Opinion
CV 22-5904-SSS (E)
01-27-2023
SAULO C. ALVARADO AMAYA, Petitioner, v. RAY MADDEN, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Sunshine Suzanne Sykes, United States District Judge, pursuant to 28 U.S.C. § 636 and General 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on August 18, 2022. Respondent filed an Answer on October 13, 2022. Petitioner filed a Traverse on November 23, 2022.
BACKGROUND
A jury found Petitioner guilty of the first degree murder of his father, stepmother, and two half-brothers (Reporter's Transcript ["R.T."] 7202-08; Clerk's Transcript ["C.T."] 1326-33, 1338-40). The jury also found Petitioner guilty of sex crimes against his half-sister: one count of a lewd act on a child under the age of 14; and one count of a forcible lewd act on a child under the age of 14 (R.T. 7208-10; C.T. 1334-35, 1340-41). The jury further found true: multiple-murder allegations (as to all of the murder counts); and lying-in-wait allegations (as to two of the murder counts) (R.T. 7206-07, 7210; C.T. 1330, 1332, 1336, 1339-41). The jury also found true three firearm enhancement allegations with respect to the murder counts (R.T. 7202-08; C.T. 1326-33, 1338-40). Petitioner received a sentence of four consecutive terms of life without the possibility of parole plus four terms of 25 years to life on the murder counts, and a consecutive term of ten years on one of the lewd act counts (R.T. 7553-56; C.T. 1434-36, 1446-49).
The California Court of Appeal affirmed (Respondent's Lodgment 8; see People v. Alvarado, 2021 WL 2409659 (Cal.App. June 14, 2021)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgments 9, 10). The California Supreme Court also summarily denied Petitioner's subsequent habeas corpus petition (Respondent's Lodgments 11, 12).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Alvarado, 2021 WL 2409659. at *1 (Cal.App. June 14, 2021). See Nasby v. McDaniel, 8.3d 10453 F9. 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747. 749 n.1 (9th Cir. 2009).
1. The crimes
a. Late 1998 and early 1999
In 1998 and 1999 Rodolfo Alvarado and his wife Eva ("Veronica") Alvarado lived in a three-bedroom, second-story apartment in South Los Angeles with their 16-year-old son Lorenzo ("Renzo"), their 10-year-old daughter Ashley Melissa, and their four-year-old son Victor. Alvarado was Rodolfo's son from a previous relationship. Alvarado, who was 16 years old, moved into the apartment in the fall of 1998 and attended Crenshaw High School. Alvarado shared a bedroom with his half-brother Renzo.
Ashley testified that in late 1998 or early 1999, as she and a friend played a computer game in one of the bedrooms, Alvarado grabbed Ashley's right hand and placed it against his penis. Ashley felt something "warm" and "wet" on her hand. When Ashley looked at Alvarado, he covered his genitals with his hands and laughed. Ashley, who was 10 years old, did not understand what the substance was, but she was "grossed out" and left the room to wash her hands.
On another occasion Alvarado hit Ashley "really hard" with a belt on her legs, leaving a bruise. On a different day Alvarado choked Ashley with both hands until she began to lose consciousness. Ashley's best friend Erica Reddish, who was nine years old in 1999, was present. Reddish saw the color in Ashley's face change as Alvarado choked her. Another time Reddish saw Alvarado cover Ashley's mouth with his hand until Ashley could not breathe. Both times Reddish told Alvarado to stop and tried to pull his hands away from Ashley's face.
Sometime in March 1999, Ashley told Veronica that Alvarado had hit and choked her. Veronica was "in shock"; she confronted Alvarado and told him he was not permitted to hit Ashley.
Around the same time, Ashley saw Alvarado and Rodolfo arguing in the apartment. Alvarado choked Rodolfo, who tried to push Alvarado away. Alvarado looked "aggressive," and Rodolfo was "pushing off [Alvarado] while [Alvarado] was choking him." Ashley yelled at them to stop. Alvarado stopped choking Rodolfo and walked out.
b. April 26 and 27, 1999
On the morning of April 26, 1999, Rodolfo drove Veronica, Alvarado, Ashley, and Victor to a health clinic for school vaccinations. Renzo was at school at Los Angeles High School. Following the vaccinations, Veronica, Alvarado, Ashley, and Victor took the bus to Los Angeles High School to see Renzo, who was getting out of school. After Veronica spoke with Renzo, Veronica, Alvarado, Ashley, and Victor took a taxi home. Victor went outside to play, and Ashley called a friend to come and play outside. Veronica sat in the dining room facing the window.
Alvarado entered the dining room with a gun in his hand. As Veronica looked out the window, Alvarado shot her in the back of her head. Ashley, who was still speaking to her friend on the telephone, was shocked. Veronica fell to the ground and made a gurgling noise. Ashley walked to Veronica, and Alvarado took the telephone from her hand and hung it up. Ashley threw some cups on the floor in an effort to compel Veronica to react, but Veronica did not respond.
A few minutes later Victor came back inside with a toy in his hand and ran into his bedroom. Alvarado told Ashley to follow Victor into the same bedroom. Alvarado pointed the gun at Victor's face; Victor swatted it away. Alvarado again pointed the gun at Victor and shot him in the face from about three feet away. Victor fell to the ground.
After Alvarado shot Victor, Ashley was in shock and "couldn't really comprehend anything anymore." Alvarado told Ashley to get on the bed. Alvarado pulled down Ashley's pants and underwear and pinned her arms above her head. Alvarado took out his penis and rubbed it against Ashley's vagina and body. Ashley kicked and screamed for Alvarado to stop. Ashley felt "helpless and scared." After about five minutes, Alvarado stopped and got dressed.
Ashley dressed and walked to her parents' bedroom. Alvarado followed her. Alvarado made statements about the grim reaper, and that he disliked that Ashley's family had his father but Alvarado did not. Alvarado went to the closet in Renzo's bedroom and retrieved an ashtray with a grim reaper design on it. Alvarado told Ashley the ashtray gave bad luck and would possess anyone who put ashes in it. Alvarado also told Ashley that when he lived with his grandmother in Guatemala, he had seen the devil in the hallway of her house.
Alvarado put the gun on the bed in Renzo's room; Ashley picked it up and pointed it at Alvarado. Alvarado laughed. He told Ashley the safety was on, and he took the gun from her. Ashley went to her parents' bedroom. She was in shock and scared. Ashley cried herself to sleep.
When she woke up, it was dark outside and the apartment lights were off, but light was coming in through the windows. Ashley estimated it was 10:00 p.m. or 11:00 p.m. Ashley found Alvarado in Renzo's bedroom, looking out a window. Ashley walked over to see what Alvarado was looking at. As Ashley looked out the window, Renzo arrived home, entered the bedroom, and asked Ashley what she was doing. Ashley turned to face Renzo, and saw that Alvarado had moved behind the bedroom door. Alvarado raised the gun and shot Renzo in the face from three to four feet away. Renzo fell to the ground, and Alvarado left the room.
Minutes later Rodolfo appeared at the bedroom door. Alvarado shot Rodolfo and he fell to the ground. Rodolfo began crawling down the hallway. Alvarado walked to Rodolfo, looked at him for a few seconds, and shot him again. Ashley returned to her parents' bedroom and cried herself to sleep again.
Ashley was awakened between 6:00 a.m. and 7:30 a.m. the next morning by the sound of her neighbor Graciela Reyes knocking on the front door. Reyes was Veronica's coworker, and each
morning Reyes and Veronica would leave for work together. Ashley walked to the living room; Alvarado stood next to her. Alvarado gestured for Ashley to remain quiet. Ashley was "terrified." Reyes knocked for a minute or so and then left for work. Alvarado told Ashley to put on her shoes, and he retrieved the car keys from Rodolfo's body.
Alvarado drove Ashley in Rodolfo's car down the street, where he picked up a friend Ashley did not know and had never seen before. Ashley described the friend, who was later identified as Marvin Escobar, as male, Hispanic, and about Alvarado's age. Escobar got into the front passenger seat, and Alvarado drove to a gas station. Alvarado and Escobar got out of the car and spoke to each other; Escobar returned to the car and asked Ashley if it was true Alvarado had killed his family. Ashley replied, "Yes." Alvarado dropped Escobar at his house and returned with Ashley to the apartment. Ashley estimated she and Alvarado had been away from the apartment for 15 or 2 0 minutes.
