Jesse Mendez v. Gary Swarthout ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE WILLIAM MENDEZ, No. 16-15026
Petitioner-Appellant, D.C. No. 3:13-cv-02797-EMC
v.
MEMORANDUM*
GARY SWARTHOUT, Warden,
Respondent-Appellee,
and
SCOTT FRAUENHEIM, Warden,
Respondent.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted February 16, 2018
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,** District Judge.
We write primarily for the parties who are familiar with the underlying facts.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
This habeas appeal stems from petitioner Jesse Mendez’s convictions for the
attempted murder of Oakland Police Officer Kevin McDonald and for two firearm-
related offenses connected to the same crime. Officer McDonald was shot during a
traffic stop of the Camaro that Mendez was driving with Mendez’s cousin
Jeremiah Dye in the passenger seat.
After unsuccessful direct and collateral appeals in state court, Mendez filed a
federal petition for habeas corpus.1 We review a district court’s denial of habeas
relief de novo, and we may affirm on any ground supported by the record.
Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005).
We review Mendez’s petition under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Under AEDPA, we will not grant relief unless his
case resulted in a decision that was “contrary to, or involved an unreasonable
application of, clearly established Federal law, . . . [or] was based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
Because Mendez’s claims were summarily denied in state court, we “must
determine what arguments or theories supported or, as here, could have supported,
the state court’s decision; and then [we] must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562
1
The district court had jurisdiction under 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. § 2253.
2
U.S. 86, 102 (2011).
1. Mendez claims prosecutors failed to disclose evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963). Prosecutors did not turn over audio
recordings about an anonymous informant who said the shooter was hiding nearby.
That tip led police to Dye who was killed by police after a standoff.
To succeed on his claim, Mendez must show that the undisclosed evidence
was material—that is, he must show “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (marks and citation
omitted). A “reasonable probability” is one sufficient to undermine confidence in
the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 289–90 (1999).
Mendez argues that the undisclosed recordings were material because they
would have led the informant, whose information implied Dye was the shooter, to
testify. The record suggests otherwise. The government turned over to the defense
the informant’s unregistered phone number. The withheld recordings did not
contain additional contact or identifying information. The trial took place three
years after the shooting, and every description of the informant emphasized that
anonymity was very important to him. Defense counsel tried to contact him but
failed, and nothing suggests the recordings would have changed that outcome.
Given the cumulative nature of the recordings and other strong evidence of guilt,
3
see Banks v. Dretke, 540 U.S. 668, 700–01 (2004), the California Supreme Court
could reasonably have concluded that the prospect of securing the informant’s
testimony was not sufficient to undermine confidence in the trial’s outcome, see
Strickler, 527 U.S. at 289.
Mendez alternatively argues that the content of the recordings would have
justified admitting the informant’s statements under a hearsay exception. The
record, however, does not indicate the statements were “spontaneous.” See Cal.
Evid. Code § 1240; People v. Becerrada, 393 P.3d 114, 128 (Cal. 2017). The
informant reflected, contacted police, and negotiated and was paid a reward. Nor
does the record suggest the statements were evidence “b[earing] persuasive
assurances of trustworthiness.” See Chambers v. Mississippi, 410 U.S. 284, 302
(1973). The informant saw Mendez and Dye flee from more than 1,200 feet away,
and he had an incentive to say the man he saw was the shooter. The California
Supreme Court could reasonably have concluded that the prospect of admitting the
informant’s statements was not sufficient to undermine confidence in the trial’s
outcome. See Strickler, 527 U.S. at 289.
2. Mendez further claims that under Napue v. Illinois, 360 U.S. 264(1959), his due process rights were violated when the prosecutor allowed Sgt.
Tony Jones, the lead investigator, to testify he had no information pointing to any
suspect other than Mendez.
4
Due process prohibits the prosecution from obtaining a conviction by
knowingly introducing, soliciting, or allowing false testimony. Napue, 360 U.S. at
269. Similar to Brady claims, a claim under Napue requires the false testimony to
have been material. United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).
Napue’s materiality standard asks whether “there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury.” Phillips v.
Ornoski, 673 F.3d 1168, 1189 (9th Cir. 2012), as amended (May 25, 2012) (marks
and citation omitted).
Assuming Sgt. Jones’s testimony was false, the defense was still able to
argue repeatedly that Dye was a suspect and the actual shooter, and Sgt. Jones
himself referred to Dye as a suspect on cross-examination. The California Supreme
Court could reasonably have concluded that the testimony was not material. See id.
3. Finally, Mendez invokes various claims of ineffective assistance of
counsel. We evaluate claims of ineffective assistance of counsel under the familiar
standard that requires Mendez to show (1) counsel’s performance was deficient to
the point that it fell below an objective standard of reasonableness, and (2)
counsel’s deficient performance prejudiced him. Strickland v. Washington, 466
U.S. 668, 687–88 (1984). To show prejudice, Mendez “must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Harrington, 562 U.S. at 104 (quoting
5
Strickland, 466 U.S. at 694).
Mendez claims trial counsel was ineffective for failing to impeach Sgt.
Jones’s “no other suspects” answer, but we have explained that Sgt. Jones’s answer
was of only arguable significance. The California Supreme Court could reasonably
have concluded that counsel’s failure to impeach did not prejudice Mendez.
Mendez also claims trial counsel was ineffective for failing to object to a
question the jury asked Sgt. Jones. The jury asked if Sgt. Jones ruled out the
Camaro’s passenger as the shooter, and Sgt. Jones answered, “Yes.” An
investigator ruling out a suspect differs from an opinion on guilt or innocence, and
tends to assist a trier of fact. See People v. Coffman, 96 P.3d 30, 90 (Cal. 2004), as
modified (Oct. 27, 2004). Mendez fails to show why Sgt. Jones’s answer was
impermissible, and the California Supreme Court could have reasonably concluded
that counsel’s failure to object did not prejudice Mendez.
Mendez also argues that his counsel rendered ineffective assistance when he
failed to present evidence at trial that Dye was on parole. Mendez reasons that
Dye’s parole status gave him a more compelling motive than Mendez to shoot
Officer McDonald. However, the California Supreme Court could have concluded
that there was no reasonable probability of a different outcome if this motive
evidence had been presented. Mendez has not shown that parolees who are
passengers in cars that commit moving violations are always or regularly searched.
6
Further, had motive evidence been pursued, it could have drawn more focus to a
gun that was found. That was not the gun used to shoot Officer McDonald and
evidence suggests Dye discarded it as he fled, which would support the view that
Dye was not in fact the shooter. An ineffective assistance of counsel claim will fail
if the conduct can be readily explained as reasonable trial strategy. Murtishaw v.
Woodford, 255 F.3d 926, 951 (9th Cir. 2001).
For Mendez’s remaining claims of ineffective assistance of counsel, he
either raises them for the first time on appeal or did not fairly present them in state
court. Those claims are forfeited, see Miles v. Ryan, 713 F.3d 477, 494 n.19 (9th
Cir. 2013), unexhausted, see 28 U.S.C. § 2254(b); Gentry v. Sinclair, 705 F.3d
884, 901 (9th Cir. 2013), or both, and they are not properly before us.
AFFIRMED.
7