Sergio Cadavid v. Connie Gipson ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO A. CADAVID, No. 10-56796
Petitioner-Appellant, D.C. No.
2:04-cv-00289-JVS-AJW
v.
CONNIE GIPSON, Warden, Acting Warden MEMORANDUM*
of California State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted December 11, 2019
Pasadena, California
Before: O’SCANNLAIN and PAEZ, Circuit Judges, and SIMON,** District Judge.
Sergio Cadavid appeals the district court’s denial of his habeas petition.
Cadavid was convicted in California state court of residential burglary and
attempted robbery. His petition asserts claims for ineffective assistance of counsel
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
and a violation of his right to a public trial. Although he did not raise the issue in
his habeas petition, he also argues that his waiver of his right to a jury trial was not
knowing and intelligent. We have jurisdiction under 28 U.S.C. § 2253(a). We
review de novo the district court’s denial of the petition. Merolillo v. Yates, 663
F.3d 444, 453 (9th Cir. 2011). Under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), we must deny habeas relief unless the petitioner
shows that the state court decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” Id. (quoting
28 U.S.C. § 2254(d)(1)–(2)). For the reasons explained below, we affirm.
1. Cadavid contends he was denied his Sixth Amendment right to
effective assistance of counsel when his trial counsel—Brenda Vargas—failed to
investigate and present evidence regarding his mental defense. In particular, he
challenges Vargas’s failure to obtain, or to provide his defense expert with,
Cadavid’s medical records from his treatment at St. Francis Hospital immediately
following his arrest. But even assuming Vargas’s deficient performance, Cadavid
has not shown “a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Luna v. Cambra, 306 F.3d
954, 961 (9th Cir. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 695
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(1984)).
Cadavid first argues the St. Francis records would have supported his mental
defense that he experienced a seizure during or before the crime and thus did not
form the necessary intent. The records indicate that Cadavid likely experienced a
seizure at the hospital about an hour after the crime. While these records show
Cadavid was more likely to suffer a seizure around that time, they do not show he
had a seizure during or before the crime.
The evidence at trial undermined Cadavid’s assertion that he was in a post-
seizure confused state at the time of the crime. Three victims testified about
repeated instances of Cadavid’s volitional and goal-oriented actions and comments
during the incident. Cadavid’s expert at trial (Dr. Robert Brook) and his expert at
the federal court evidentiary hearing (Dr. Bijan Zardouz) both explained that such
goal-oriented behavior is inconsistent with a seizure or post-seizure state.
Critically, in light of this evidence, Dr. Zardouz—who reviewed the St. Francis
records—concluded that Cadavid was not in a post-seizure state at the time of the
crime. On the basis of this evidence, it is not reasonably probable that a jury
would find, contrary to Cadavid’s own expert, that Cadavid had suffered a seizure
before the crime.
Cadavid next argues that the medical records would have supported an
alternative defense that he was voluntarily intoxicated. The St. Francis records
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showed Cadavid with a blood alcohol concentration (BAC) of 0.215% about an
hour after the crime, and that he also tested positive for opiates and cannabinoids.
But Cadavid did not offer any evidence or expert testimony regarding his BAC at
the time of the crime, which may have been significantly lower. See, e.g., McLean
v. Moran, 963 F.2d 1306, 1307 (9th Cir. 1992) (explaining that, although McLean
had a BAC of 0.16% thirty to forty-five minutes after being pulled over, it was
possible McLean’s BAC was less than 0.10% while driving). Dr. Zardouz
concluded only that Cadavid was “drunk” at the time of the incident. And again,
there was ample trial testimony from multiple witnesses regarding Cadavid’s
volitional conduct that would have significantly undermined a voluntary
intoxication defense. As a result, even if counsel had raised a voluntary
intoxication defense, it is not reasonably likely a factfinder would have had a
reasonable doubt regarding Cadavid’s intent.
In sum, Cadavid has not demonstrated a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Crace v. Herzog, 798 F.3d 840, 846 (9th Cir. 2015) (quoting
Strickland, 466 U.S. at 694). Accordingly, the California Supreme Court’s denial
of Cadavid’s petition was not contrary to or an unreasonable application of
controlling federal law. See Harrington v. Richter, 562 U.S. 86, 102 (2011).
2. Cadavid next argues that his Sixth Amendment right to a public trial
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was violated when, on the second day of trial, the court moved proceedings to the
elderly victim’s apartment without making any findings on the record regarding the
need for the relocation. But a defendant can waive his right to a public trial by
failing to object to the trial’s closure. See Peretz v. United States, 501 U.S. 923,
936–37 (1991); United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006); see also
Momah v. Uttecht, 699 F. App’x 604, 607 (9th Cir.), cert. denied, 138 S. Ct. 524
(2017). Here, Cadavid did not object when the court decided to take the victim’s
testimony at her apartment or when the court commenced proceedings there.
Accordingly, even assuming the proceedings at the victim’s home constituted a
closure of the trial, an issue we do not decide, Cadavid waived his right.
3. Finally, Cadavid argues that his waiver of his Sixth Amendment right
to a jury trial was not knowing and intelligent because he relied on the trial judge’s
fraudulent misrepresentation that the judge had a degree in psychology. As the
district court noted, however, Cadavid did not raise the issue in his habeas petition.
Instead, Cadavid raised the issue for the first time nearly six years after filing his
petition and only after the district court ordered a supplemental brief to “list” the
claims he would continue to pursue. We decline to consider an issue that Cadavid
did not properly raise before the district court and which the district court did not
address. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
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