When Alvarado and Ashley were back inside the apartment, Ashley was "very distraught." Alvarado told Ashley to call 911 and to ask for someone who spoke Spanish. Ashley called 911 from the living room at 9:01 a.m. During the call, Ashley saw Alvarado wiping the gun with a rag and walking
towards Renzo's bedroom. Alvarado then took the telephone from Ashley to speak to the 911 operator. Ashley went to Renzo's bedroom and saw that Alvarado had placed the gun in Renzo's hand. She also saw that a candle had been placed near Renzo's body.
Alvarado and Ashley went outside to wait for the police. Alvarado told Ashley to tell the police he had been taking her to school but she had forgotten her backpack, and when they returned to the apartment to retrieve the backpack they had discovered the bodies. Alvarado told Ashley he would kill her if she refused.
Police officers, including Los Angeles Police Officer Jay Nam, arrived at the apartment at 9:05 a.m. The door was ajar; once it was opened, Officer Nam immediately smelled natural gas and saw Rodolfo's body lying in the hallway. Officer Nam entered the apartment and found the other three bodies.
2. The 1999 investigation
a. The crime scene
Homicide detectives arrived at the apartment at 10:05 a.m. Rodolfo's body was covered by a blanket. Veronica's body was face up on the floor of the parents' bedroom. The body had been draped with a blanket and there was a pillow under
her head. Veronica's body had livor mortis discoloration (discoloration from blood pooling in the tissue) on her right knee, which was inconsistent with the position of her body, indicating that someone had moved her body after her death. Victor's body was lying on its side, partially covered by a blanket, with a toy near his left hand. Livor mortis discoloration indicated Victor's body had been moved after death. Victor's face showed discoloration that indicated the body had been face down at some point.
Renzo's body was face up on the floor of his bedroom. A six-shot .22-caliber revolver with five expended shell casings and one live round was in Renzo's hand. The serial number on the gun had been scratched out, andWAK" had been etched on the frame. Police found a box of ammunition in Renzo's jacket pocket, and additional .22-caliber rounds and spent casings in the apartment. A red candle with a recently-lit wick was on the floor near Renzo's body.
b. Initial police interviews
Police brought Ashley and Alvarado to the police station at 10:30 a.m. The homicide detectives believed they were surviving family members and did not consider them suspects. Detectives interviewed Ashley for 10 or 15 minutes. Ashley was "very upset," crying, and reserved. The detective did not want "to push her," and the interview was not recorded. Afraid of Alvarado, Ashley repeated the story he had
instructed her to tell.
Detectives interviewed Alvarado for approximately 3 0 minutes. His interview was recorded and played for the jury. Alvarado told Detective Terrence Fathauer that earlier that morning he took Ashley to school and picked up his friends Marvin Escobar and Marvin Estrada. Alvarado said he had left his backpack at home, so he and Ashley returned to the apartment. Alvarado said he immediately smelled gas, and turned off four gas burners on the stove. He said he heard a "gurgling" sound from Rodolfo, and he checked Rodolfo for a pulse. Alvarado told Detective Fathauer he then discovered the other bodies.
At a second interview two weeks later, Alvarado denied moving Victor's body. Alvarado said he had blown out the candle next to Renzo's body. Alvarado gave the detectives a drawing he had made that showed four graves for his family members, along with his name and jail cell bars. Alvarado claimed to have fired the gun the afternoon before the murders, and said that Renzo fired the gun "almost daily" from the window of his bedroom.
Ashley's uncle (Veronica's brother) and his wife picked up Ashley from the police station on April 27, 1999 and took her to their house. Officers asked if they would take Alvarado too, but Ashley told her uncle and a detective she did not want Alvarado near her. Because Alvarado did not
have any family member to take custody of him, the police placed him with the Department of Children and Family Services.
A few days later Ashley and Alvarado attended a joint funeral for the family. Reddish saw Alvarado at the funeral "sweating and look[ing] stressed out." Reddish testified Alvarado "looked like he was shaking and there were gangbangers there threatening to kill the person who did it." Alvarado approached Ashley at the funeral, but she was "terrified of him" and got up and left. Ashley did not see or speak to Alvarado again.
c. The medical examiners' conclusions
Medical examiners testified about the results of the autopsies performed in 1999. Rodolfo had two fatal gunshot wounds to the left side of his head and one grazing gunshot wound to the left chin. Victor was killed by a single gunshot to the right temple that had been fired while the gun muzzle was pressed against his skin.
Veronica was killed by a single gunshot to the back of her head. The decomposition of Veronica's blood and organs was consistent with Veronica having been dead for approximately a day before her body was placed in cold storage at the coroner's office on April 27, 1999.
Renzo was killed by a single gunshot to the forehead that had been fired from a distance of six to 24 inches. Dr. Ogbonna Chinwah, the medical examiner who performed Renzo's autopsy, concluded Renzo had committed suicide. Dr. Chinwah testified Renzo's autopsy "was given to me just to — just quickly get it out of the way." He testified Renzo's autopsy "was assigned to me by the supervisor. The supervisor concluded it was a suicide and gave it to me as a suicide. And I just went over it and moved the thing away . . . . And so that's how that case went."
d. Police deem the case a murder-suicide perpetrated by Renzo
On April 29, 1999, Detective Debra Winter, the senior detective on the case, opined [that] the crime was a murder-suicide perpetrated by Renzo. Detective Winter based her conclusion on the statements police had taken from Alvarado and Ashley and on finding the gun in Renzo's hand. Detective Winter had not reviewed the 911 call and had not obtained the results of gunshot residue analysis of Renzo's hands.
Gunshot residue tests were performed in May 1999. Renzo did not have gunshot residue on either hand. Rodolfo had gunshot residue on his hands consistent with having fired a gun, having touched a surface that had gunshot residue on it, or having been shot. When the police received the results of the gunshot residue tests, Detective Winter had
already closed the case, having concluded Renzo had killed his family and himself.
Ballistics testing showed the bullets recovered from the bodies had been fired from a. 22-caliber gun. The bullet recovered from Renzo's body had been fired from the gun found in his hand; the other bullets were too deformed to determine conclusively whether they had been fired from that gun.
Detective Fathauer reviewed the transcript of the 911 call one-and-a-half weeks after the murders. The recording of the 911 call was played for the jury. Detective Fathauer testified Alvarado's statements on the call made him somewhat suspicious because, unlike a typical caller in similar circumstances, Alvarado offered extraneous information unrelated to the discovery of his family's bodies. Detective Fathauer also noted Alvarado did not mention the smell of gas.
3. The 2012 investigation
a. Ashley comes forward
Ashley did not speak about the murders for 13 years. When she started junior high school, her uncle told her to "bury it" and not to talk about it. During those years, Ashley was afraid of Alvarado, did not want to be accused of lying,
and did not believe she could cope with revealing the truth. When family members asked Ashley about the murders, or suggested she see a therapist, she responded she did not want to discuss it.
In 2012, when Ashley was 23 or 24 years old, she was "very depressed" because "of the secret that [she] had to hold for so long." She "didn't know how to deal with it anymore." After taking an Ecstasy pill, drinking alcohol, and smoking marijuana, Ashley told her roommate Silvia Sikaffy "everything" about what Alvarado had done, "step-by-step." Sikaffy told Ashley to report the crimes to the police, but Ashley was afraid of Alvarado and did not know if she "was even going to be able to handle going through it."
On October 10, 2012, a month or two after speaking to Sikaffy, Ashley went with a friend to the 77th Division police station and spoke with Detective Mark Hahn. Ashley told Detective Hahn she had witnessed Alvarado murder her family, and Alvarado had "pinned" the blame on Renzo. Ashley testified she came forward because "[her] brother Renzo needed justice," and "we needed to clean [sic] our name."
After Detective Hahn interviewed Ashley, he requested DNA testing of a swab taken from blood in the dining room. The DNA profile matched Veronica's DNA profile, which verified Ashley's statement that Veronica had been shot in the dining
room.
Detective Halm interviewed Ashley again on October 24, 2012 and June 12, 2013. Ashley answered questions about the murders, and she described the incidents in which Alvarado choked her and put her hand against his penis after ejaculating. Ashley's October 10 and 24, 2012 police interviews were recorded and played for the jury.
b. The medical examiner concludes Renzo was murdered
In 2013 Dr. Chinwah reviewed his 1999 autopsy of Renzo's body and concluded Renzo's death was a homicide. Dr. Chinwah testified that he changed the manner of death from suicide to homicide because the coroner's office "received additional information from the police department . . . that someone who did the killing wiped the gun off, wiped it and then placed it in the hand of [Renzo]." In addition, in 2013 Dr. Chinwah had the results of the 1999 gunshot residue tests that showed no gunshot residue on Renzo's hands. Dr. Chinwah had closed the case in April 1999 without receiving the results of the gunshot residue tests.
