the death penalty. Accordingly, the requisite
narrowing function had already taken place. See, e.g., id. at
878 (“But the Constitution does not require the jury to ignore
other possible aggravating factors in the process of selecting,
from among [the class of persons eligible for the death
penalty], those defendants who will actually be sentenced to
death.”).
G
The California Supreme Court’s rejection of Jurado’s
challenge to the instructions given to the jury in his case was
not contrary to or an unreasonable application of clearly
established federal law.
JURADO V. DAVIS 23
At trial, the prosecution introduced evidence under
California Penal Code § 190.3(b) showing that Jurado aided
and abetted an assault that occurred while Jurado was in jail
by instigating other inmates to attack Steven Baldwin for
being a snitch. The attack resulted in Baldwin losing
consciousness, and a physician testified as to the injuries
Baldwin suffered as a result.
Jurado claims that the trial court’s failure to instruct the
jury sua sponte on the law of assault and aiding and abetting
liability left the jury to consider whether Jurado had aided and
abetted assault without having a legal framework to rely
upon, which in turn, caused the jury to find an
unconstitutionally vague aggravating circumstance in
violation of due process. Alternatively, he asserts that
counsel’s decision to withdraw the request for instruction on
this issue amounted to ineffective assistance of counsel, in
violation of Jurado’s Sixth Amendment right to counsel.
“The burden of demonstrating that an erroneous
instruction was so prejudicial that it will support a collateral
attack on the constitutional validity of a state court’s
judgment is even greater than the showing required to
establish plain error on direct appeal.” Henderson v. Kibbe,
431 U.S. 145, 154 (1977). “The question in such a collateral
proceeding is ‘whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates
due process,’ not merely whether ‘the instruction is
undesirable, erroneous, or even universally condemned.’” Id.(quoting Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)).
Further, “[a]n omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of the law.” Id.
at 155.
24 JURADO V. DAVIS
The trial court’s sua sponte failure to instruct on aiding
and abetting assault fails to satisfy this demanding standard.
There is no evidence that the omission of a specific
instruction addressing aiding and abetting assault—one of
four nonadjudicated criminal acts the prosecution presented
separate and apart from the aggravating circumstances related
directly to the murder—“so infected” the sentencing
proceeding such that Jurado’s sentence violates due process.
The jury was still instructed that it could not consider prior
criminal activity alleged in aggravation unless it was
convinced beyond a reasonable doubt that Jurado had
engaged in that activity; sufficient evidence was presented at
trial regarding the Baldwin assault such that the jury could
reasonably reach that conclusion.
Jurado also has not shown that the California Supreme
Court’s rejection of the ineffective assistance of counsel
claim was unreasonable. Even assuming that counsel’s
failure to request the instruction constituted ineffective
assistance, Jurado cannot demonstrate prejudice because the
state court reasonably could have concluded that the evidence
of aiding and abetting was overwhelming.
H
The California Supreme Court’s rejection of Jurado’s
ineffective assistance of counsel claim based on his attorney’s
concession that Jurado intentionally killed Holloway was not
contrary to or an unreasonable application of clearly
established federal law.2, 3
2
To the extent Jurado challenges counsel’s failure to investigate
Jurado’s LSD use, we decline to address his arguments. Jurado raised
these claims only in the context of Claim 1.D in of his Second Amended
JURADO V. DAVIS 25
During voir dire, defense counsel conceded Jurado’s
involvement in killing Holloway. In his guilt phase opening
statement, counsel also conceded Jurado’s involvement in the
killing—stating that Jurado killed Holloway in a manner that
suggested rage resulting from the use of methamphetamine,
as opposed to a manner that suggested premeditation and
deliberation—and he argued that he would request a verdict
of less than first degree murder. In support of this argument,
counsel put on evidence at the guilt phase regarding Jurado’s
methamphetamine use, including the presence of
methamphetamine in his system at the time of the murder—
although there was evidence that suggested that Jurado likely
ingested the methamphetamine days before the crime.
Trial counsel requested a jury instruction addressing the
effect of voluntary intoxication on specific intent. At the
time, voluntary intoxication was a defense to first and second
degree murder. Cal. Penal Code § 22(a), (b); People v.
