David Del Toro v. Raymond Madden ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID DEL TORO, No. 18-56421
Petitioner-Appellant, D.C. No.
2:16-cv-03624-RSWL-RAO
v.
RAYMOND MADDEN, Warden, Centinela MEMORANDUM*
State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted April 3, 2020
Pasadena, California
Before: PAEZ and CALLAHAN, Circuit Judges, and LYNN,** District Judge.
David Del Toro (“Del Toro”), a California prisoner convicted of
murder, appeals the district court’s denial of his petition for habeas relief under 28
U.S.C. § 2254. Del Toro argues that the jury’s consideration of erroneous extrinsic
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara M. G. Lynn, United States Chief District
Judge for the Northern District of Texas, sitting by designation.
information concerning the maximum sentence for manslaughter violated his
constitutional rights and prejudiced the jury in favor of a murder verdict. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the district
court’s dismissal of Del Toro’s § 2254 petition and affirm. Murray v. Schriro, 882
F.3d 778, 801 (9th Cir. 2018).
On habeas review of a state court’s affirmance of a criminal conviction, 28
U.S.C. § 2254(d) constitutes a “threshold restriction” on federal habeas corpus
relief. Renico v. Lett, 559 U.S. 766, 773 n.1 (2010). Section 2254(d) “bars
relitigation of any claim ‘adjudicated on the merits’ in state court,” subject to only
two exceptions. Harrington v. Richter, 562 U.S. 86, 98 (2011). These exceptions
require a petitioner to show that the state court’s adjudication of the claim either
(1) was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or (2) was “based on an unreasonable determination of the facts in light of the
evidence presented at the State Court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
Moreover, the petitioner must demonstrate “a reasonable probability” that the jury
would have reached a verdict less than murder but for the error. Clark v. Brown,
450 F.3d 898, 916 (9th Cir. 2006).
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We consider whether these exceptions apply by looking to the last reasoned
state-court decision. Murray, 745 F.3d at 996. Here, that would be the California
Court of Appeal’s decision affirming Del Toro’s conviction.
Del Toro has not made the requisite showing of prejudice for relief. Even
assuming the court based its decision on an unreasonable determination of the facts
or failed to apply the presumption of prejudice mandated by the Supreme Court’s
decisions in Remmer v. United States, 347 U.S. 227 (1954) and Mattox v. United
States, 146 U.S. 140 (1892), Del Toro has failed to establish “a reasonable
probability” that the jury would have reached a verdict less than murder but for the
misconduct, Clark, 450 F.3d at 916.
Indeed, the evidence presented at trial indicated that Del Toro committed
murder, not manslaughter. The state’s expert partially attributed Flores’s death to
strangulation, permitting a reasonable inference that Del Toro premeditated her
killing. Schad v. Ryan, 671 F.3d 708, 717–18 (9th Cir. 2011), overruled on other
grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015). A portion of
rope found near Flores’s body “matched” the rope found in Del Toro’s driveway
and the police recovered a rope-tying manual in his living room. Other evidence
indicated that Del Toro had made several inept attempts to cover up the killing,
partially hosing down his truck and placing his blood-stained clothing in a plastic
bag for disposal. And critically, Del Toro himself testified that he had not killed
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Flores at all, not that he had done so under circumstances constituting
manslaughter rather than murder.
For these reasons, Del Toro has not met his burden of demonstrating that the
jury’s misconduct “‘had substantial and injurious effect or influence in determining
the jury’s verdict.’” Kirkpatrick v. Chappell, 950 F.3d 1118, 1128 (9th Cir. 2020)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
AFFIRMED.
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