4. Witness testimony
a. Prosecution witnesses
i. Marvin Escobar
Marvin Escobar was 16 years old in 1999 and Alvarado's "close friend." Escobar lived down the street from the Alvarados. Once when Escobar was at the Alvarados' apartment, Alvarado and Renzo showed him a gun.
Around 7:20 a.m. on the morning after the murders, Alvarado and Ashley arrived in Rodolfo's car to pick up Escobar. Escobar asked Alvarado why he was driving Rodolfo's car because Rodolfo did not permit him to drive it. Alvarado seemed nervous and did not respond. Escobar "kept asking [Alvarado] what was going on"; Alvarado said he had killed his parents.
Alvarado stopped at a gas station to buy rolling papers so he and Escobar could smoke marijuana. Alvarado then drove toward Crenshaw High School. Escobar told Alvarado he wanted to "find out if it was true" that Alvarado had killed his parents, so Alvarado drove Escobar and Ashley back to the apartment.
Escobar and Alvarado left Ashley in the car and went upstairs to the apartment. As Alvarado opened the door, Escobar saw Rodolfo's body in the hallway. Escobar jumped over Rodolfo's body and found Renzo's body. Escobar saw a lighted candle near Renzo's body and a gun in Renzo's hand. Alvarado told Escobar he had turned the stove on; Escobar, fearing an explosion, told Alvarado to turn it off. Escobar told Alvarado he was leaving and that Alvarado should call the police.
Escobar went to school, returned home that afternoon, and went to a park. Police arrested Escobar that afternoon for a probation violation. Escobar did not tell the police about the murders. During a 2012 police interview, Escobar lied to the police and did not tell them about the murders because Escobar was in the country illegally and was afraid he would be taken into immigration custody. During a subsequent police interview in 2013, Escobar told the police Alvarado had confessed to the murders and Escobar had seen the bodies.
Escobar did not see Alvarado for about a year after the murders, when Alvarado arrived at Escobar's house with some friends. Alvarado told Escobar he could no longer smoke marijuana because his conscience was bothering him.
ii. Monica Becerra
Monica Becerra was Alvarado's girlfriend in 2003, when she was 19 years old. Becerra testified that when she and Alvarado lived together in 2 003 Alvarado told her he had murdered his family and "made it seem like" Renzo was the killer. Alvarado told Becerra his mother had told him how to commit the murders, he had been hearing voices, and a dragon statue had been telling him what to do. Alvarado's mother was present one of the times Alvarado confessed to Becerra; she told Becerra, "Oh, don't listen to him. He's crazy." Alvarado told Becerra he would get away with the murders "because he will come out of there like crazy."
iii. Lee Jarmon
Lee Jarmon was Renzo's best friend, and he lived with the Alvarados for a few months in 1998 and 1999 when he was 18 years old. Jarmon moved out a few weeks before the murders. Jarmon told detectives Renzo had a gun, and that Jarmon had seen both Alvarado and Renzo with a gun in the apartment.
Jarmon and Renzo had made plans to meet the morning the bodies were discovered. Jarmon drove to Renzo's apartment and saw Alvarado, Ashley, and Escobar in Escobar's front yard. Rodolfo's car was parked in front of Escobar's house. Jarmon rolled down his window and asked Ashley, "Why aren't you in school?" Ashley appeared "real nervous" and
"scared." Jarmon had never before seen Alvarado driving Rodolfo's car, and he had never seen Alvarado alone with Ashley on the street. Jarmon asked Alvarado why he had Rodolfo's car; Alvarado responded "Atlanta, Georgia." Jarmon said, "Bullshit. They didn't say they were going to Atlanta, Georgia."
Jarmon pulled into the back of the apartment complex and blasted his car stereo to get Renzo's attention, but Renzo did not come to the window as he usually did. Jarmon ran upstairs and banged on the apartment door. After about 15 minutes Jarmon drove away; Alvarado, Ashley, and Escobar were still outside.
iv. Jazmin Nunez
Jazmin Nunez was 15 years old in 1999. She met Alvarado at Crenshaw High School, and they began dating. Alvarado told Nunez he loved his sister Ashley very much, but he hated his father because his father had left him in Guatemala.
Nunez testified that Alvarado was "very kind, very nice" at the beginning of their relationship, but later "he turned into someone else" and "became violent." One day at school Alvarado became angry when Nunez hugged a male friend.
Alvarado pulled Nunez by the wrist and called her a "bitch" and "his property," and said Nunez needed to respect him.
Later that day, Alvarado and Nunez went to the Alvarados' apartment, which was empty. Alvarado yelled at Nunez and pushed her onto the parents' bed. Alvarado turned Nunez over, pinned her hands above her head, pulled her pants down, and forcibly raped her while she was face down. Nunez struggled and screamed for Alvarado to stop and that he was hurting her. When Alvarado finished, he "got up like nothing" and took a shower. Nunez walked home. A few days later, Nunez went back to the apartment to ask Alvarado, "[W]hy did he rape me?" Another girl answered the door. Nunez left crying.
At school after the murders, Escobar told Nunez that Alvarado had confessed to killing his family. Nunez told her parents, who told her to not to speak to the police because they were immigrants and did not "want to get in trouble." Nunez's mother also said that if Alvarado had killed his family, he might also kill Nunez if she "snitch[ed]." Alvarado called Nunez and invited her to the family funeral, but her mother would not permit her to attend. During the call, Nunez asked Alvarado, "Did you kill your family?" Alvarado did not answer, and after a moment of silence, Alvarado hung up.
v. Yessika Diaz
Escobar told his neighbor Yessika Diaz, who was 14 or 15 years old in 1999, that Alvarado had confessed to the murders. Diaz told her friend Cindy Rivera. Diaz did not tell the police because Escobar had told her not to say anything, and because "back then [Diaz] was small and [she] was scared."
Two or three weeks before the murders, Diaz was at the Alvarados' apartment with Alvarado, Renzo, Escobar, and another girl. Alvarado "pulled out a gun" and "shot out the window." Diaz was "scared" and thought Alvarado "was out of his mind."
vi. Alice Hargrave
Alice Hargrave was approximately 15 years old in 1999, and lived in the apartment directly above the Alvarados. Hargrave knew the family well and would occasionally babysit Victor. Renzo was "very protective" of Ashley and Victor.
On or about January 22, 1999 Alvarado came to Hargrave's apartment complaining of a headache. Hargrave gave him a bottle of aspirin. Later that night or the next night, paramedics responded to a 911 call that Alvarado had overdosed on Tylenol. Alvarado told paramedics he had taken
four Tylenol PM tablets "to kill himself." As paramedics carried Alvarado out of the apartment complex on a stretcher, Hargrave heard Alvarado crying and saying, "They don't love me. My brothers don't love me. . . . [T]hey only take up for my sister and brothers."
Hargrave testified Alvarado and Renzo showed her a gun in Renzo's bedroom before the murders. She also testified that on the morning the bodies were discovered she heard Victor having a tantrum, that he suddenly stopped, and that she heard loud music after Victor stopped crying. Hargrave attended the family funeral; she saw Alvarado approach Ashley, who "retreated and left."
vii. Cindy Rivera
Cindy Rivera was 15 or 16 years old in 1999. She knew Alvarado and Escobar. A week or two before the murders, Rivera was at the Alvarados' apartment with Alvarado, Renzo, Diaz, and another girl. Alvarado "took out a gun" and "start[ed] firing outside the window." Rivera was "scared" and thought Alvarado was "going crazy" and "was going to do something to [them]."
viii. Graciela Reyes
In addition to her testimony about knocking on the Alvarados' door on April 27, Graciela Reyes also told detectives that a week or so before the murders Alvarado and Renzo had a fight. Veronica slapped Alvarado in an effort to separate Alvarado and Renzo. Veronica told Reyes that after she slapped Alvarado, he "looked at her in a very mean way" and his eyes "turned like those of a monster." Alvarado was "very angry," and he told Veronica no "old lady" had ever touched him. Reyes also testified Renzo "got along well" with Veronica, and "adored" Victor.
ix. Expert testimony
Wilson Hayes testified as an expert in injury biomechanics. Hayes opined the likelihood that Renzo committed suicide was "extremely low." He also opined that, in light of the gunshot to Renzo's brain, it was "extremely unlikely" that as Renzo fell to the ground he would have been able to maintain his grasp on the gun and his finger on the trigger. In addition, if Renzo had fired the gun five or six times, there was an "extremely low probability" he would not have any gunshot residue on his hands. Hayes further concluded that when the gun was fired, the muzzle was six to 24 inches from Renzo's head, and that the bullet trajectory made it "physically impossible" for Renzo to have fired the shot.