Whitfield, 7 Cal.4th 437, 450–51 (1994). The trial court,
however, refused to give the instruction because it concluded
counsel had set forth insufficient evidence establishing that
Jurado was intoxicated by methamphetamine or any other
substance at the time of the murder.
During guilt phase closing arguments, counsel told the
jury that Jurado committed second degree murder. He argued
Petition, but this claim was not certified on appeal by the district court,
and Jurado has not requested that we expand the COA to consider that
claim now.
3
Jurado raised this claim in his 2010 state habeas petition, and the
California Supreme Court denied it on the merits without explanation and
also concluded it was barred as untimely and successive.
26 JURADO V. DAVIS
that Jurado had only committed second degree murder, and
not first degree murder, because he killed Holloway in an
unplanned struggle in the car that got “out of hand.”
In assessing allegedly deficient performance under
Strickland v. Washington, 466 U.S. 668 (1984), we are
required “to affirmatively entertain” the range of possible
reasons counsel might have proceeded as he did. Cullen v.
Pinholster, 563 U.S. 179, 196 (2011). Strickland applies a
strong presumption of effective assistance of counsel, a
reviewing court must be highly deferential to the judgment
below, and wide latitude is given to defense counsel in
making tactical decisions. 466 U.S. at 689. “[I]f counsel’s
strategy, given the evidence bearing on the defendant’s guilt,
satisfies the Strickland standard, that is the end of the matter;
no tenable claim of ineffective assistance [will] remain.”
Florida v. Nixon, 543 U.S. 175, 192 (2004).
Jurado has failed to show that trial counsel’s actions were
objectively unreasonable such that counsel’s performance
was constitutionally deficient under Strickland. Defense
counsel’s decision to concede second degree murder at the
cost of the voluntary intoxication defense was not objectively
unreasonable under the circumstances. Even though counsel
had presented evidence that theoretically laid the foundation
for the voluntary intoxication defense, that evidence was so
unpersuasive that the trial judge refused to instruct the jury on
it. At that point, it would have been unreasonable for counsel
to continue making decisions based on a likely-unsuccessful
defense. Considering the possible tactical reasons that
counsel chose to concede this point, it was not objectively
unreasonable for him to do so in order to bolster his
credibility with the jury, or alternatively, to do anything to
discourage a jury verdict of first degree murder.
JURADO V. DAVIS 27
Jurado’s argument that defense counsel’s failure to
prepare and present evidence in support of the voluntary
intoxication case amounted to deficient performance is
likewise unpersuasive. Jurado has not explained with any
level of specificity how counsel’s investigation into the
methamphetamine intoxication issue was inadequate.
Moreover, he does not cite any other available evidence that
could have been discovered or presented in support of that
defense. The best evidence supporting the defense—the
results of the blood and urine tests from Jurado’s arrest—was
presented at trial. That evidence suggested only that Jurado
had ingested methamphetamine at some point in the days
before his arrest, and no evidence established that Jurado had
in fact ingested methamphetamine the day of the murder or
that he was intoxicated at the time of the murder. If anything,
the evidence of intoxication was so thin that counsel might
have considered not presenting it at all; there was no reason
counsel needed to exert additional effort in its presentation,
and an expert testifying to the effects of intoxication on the
brain—without additional evidence of Jurado’s actual
intoxication—would not have been useful. Thus, this
argument does not support Jurado’s claim of deficient
performance.
Jurado’s claim that counsel’s concession regarding second
degree murder gratuitously helped the prosecution also does
not amount to deficient performance. Although conceding
second degree murder necessarily conceded a number of the
elements of first degree murder, it was not unreasonable
given the circumstances. By the time Jurado’s case went to
trial, most of the material elements of both second and first
degree murder had been established; an abundance of
evidence demonstrated that Jurado had killed Holloway—the
primary issue was Jurado’s culpability for the killing.