Mindy Mechanic, a psychologist, testified that most incidents of sexual violence against children are neither reported nor acknowledged, but that even individuals who acknowledge they have been sexually abused do not report or disclose the abuse, especially during childhood. Mechanic testified that between 55 and 75 percent of people sexually abused as children disclose the abuse for the first time as adults.
b. Defense witnesses
i. Marvin Estrada
Marvin Estrada and Escobar were close friends and attended Crenshaw High School with Alvarado. On the morning the bodies were discovered, Estrada went to Escobar's house to walk to school with him. Alvarado was there with Ashley in a four-door car; Ashley "looked like she was sick, or something was wrong with her." Alvarado drove Estrada and Escobar to school and dropped them off. A few days after the murders Escobar told Estrada and two other people that Alvarado had killed his family.
ii. Linda Jarmon
Lee Jarmon's mother, Linda, lived across the street from the Alvarados in 1999. On the morning the bodies were discovered, she heard gunshots "early that morning," but
could not determine where they had come from.
iii. Willette Huntley
Willette Huntley lived across the street from the Alvarados in 1999 and knew Renzo. About eight months before the murders, Renzo came to Huntley's house crying and with a black eye. Renzo said his grandfather and father were hitting him. On another occasion, Renzo said he wanted to kill his father and protect his family from his father.
Huntley heard gunshots the morning the bodies were discovered, but she did not know where they had come from. Huntley told a detective in 2012 she heard the gunshots coming from Renzo's apartment and the apartment door was ajar.
iv. Lucila Reyes
Lucila Reyes lived on the third floor of the Alvarados' apartment complex in 1999. She knew the Alvarado family because her mother Graciela Reyes worked with Veronica. Lucila Reyes last saw Veronica in the late afternoon or early evening the day before the murders; Veronica was with
Ashley and Victor. Veronica seemed sad and quiet.
v. Expert testimony
Jason Tovar, the chief forensic pathologist at the Sacramento County Coroner's Office, testified as a cause-of-death expert for the defense. Tovar opined it was not possible to determine conclusively the source of bloodstains on Renzo's sleeve. Tovar described a study that showed that in only 50 percent of firearm suicides is gunshot residue found on the victim's hand. Tovar testified Renzo could have maintained sufficient motor function in his right hand after the shooting to hold onto the gun, but that it was also possible Renzo's wound was immediately incapacitating.
Iris Blandon-Gitlin, a research psychologist, gave expert testimony for the defense about false memories and the limitations of human memory. Blandon-Gitlin testified that human memory does not record even consequential traumatic events "like a video camera," and that memories fade over time. Blandon-Gitlin also explained that people can develop false memories of events that did not occur, and that repeating a memory, whether true or false, makes the memory stronger.(Respondent's Lodgment 8, pp. 2-21; see People v. Alvarado, 2021 WL 2409659. at *1-10 (footnotes renumbered)).
For clarity we refer to Rodolfo Alvarado, Veronica Alvarado, Renzo Alvarado, Ashley Alvarado, and Victor Alvarado by their first names.
Ashley was 2 9 years old when she testified at the trial.
Ashley testified her family had one car, which Rodolfo drove, and that Rodolfo never let Alvarado borrow or drive the car.
Following the 2012 investigation, Alvarado was arrested in Guatemala and extradited to the United States. Detective Hahn interviewed Alvarado in custody; the interview was recorded and played for the jury.
Escobar was deported to El Salvador in 2017. He was flown to the United States for Alvarado's trial and was in custody when he testified. Escobar stated he was not testifying in exchange for any "offers or deals."
Detective Winter testified Jarmon said during a police interview that he went to the apartment before he saw Alvarado, Ashley, and Escobar that day. Detective Winter also testified Jarmon identified Escobar as "Merlin."
Ashley testified Alvarado once told her he wanted to kill himself.
Hargrave's sister Anita Hargrave testified she heard Alvarado complain Rodolfo treated him differently than the other siblings.
Los Angeles Police Officer Owen Mills testified he interviewed Huntley at approximately 9:50 a.m. on April 27, 1999. Officer Mills asked Huntley if she had heard any gunshots; Huntley said no. Huntley did not tell Officer Mills Renzo said he wanted to kill his father.
PETITIONER'S CONTENTIONS
Petitioner contends:
1. Petitioner allegedly is being unlawfully restrained in violation of a treaty between the United States and Guatemala (Ground One);
2. "California Courts" allegedly did not have jurisdiction over Petitioner, such that Petitioner supposedly should be released and returned to Guatemala (Ground Two);
3. The State allegedly destroyed material, exculpatory evidence (Ground Three);
4. Petitioner's trial counsel allegedly rendered ineffective assistance, by assertedly failing to: (a) consult a "time of death" expert; (b) introduce a written statement allegedly made by Ashley during the 1999 investigation; and (c) "object or raise a destruction of evidence claim" (Grounds Three and Four);
5. The prosecutor allegedly committed misconduct, by assertedly: (a) vouching for Ashley's credibility; and (2) referring to facts not in evidence (Ground Five).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that 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) "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): Woodford v. Visciotti, 537 U.S. 19. 24-26 (2002); Early v. Packer, 537 U.S. 3. 8 (2002); Williams v. Taylor, 529 U.S. 362. 405-09 (2000) .
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34. 38 (2011); Lockyer v. Andrade, 538 U.S. 63. 71-72 (2003). A state court's decision is "contrary to" clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510. 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179. 190 (2009); Davis V. Woodford, 384 F.3d 628. 637-38 (9th Cir. 2004), cert, dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it 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 this Court." Harrington v. Richter, 562 U.S. 86. 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 142 S.Ct. 1510. 1528 (2022) (under AEDPA, federal habeas court must "assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim") (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188. 1193-97 (2 018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it 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 this Court." Harrington v. Richter, 562 U.S. at 102: see also Cullen v. Pinholster, 563 U.S. 170. 188 (2011).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724. 736-37 (9th Cir. 2008) (en banc).
The Court has read, considered and rejected all of Petitioner's arguments. The Court discusses Petitioner's principal arguments herein.
I. Petitioner's Claim That He Is Being Held In Violation of a Treaty Does Not Merit Federal Habeas Relief.
A. Background
The prosecution initiated the proceedings against Petitioner in 2013 by filing a criminal complaint in the Superior Court's adult division (C.T. 12; see R.T. 5127). Petitioner alleges that, on July 14, 2014, he was arrested in Guatemala on purportedly unclear charges, supposedly without an arrest warrant (Petition, ECF Dkt. No. 1. p. 9)- Petitioner alleges that, on July 14, 2014, the Guatemalan Ministry notified the United States of Petitioner's apprehension and requested "affidavits of extradition" including an arrest warrant, the "charges," a "victim statement" and "statue [sic] of limitation on charges" (id.). According to Petitioner, on August 20, 2014, Detective Hahn met with prosecutors to obtain "affidavits for extradition" purportedly signed by Hahn, the prosecutor and the judge (id., pp. 9-10). Petitioner alleges that, on September 16, 2014, the United States Embassy in Guatemala received "affidavits for extradition," but the warrant purportedly was backdated and the affidavit allegedly identified Petitioner incorrectly as a United States citizen (id., p. 10). Petitioner allegedly was transported illegally to the United States on February 25, 2015 (id.) .
The Petition and attachments thereto do not bear consecutive page numbers. Accordingly, the Court uses the ECF pagination when referring to the Petition or the attachments thereto.
Petitioner also alleges that a federal judge previously deported Petitioner in 2006 (Petition, ECF Dkt. No. 1. p. 10).
An exhibit to the Petition titled "Chronological Record" contains entries stating that, on February 27, 2015, after Petitioner was extradited, the prosecutor allegedly advised Detective Hahn that the case should be filed in juvenile court "due to Direct Filing not being in place in 1999" (id., p. 74) . At some point, the case was refiled in juvenile court (R.T. 512 7-2 8; C.T. 12-13). The "Chronological Record" states that a juvenile court judge allegedly set a fitness hearing for April 8, 2015 (id.).
Although the "Chronological Record" reflects a date of "2-27-14," this entry appears to be a typographical error, as the entry occurs after "2-25-15" and before "3-2-15" (Petition, p. 74) (emphasis added).
The adult court's later dismissal is discussed in section II below.
Petitioner sought dismissal in the juvenile court on the ground that the government assertedly had obtained Petitioner's extradition fraudulently (R.T. 16-17; C.T. 13) . After a hearing, the court denied the motion (R.T. 16; C.T. 13). Following a fitness hearing, the court found Petitioner unfit for consideration as a juvenile offender and transferred the case back to the adult court (C.T. 12-13). According to Petitioner, on February 27, 2016, the adult court dismissed the case for lack of jurisdiction (id., p. 10). However, Petitioner was arraigned in adult court on April 26, 2016 (R.T. A-1 -A-5) .
The record does not contain this motion or the order denying the motion.
On July 31, 2017, prior to the preliminary hearing, Petitioner's counsel asserted a "continuing objection" based on allegedly improper conduct in securing Petitioner's extradition (C.T. 13). Petitioner's counsel argued that there purportedly had been a "subversion of the treaty between the United States and Guatemala in that the documents that were provided to the State Department and ultimately to the Guatemala [sic] authorities were intentionally false" (id.). Counsel said "the statements that were signed by the investigating officer were false" (id.). In response, the prosecutor conceded that, in a statement in support of the extradition, a detective had indicated that Petitioner was both a Guatemalan citizen and a United States citizen, an indication that was incorrect because Petitioner was not a United States citizen (C.T. 14). However, the prosecutor also stated that all of the documents sent to Guatemala had indicated that Petitioner was a Guatemalan citizen, not a United States citizen, that Petitioner had been "represented" in the proceedings in Guatemala, and that "they know what his status is" (id.). The prosecutor further stated that the juvenile court already had determined that the extradition was proper, and that, hence, the matter was not properly before the court (id.). The court agreed that the matter was not before it (C.T. 15).
In a subsequent pretrial hearing on February 18, 2018, Petitioner's counsel said counsel understood that the prosecution had filed a petition for extradition with the State Department that included the complaint and declarations by counsel and "the detective" (R.T. D-44). Petitioner's counsel said that the State Department gave extradition papers "to the Guatemalan court, which in turn gave them to [Petitioner] and his attorney" (id.). Counsel said the matter "was discussed extensively in Guatemala" and that the extradition proceedings had "lasted about six months, eight months" (R.T. D-45).
Petitioner contends that the extradition violated the treaty between the United States and Guatemala, arguing that: (1) the adult court in which the case originally was filed purportedly lacked jurisdiction, and the adult court supposedly was not the "competent authority" assertedly required by the treaty; and (2) the extradition assertedly was secured by "false pretenses," including an allegedly backdated arrest warrant and a purportedly false statement that Petitioner was a citizen both of the United States and Guatemala (Petition, ECF Dkt. No. 1. pp 11-12). In conclusory fashion, Petitioner also alleges that the government unlawfully "abducted" Petitioner (Traverse, pp. 8-9). Petitioner raised his extradition challenges in his California Supreme Court habeas petition, which that court denied summarily (Respondent's Lodgment 11, ECF Dkt. No. 14-36. pp. 3. 10-13: Respondent's Lodgment 12).
In applying the AEDPA standard of review, a federal habeas court must "assess the reasonableness of the last state-court [reasoned] adjudication on the merits of the petitioner's claim" Brown v. Davenport, 142 S.Ct. at 1528. Here, as indicated above, the juvenile court rejected Petitioner's challenge to the extradition after a hearing. However, the present record does not contain the actual decision of the juvenile court.
Nevertheless, for the reasons discussed below, Petitioner has not demonstrated that the extradition violated "the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a): Frantz v. Hazey, 533 F.3d at 736-37. Furthermore, under either the standard of review applicable to reasoned state court decisions or the standard applicable to state court summary denials, see Harrington v. Richter, 562 U.S. at 102. Petitioner has failed to demonstrate that the state courts' rejection of this claim was objectively unreasonable. See 28 U.S.C. section 2254(d).
B. Analysis
"There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will." Frisbie v. Collins, 342 U.S. 519. 522 (1952); see also Ker v. United States, 119 U.S. 436. 444 (1886) ("The question of how far [the defendant's] forcible seizure in another country, and transfer by violence, force, or fraud to this country, could be made available to resist trial in the state court for the offense now charged upon him, is one which we do not feel called upon to decide; for in that transaction we do not see that the constitution or laws or treaties of the United States guaranty him any protection."). "[T]he power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.'" Frisbie v. Collins, 342 U.S. at 522 (footnote omitted). "An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." United States v. Crews, 445 U.S. 463. 474 (1980) (citations omitted) (citing, inter alia, Frisbie v. Collins, 342 U.S. at 522. and Ker v. Illinois, 119 U.S. 436. 443-44) (1886) (footnote omitted).
"Nor is invalid extradition a sufficient ground upon which to grant habeas relief once the fugitive is present in the jurisdiction from which he fled." Weilburq v. Shapiro, 488 F.3d 1202. 1206 (9th Cir. 2007) (citations omitted) (in civil rights case, allegations that state officials ignored established extradition procedures and effectively kidnapped plaintiff did not invalidate plaintiff's incarceration in state to which he was extradited, citing Frisbie v. Collins and Ker v. Illinois); Eckert v. Tansy, 936 F.2d 444. 450 (9th Cir. 1991) ("Eckert cannot be granted habeas corpus relief on the ground of illegal extradition.") (citation omitted); Hunt v. Eyman, 405 F.2d 384. 834-35 (9th Cir. 1968), cert. denied, 394 U.S. 1020 (1969) (even if habeas petitioner's allegation that his extradition was illegal were true, "that would not entitle him to the writ") (citing, inter alia, Frisbie v. Collins and Ker v. United States).
The present record does not contain a copy of the applicable treaty. The Court takes judicial notice of the "Treaty Between the United States and the Republic of Guatemala for the Mutual Extradition of Fugitives from Justice, etc.," 33 Stat. 2147 (U.S. Treaty), 1903 WL 17011 (proclaimed July 17, 1903), supplemented, 55 Stat. 1097 (U.S. Treaty), 1941 WL 38990 (U.S. Treaty) (proclaimed March 3, 1941) ("Treaty"). The Treaty contains no provision regarding the abduction of a foreign national. See United States v. Alvarez-Machain, 504 U.S. at 663-79 (holding that, because the applicable treaty was silent regarding the obligations of the Treaty partners with respect to forcible abductions, the alleged abduction did not violate the treaty, and hence Alvarez-Machain could be tried in a United States court for violations of United States law). In any event, Petitioner alleges no facts (as distinguished from conclusions) demonstrating that he was brought to this country by "forcible abduction." Petitioner was extradited, not abducted. An extradition is not the equivalent of a forcible abduction.
The amendments contained in the 1941 Supplemental Treaty did not change the text of Article V. Petitioner's apparent challenge to the Treaty on the ground that the Guatemalan representative, Don Antonio Lazo Arriaga, was not the president of Guatemala at the time the Treaty was signed (see Petition, ECF Dkt. No. 1. p. 10). is without merit. The Treaty identified the appointed Treaty Plenipotentiaries as United States Secretary of State John Hay and Senor Arriaga. It did not identify Arriaga as the Guatemalan president.
The treaty at issue in United States v. Alvarez-Machain, 504 U.S. 655. 662 (1992) contained a provision similar to Article V of the Treaty at issue in this case, quoted above. See United States v. Alvarez-Machain, 504 U.S. at 663. The Supreme Court rejected the contention that this provision impliedly forbade one country from using other methods (such as abduction) to gain custody of a national of the other country for the purpose of prosecution. Id. at 664.
Petitioner's contention that the extradition supposedly violated the Treaty because Petitioner was a citizen only of Guatemala, not the United States, also lacks merit. The Treaty says nothing concerning errors or falsehoods in extradition papers, deliberate or otherwise. Furthermore, Article V of the Treaty provides: "Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this conviction, but the executive authority of each shall have the power to deliver them up, if, in its discretion, it be deemed proper to do so." Thus, under the Treaty, Guatemala properly could (and apparently did) "deliver up" Petitioner for extradition even though Petitioner was not a United States citizen and was a citizen of Guatemala.
Petitioner's contention that the extradition purportedly violated the Treaty because the state court supposedly lacked jurisdiction and hence was not a "competent" court (see Treaty, Art. IX) also lacks merit. In California, "the juvenile court and the criminal court are divisions of the superior court, which has subject matter jurisdiction over criminal matters and civil matters, including juvenile proceedings." Manduley v. Superior Court, 27 Cal.4th 537. 548 n.3, 117 Cal.Rptr.2d 168. 41 P.3d 3 (2002) (citation omitted); see Cal. Welf. & Inst. Code § 245 ("Each superior court shall exercise the jurisdiction conferred by this chapter, and while sitting in the exercise of such jurisdiction, shall be known and referred to as the juvenile court."). "Accordingly, when we refer ... to the jurisdiction of the juvenile court or the jurisdiction of the criminal court, we do not refer to subject matter jurisdiction, but rather to the statutory authority of the particular division of the superior court, in a given case, to proceed under the juvenile court law or the law generally applicable in criminal actions." Manduley v. Superior Court, 27 Cal.4th at 548 n.3 (citation omitted).