28 JURADO V. DAVIS
Although a criminal defendant has a Sixth Amendment
right to decide whether to maintain his innocence, see McCoy
v. Louisiana, 138 S. Ct. 1500, 1509 (2018), “[w]hen counsel
informs the defendant of the strategy counsel believes to be
in the defendant’s best interest[,] and the defendant is
unresponsive, counsel’s strategic choice is not impeded by
any blanket rule demanding the defendant’s explicit consent.”
Nixon, 543 U.S. at 192. Here, there is no evidence Jurado
opposed this strategy; therefore, counsel’s tactics did not run
afoul of Nixon or McCoy.
I
The California Supreme Court’s rejection of Jurado’s
claim of ineffective assistance of counsel at the penalty phase
was not contrary to or an unreasonable application of clearly
established federal law. Jurado argues that his counsel should
have presented evidence of: (1) family background and
social history; (2) depression, polysubstance abuse, and
addiction; (3) decompensation and homelessness;
(4) psychological and emotional immaturity; and (5) exposure
to toxins as a child.
However, we need not reach the issue of whether
counsel’s performance was deficient, as Jurado has not
adequately established that any of counsel’s alleged
deficiencies resulted in prejudice within the meaning of
Strickland. To establish prejudice under Strickland, a
petitioner must “show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” 466 U.S. at 694. Here, the crime itself was
brutal and premeditated. Jurado killed in order to facilitate a
JURADO V. DAVIS 29
second murder. The prosecution presented substantial
evidence in aggravation, including evidence of Jurado’s
felony conviction, assaults against his own mother, and the
victim’s pregnancy. The evidence Jurado claims should have
been introduced was not so different in quality or kind that it
would have necessarily shifted the jury’s view of Jurado as an
individual or his responsibility for the killing. The jury knew
Jurado had a difficult childhood and home life, they knew he
had a strained relationship with his father, they knew that he
was a regular drug user, they knew he was twenty years old.
Given these factors, Jurado has failed to establish a
“reasonable probability that . . . the result of the proceeding
would have been different.” Id.J
The district court did not abuse its discretion in denying
Jurado’s request for evidentiary development, discovery, and
an evidentiary hearing. If a claim has been adjudicated on the
merits in state court, a federal habeas petitioner seeking
discovery or an evidentiary hearing must first overcome the
relitigation bar of § 2254(d)(1) and (d)(2) based solely on the
record that was before the state post-conviction court. See
Pinholster, 563 U.S. at 181 (“[R]eview under § 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits.”). “Where a habeas
petitioner has not failed to develop the factual basis of his
claim as required by 28 U.S.C. § 2254(e)(2), an evidentiary
hearing is required if (1) the petitioner has shown his
entitlement to an evidentiary hearing pursuant to Townsend
v. Sain, 372 U.S. 293, 313 (1963), and (2) the allegations, if
true, would entitle him to relief.” Hurles, 752 F.3d at 791.
30 JURADO V. DAVIS
Jurado has not demonstrated that any of his claims
survive the § 2254(d) relitigation bar on the basis of the
record before the state court; therefore, the district court
properly considered only the state court record in reviewing
Jurado’s claims for relief. See Sully v. Ayers, 725 F.3d 1057,
1067 n.4 (9th Cir. 2013). As these claims had not stated even
a prima facie claim for relief, evidentiary development was
not necessary for the district court to deny them.
Additionally, because both the California Supreme Court
and the district court addressed the merits of Jurado’s claims
without regard to any procedural defaults, the independence
and adequacy of any procedure bars is not at issue, and any
argument under Martinez v. Ryan, 566 U.S. 1, 13–14 (2012)
is moot. Therefore, there was no need to develop additional
evidence related to Martinez cause and prejudice.
In sum, the district court did not abuse its discretion in
denying Jurado’s requests for evidentiary development and an
evidentiary hearing.
III
The district court properly denied Jurado’s petition for a
writ of habeas corpus in thoughtful, detailed opinions. It
properly concluded that the California Supreme Court’s
decisions were not (1) contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court, or (2) resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding. 28 U.S.C. § 2254(d). The district court did not
abuse its discretion in denying requests for an evidentiary
hearing and related relief.
JURADO V. DAVIS 31
We affirm the judgment of the district court.
AFFIRMED.