The Treaty specifies, inter alia, that a "competent authority" issue the warrant for the arrest of the fugitive. See Treaty, Art. IX.
In federal criminal prosecutions, the Ninth Circuit has recognized "an exception to the Ker/Frisbie doctrine" where the government engages in "outrageous misconduct" to obtain a defendant's presence. See United States v. Struckman, 611 F.3d 560. 571 (9th Cir. 2010) (citations omitted). Even assuming arguendo that this exception applies in state habeas proceedings, Petitioner fails to allege any facts showing "outrageous misconduct" by the state regarding the extradition. Petitioner's allegation that he was "abducted" is wholly conclusory (see Traverse, p. 9). Morever, even a violent, forcible abduction of an individual in aid of a criminal prosecution in another jurisdiction does not suffice to show "outrageous conduct." See United States v. Alvarez-Machain, 504 U.S. at 669-70: United States v. Matta-Ballesteros, 71 F.3d at 763-64 (kidnapping, interrogation and beating of defendant in foreign country and transportation of defendant to the United States did not suffice to show outrageous government conduct sufficient to merit dismissal).
The Struckman Court identified two "exceptions to the Ker/Frisbie doctrine": (1) violation of the treaty; and (2) outrageous government conduct. See United States v. Struckman, 611 F.3d at 571. As discussed above, Petitioner has not shown that his extradition violated the Treaty.
A federal court's power to dismiss a criminal case for outrageous government conduct in connection with the abduction of a criminal defendant from a foreign country and his or her transportation to the United States derives from the federal court's "inherent supervisory powers." United States v. Matta-Ballesteros, 71 F.3d 754. 763 (9th Cir. 1995), amended on other grounds, 98 F.3d 1100 (9th Cir. 1996), cert, denied, 519 U.S. 1118 (1997). Rules derived from federal courts' "supervisory powers" are ordinarily irrelevant to state prisoners' habeas corpus proceedings under section 2254. See, e.g., Montgomery v. Matteson, 2022 WL 16556042. at *16 n.5 (CD. Cal. Sept. 14, 2022), adopted, 2022 WL 16556011 (CD. Cal. Oct. 31, 2022). Nevertheless, some district courts (perhaps mistakenly) have invoked the "outrageous misconduct" exception in state prisoners' habeas corpus proceedings. See, e.g., MacKenzie v. California Att'y Gen., 2016 WL 5334479. at *16 (CD. Cal. Apr. 11, 2016), adopted, 2016 WL 5339566 (CD. Cal. Sept. 21, 2016); Maldonado v. McDowell, 2015 WL 7964983. at *4 (CD. Cal. Oct. 27, 2015), adopted, 2015 WL 8023016 (CD. Cal. Dec. 2, 2015).
Petitioner's allegations that the extradition documents supposedly contained false statements also do not suffice to show outrageous government conduct. See United States v. Struckman, 611 F.3d at 573-74 (American agents' lies to Panamanian authorities in order to secure defendant's transfer to United States did not constitute outrageous misconduct); see also People v. Salcido, 44 Cal.4th 93. 125. 186 P.3d 437 (2008), cert, denied, 555 U.S. 1143 (2009) (even assuming American officials misrepresented defendant's citizenship status in order to obtain custody of defendant, "as the high court in Alvarez-Machain has explained, such involuntary seizures are neither permitted nor prohibited under the terms of the Treaty. Had defendant's 'abduction' been accomplished by mendacity rather than by force, that circumstance would not render the rule in Ker [v. United States, supra] inapplicable.").
For all of the foregoing reasons, Petitioner has failed to demonstrate that his extradition violated "the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a): Frantz v. Hazey, 533 F.3d at 736-37. Petitioner has also failed to demonstrate that the state courts' rejection of this claim was objectively unreasonable. See 28 U.S.C. section 2254(d). Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
II. Petitioner's Challenge to the Superior Court's Jurisdiction Does Not Merit Federal Habeas Relief.
A. Background
As indicated above, Petitioner's case initially was filed in the adult court. Petitioner alleges that the adult court judge said he would dismiss the case for lack of jurisdiction because Petitioner allegedly committed the offenses at the age of sixteen (Petition, ECF Dkt. No. 1. p. 10). The judge assertedly said that the warrant was an adult warrant, not a juvenile warrant, and that "the law used in the non-jurisdiction warrant prop 21 did not exist in 1999 when alleged offense [sic] occurred" (id., p. 11). Detective Hahn allegedly received a "removal order" and Petitioner, then age 32, assertedly was taken to the juvenile court "beyond the statutory age limit," assertedly in violation of state law (id., pp. 14-15). Petitioner contends that there never was a juvenile arrest warrant or a "juvenile case," and Petitioner allegedly "was not made aware of any of the charges" (id., pp. 14-15).
"Historically, California required a judicial determination of unfitness for juvenile court before a minor could be prosecuted in adult court." People v. Cervantes, 9 Cal.App. 5th 569. 595-97. 215 Cal.Rptr.3d 174 (2017) (citations omitted), disapproved on other grounds, People v. Superior Court (Lara), 4 Cal. 5th 299. 228 Cal.Rptr.3d 394. 410 P.3d 22 (2018). On March 7, 2016, the electorate approved Proposition 21, which "revised the juvenile court law to broaden the circumstances in which minors 14 years of age and older can be prosecuted in the criminal division of the superior court, rather than in juvenile court." Manduley v. Superior Court, 27 Cal.4th at 549-50. After the adoption of Proposition 21, and until the adoption of Proposition 57 on November 8, 2016, "the district attorney was authorized, as a matter of executive discretion, to file a criminal action against a juvenile in certain defined circumstances, rather than filing the case in juvenile court, a practice known as 'direct filing' or 'discretionary direct filing.'" Id. (citations omitted). In Petitioner's case, the juvenile court evidently ruled that Proposition 21 did not apply.
Petitioner reportedly was taken to adult court on April 3, 2015, then back to juvenile court on April 8, 2015 (id.). According to Petitioner, the courts were exercising dual jurisdiction in violation of Petitioner's rights (id., pp. 15-16). The juvenile court assertedly continued the fitness hearing to May 29, 2015, and thereafter to June 23, 2015, continuances which allegedly violated state law (id., pp. 15-16). The juvenile case allegedly was filed after statutory deadlines had been violated, and only then did the adult court assertedly dismiss the proceedings in that case on August 15, 2015 (id., p. 16) .
Although the Petition is somewhat confused, it appears that Petitioner challenges both the jurisdiction of the adult court in which the case allegedly was filed initially and the jurisdiction of the juvenile court (see Petition, ECF Dkt. No. 1. pp. 10-13 (adult court), pp. 14-16 (juvenile court). Petitioner alleges that the prosecution purportedly "used Prop 21 direct filing on the false arrest warrant which amounted to a violation of ex post facto law" because Proposition 21 did not exist in 1999 when Petitioner was 16 years old (id., p. 17) . Petitioner argues that the juvenile court had no jurisdiction because Petitioner assertedly was "27 years old beyond the statutory age for a juvenile commitment" (id., p. 19; see also Traverse, p. 10-12).
Petitioner's case again was transferred to the juvenile court in 2017 (C.T. B-2 - B-4, C-1; 803-04), following the voters' approval of Proposition 57 in November of 2016. See People v. Superior Court (Lara), 4 Cal. 5th 299. 304. 228 Cal.Rptr.3d 3 94. 410 P.3d 22 (2018). As mentioned above, prior to Proposition 57, and under Proposition 21, prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in adult court. Id. at 305; see Cal. Welf. & Inst. Code § 707(a). Proposition 57 generally prohibited prosecutors from charging juveniles with crimes directly in adult court and required that prosecutors commence the actions in juvenile court. People v. Superior Court (Lara), 4 Cal. 5th at 305. It appears that, following a hearing in 2 017, the juvenile court deemed Petitioner "not amenable to the juvenile process once again" and transferred the case (once again) back to the adult court (C.T. C-l - C-2, 805). Although it is unclear whether Petitioner's jurisdictional challenge extends to these 2 017 proceedings, the Court assumes arguendo that it does.
B. Analysis
Petitioner's argument that the state court purportedly lacked jurisdiction over Petitioner does not present any cognizable claim for federal habeas relief. Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal habeas relief is unavailable for mere violations of state law. See Estelle v. McGuire, 502 U.S. 62. 67-68 (1991) ("it is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions"); see also Wilson v. Corcoran, 562 U.S. 1. 5 (2010) (per curiam) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis).
Thus, "[i]t is widely accepted that a claim alleging that a trial court lacked jurisdiction due to purported violations of state law is not cognizable on federal habeas review." Ramirez v. Koenig, 2020 WL 6435393. at *5 (CD. Cal. Sept. 18, 2020), adopted, 2020 WL 6395475 (CD. Cal. Nov. 2, 2020) (citations omitted); see Gould v. Koenig, 2021 WL 2786553. at *6 (CD. Cal. May 3, 2021), adopted, 2021 WL 2413037 (CD. Cal. June 11, 2021); see also Hernandez v. Ylst, 930 F.2d 714. 719 (9th Cir. 1991) ("[w]e are not persuaded that a constitutional violation necessarily occurs when the convicting state court acts without jurisdiction purely as a matter of state law"; declining to decide the issue in that case). "Jurisdiction is no exception to the general rule that federal courts will not engage in collateral review of state court decisions based on state law." Poe v. Caspari, 39 F.3d 204. 207 (8th Cir. 1994), cert, denied, 514 U.S. 1024 (1995); see also Medina v. Williams, 770 Fed.Appx. 926. 927 (10th Cir. 2019) ("as numerous courts have held, jurisdiction is no exception to the general rule that federal courts will not engage in collateral review of state court decisions based on state law") (citations, quotations and brackets omitted); Wright v. Angelone, 151 F.3d 151. 157-59 (4th Cir. 1998) (petitioner's claim that state trial court lacked subject matter jurisdiction "not cognizable on federal habeas review" because it "rest[ed] solely upon an interpretation of Virginia's case law and statutes"). Accordingly, Petitioner's challenge to the state courts' jurisdiction does not entitle Petitioner to federal habeas relief. See 28 U.S.C. section 2254(a): Franz v. Hazey, 533 F.3d at 736-37.
III. Petitioner's Claim of Destruction of Evidence Does Not Merit Federal Habeas Relief.
Petitioner contends that the State violated due process by assertedly destroying the gun, casings and a shirt found at the scene without analyzing these items for fingerprints or gunshot residue and without conducting any ballistics tests (Petition, ECF Dkt. No. 1. pp. 19-26. 43-44). Petitioner attaches to the Petition an alleged page from an investigation report containing an entry dated October 12, 2012, which states that Detective Hahn had contacted "Property Division" and had learned that various items listed on the property report had been destroyed (id., pp. 80, 82, 84).
At the preliminary hearing, Detective Winter testified that, based on the initial conclusion in 1999 that Renzo was the killer, Winter had not felt it necessary to preserve the bullets in the gun or the empty shells for fingerprints (C.T. 735-36). Winter testified that, in 1999, she had believed that Renzo was the killer and, of course, she then knew that Renzo was already dead (C.T. 727-28). At trial, Detective Fathauer testified that, when the case was initially closed, he did not request a hold on any of the property recovered, saying that "[it] did not seem to be of evidential value, in my opinion, at that time" (R.T. 3634).
To the extent Petitioner contends that no ballistic testing was conducted before the gun was destroyed (see Petition, ECF Dkt. No. 1. p. 51), Petitioner is mistaken. A criminalist testified that ballistics testing showed that a bullet recovered from Rodolfo's body was fired from the gun, but that results were "inconclusive" with respect to the bullets taken from the bodies of Veronica, Victor and Renzo (R.T. 3741-48). In the Traverse, Petitioner acknowledges this testimony (Traverse, pp. 12-13).
Petitioner contends that, due to the destruction of the gun, Petitioner was unable to present evidence to counter the prosecution's argument that Petitioner had fired and then wiped the gun (Traverse, pp. 12, 14). Petitioner also alleges that the police destroyed Renzo's jacket, including the sleeve bearing bloodstains, without testing the bloodstains to determine whether the blood was Renzo's or that of some other person (Petition, ECF Dkt. No. 1. p. 24).
Petitioner raised a "destruction of evidence" claim in his California Supreme Court habeas petition (Respondent's Lodgment 11, ECF Dkt. No. 14-36. pp. 16-19). Because the California Supreme Court rejected this claim summarily (Respondent's Lodgment 12), this federal Court "must determine what arguments or theories . . . could have supported the state court's decision; and then it 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 this Court." Harrington v. Richter, 562 U.S. at 102.
The government's failure to preserve evidence can violate a defendant's due process rights if the unavailable evidence "possess[ed] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479. 489 (1984). However, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51. 58 (1988); Sanders v. Cullen, 873 F.3d 778. 811 (9th Cir. 2017), cert, denied, 139 S.Ct. 798 (2019) . "The presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed." Sanders v. Cullen, 873 F.3d at 811 (citation and quotations omitted). Negligence does not constitute the requisite bad faith. See United States v. Sivilla, 714 F.3d 1168. 1172 (9th Cir. 2013).
Here, Petitioner has failed to show that the allegedly exculpatory value of the destroyed evidence "was apparent before the evidence was destroyed," and Petitioner has failed to show that the police destroyed the evidence in "bad faith." Petitioner does not allege when the purported destruction of the items occurred. The record suggests that the alleged destruction occurred prior to the time the case was reopened in 2012. Regardless, Petitioner has not shown, and nothing in the record suggests, that it was apparent at the time of the alleged destruction that the items had any allegedly exculpatory value, or that the police or prosecutors were aware of any allegedly exculpatory value. Petitioner acknowledges that he "was not a suspect" at the time the police retrieved these items from the crime scene, and acknowledges that Ashley did not come forward with incriminating information until thirteen years after the murders (Petition, ECF Dkt. No. 1. pp. 19. 21). In these circumstances, any contention that law enforcement personnel destroyed these items prior to the time the case was reopened cannot demonstrate that the destruction was animated by bad faith. Petitioner's conclusory and speculative allegations are insufficient. See Jones v. Gomez, 66 F.3d 199. 204-205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (conclusory allegations do not warrant habeas relief); McCarty v. Kernan, 2021 WL 3630378. at *18 (E.D. Cal. Aug. 17, 2021), adopted, 2021 WL 4776667 (E.D. Cal. Oct. 13, 2021) ("Habeas relief is not warranted where the claim is based on mere speculation.").
Therefore, the California Supreme Court's rejection of Petitioner's claim of destruction of evidence was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d): Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this claim.
IV. Petitioner's Claims of Alleged Ineffective Assistance of Counsel Do Not Warrant Federal Habeas Relief.
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668. 694. 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796. 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567. 610 (9th Cir. 2004), cert, denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. ..." Matylinsky v. Budge, 577 F.3d 1083. 1091 (9th Cir. 2009), cert, denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborouqh v. Gentry, 540 U.S. 1. 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). "Defense lawyers have limited time and resources, and so must choose from among countless strategic options." Dunn v. Reeves, 141 S.Ct. 2405. 2410 (2021) (citation and quotations omitted). "Such decisions are particularly difficult because certain tactics carry the risk of harming the defense by undermining credibility with the jury or distracting from more important issues." Id. (citation, quotations and brackets omitted).
Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted); see also Morris v. California, 966 F.2d 448. 456-57 (9th Cir.), cert, denied, 506 U.S. 831 (1992) (if the reviewing court can conceive of a reasonable explanation for counsel's challenged action or inaction, the court need not determine the actual explanation before denying relief) .
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Harrington v. Richter, 562 U.S. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "'reasonably likely'" that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id. at 112.
"When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is 'doubly deferential,' [citation], because counsel is 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Woods v. Etherton, 578 U.S. 113. 117 (2016) (citations and internal quotations omitted). "In such circumstances, federal courts are to afford 'both the state court and the defense attorney the benefit of the doubt.'" Id. (citation omitted). "[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Sexton v. Beaudreaux, 138 S.Ct. 2555. 2560 (2018) (citation and internal quotations omitted).
Petitioner raised his claims of alleged ineffective assistance of counsel in his California Supreme Court habeas petition (Respondent's Lodgment 11, ECF Dkt. No. 14-36. pp. 18. 19-28). Because the California Supreme Court rejected these claims summarily (Respondent's Lodgment 12), this Court "must determine what arguments or theories . . . could have supported the state court's decision; and then it 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 this Court." Harrington v. Richter, 562 U.S. at 102.
A. Failure to Consult and Call a "Time-of-Death" Expert
1. Background
The prosecution's theory was that Petitioner committed the crimes on the afternoon and evening of April 26, 1999 (see, e.g., R.T. 920, 923). As described above, the prosecution introduced evidence, notably Ashley's testimony, in support of this theory. The defense theory was that Renzo committed the murders on the morning of April 27, 1999, while Petitioner and Ashley assertedly were absent from the apartment, that Renzo allegedly then took his own life, and that Petitioner and Ashley supposedly discovered the bodies when they returned to the apartment shortly before 9 a.m. (see, e.g., R.T. 955-59, 978, 5823-29, 5837, 5856-57, 5859). Petitioner faults his trial counsel for failing to consult and call a "time of death expert to contradict [the] prosecution's theory that the murders occurred on 4-26-99 and not on 4-27-99" (Petition, ECF Dkt. No. 1. p. 26).
The prosecution's expert trial testimony did not fix the time of death of the victims with any certainty. As discussed below, although there was testimony concerning rigor mortis and livor mortis in the victims, none of the expert witnesses who were asked to fix a time of death could do so. In part, this inability resulted from the fact that no one recorded the liver temperatures of the victims or the ambient temperature in the apartment (R.T. 3698). The expert witnesses deemed such temperature information vital to making a time-of-death determination.
Dr. Wang, a deputy medical examiner, performed the autopsy on Victor's body at approximately 10:45 a.m. on April 28, 1999 (R.T. 1584). Dr. Wang testified concerning two types of postmortem changes in a body: rigor mortis and liver mortis (R.T. 1597). Liver mortis is the accumulation of blood in the body after death, for example, the accumulation of blood in the back if a person died on his or her back (R.T. 1597). Dr. Wang explained that "blanching" means a body's turning white under pressure, which signifies that liver mortis is not fixed, and that the individual has "die[d] not too long ago" (R.T. 1599). Dr. Wang said that liver mortis typically becomes fixed after eight to twelve hours (R.T. 1599). However, room temperature could accelerate blanchability (R.T. 1600). Dr. Wang said that blanching on Victor's back indicated that the liver mortis was not fixed, but the front of body showed fixed liver mortis, indicating that he died face down and the body thereafter was moved (R.T. 1599, 1604-05).
Dr. Wang could not determine the time of death because he had insufficient information with which to do so (R.T. 1592-93, 1605-06). Dr. Wang said he could not estimate the time of death without knowing the liver temperature (i.e., body temperature) (R.T. 1592-93) . Dr. Wang also said the information that Victor had a small amount of food in his stomach did not permit an estimate of when Victor had eaten last, because either Victor might not have eaten much or some of the food might have passed from the stomach (R.T. 1594-95) .
Dr. Steven Sholtz, a deputy medical examiner who performed the autopsy on Veronica on April 28, 1999, testified that he also made no time-of-death determination (R.T. 2128-29, 2137). He was able to make findings consistent with her death having occurred within approximately a day, i.e. twenty-four hours, due to visceral organ softening, although he said this time period was a "range" (R.T. 2137-38, 2211).
Michael Joseph, at the time a coroner's investigator, arrived at the apartment at approximately 2:00 p.m. on April 27, 1999 (R.T. 3063-65). Joseph checked the bodies for rigor mortis and for liver mortis (R.T. 3065-66). He did not take liver temperatures of any of the victims, stating that he did not know why he failed to do so, but that he was not required to do so (R.T. 3080, 3101). He testified that liver temperature "maybe" could provide a "good guess" as to time of death, but also that other information factored into the calculation, including ambient room temperature, attire of the deceased, the presence of heating or air conditioning, whether the bodies were covered, whether the floor was carpeted or made of marble, and whether windows were open (R.T. 3080-81, 3101). Joseph did not document the temperature in the apartment (R.T. 3101) .
Joseph said that the bodies of Rodolfo, Veronica and Renzo had a moderate level of rigor mortis, and the liver mortis examination showed that their skin blanched to light pressure (R.T. 3071-73, 3078-79, 3081-83, 3085-3088, 3096-98, 3100-01). Blanching to light pressure was "on the earlier side of the [time] spectrum" (R.T. 3100). Joseph refused to identify a time of death based on rigor mortis, saying that he was "not really supposed to determine in terms of hours and stuff like that, only because there are so many factors that come into play" (R.T. 3072). With respect to liver mortis, Joseph stated that he "was never taught to take anything from [a liver mortis examination] other than to provide the information, and they would decide how long that person had been dead" (R.T. 3073).
Dr. Chinwah testified that he conducted an autopsy on Renzo's body on April 28, 1999 at 11:00 a.m. and an autopsy on Rodolfo's body at 12:00 noon that day (R.T. 3111, 3129-30). Dr. Chinwah relied on the investigator's report in making conclusions regarding the autopsies (R.T. 3148). Dr. Chinwah said that the investigator had noted the presence of moderate rigor mortis in Rodolfo's body (R.T. 3148). Asked whether this information told him anything concerning how long Rodolfo had been dead, Dr. Chinwah said "no, not much" (R.T. 3148). Dr. Chinwah said that rigor mortis was one of the measurements used to estimate the time since death, but that he would need to know the temperature and lividity (R.T. 3149). Dr. Chinwah agreed that he had information concerning lividity in Rodolfo's body which was consistent with Rodolfo's position, but added: "And that doesn't tell me, you know, much" (R..T. 3150). Dr. Chinwah said that, although information that Rodolfo's skin blanched under slight pressure was helpful, Dr. Chinwah could not base the time of death on that information (id., pp. 3150-51). However, he did say that blanching occurred "in the early part of the lividity" (R.T. 3151). He agreed that lividity generally becomes fixed within eight to twelve hours, but reiterated that he could not base a time of death opinion "just on that" (R.T. 3151-52). Dr. Chinwah said he also would need to know the liver temperature of the body and the temperature in the room (R.T. 3152-53) .
2. Analysis
An attorney's decision not to call a witness generally constitutes a matter of trial tactics which this Court should not second-guess. United States v. Harden, 846 F.2d 1229. 1232 (9th Cir.), cert, denied, 488 U.S. 910 (1988). "[W]hile the Constitution requires that a criminal defendant receive effective assistance of counsel, the presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense." Bonin v. Calderon, 59 F.3d 815. 834 (9th Cir. 1995), cert, denied, 516 U.S. 1051 (1996). "The choice of what type of expert to use is one of trial strategy and deserves a 'heavy measure of deference.'" Leavitt v. Arave, 682 F.3d 1138. 1140-41 (9th Cir.) (per curiam), cert, denied, 567 U.S. 914 (2012) (citation and quotations omitted) (rejecting claim of ineffective assistance in failing to call expert, where petitioner's attorneys "apparently decided not to call Leavitt's expert to the stand because most of his testimony would have corroborated the government's").
Here, Petitioner's counsel reasonably could have decided not to consult or call a time-of-death expert. Nothing in the record indicates that any such expert would have had more, or better, information than the information available to the witnesses who did testify, and none of those witnesses could determine a time of death for any of the victims without additional (and unavailable) information such as liver temperature and ambient room temperature. Petitioner has not shown that any defense expert would have been able to opine regarding a time of death from the information available, much less what the opined time of death would have been.
Furthermore, counsel reasonably could have determined that calling a defense time-of-death expert to attempt to pinpoint the time of death could have backfired by yielding evidence unfavorable to the defense. See Harrington v. Richter, 562 U.S. at 108 ("An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense."). Instead, counsel reasonably decided to use the trial testimony that lividity normally became fixed within eight to twelve hours after death to argue that that time frame was consistent with the defense theory that Renzo had committed the murders and killed himself on the morning of April 27, 1999 (see R.T. 5824-26). The fact that counsel's argument proved unsuccessful does not show ineffective assistance. See Strickland, 466 U.S. at 689 (cautioning against "examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable"); Siripongs v. Calderon, 133 F.3d 732. 736 (9th Cir.), cert, denied, 525 U.S. 839 (1998) ("the relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable") (citation omitted).
Moreover, Petitioner's speculation that the testimony of a time-of -death expert at trial would have aided Petitioner's defense is insufficient to establish Strickland prejudice. See Grisby v. Blodgett, 130 F.3d 365. 373 (9th Cir. 1997) ("Speculation about what an expert would have said is not enough to establish [Strickland] prejudice."); see also Wildman v. Johnson, 261 F.3d 832. 839 (9th Cir. 2001) (rejecting claim of ineffective assistance where petitioner "offered no evidence that an arson expert would have testified on his behalf at trial," but only "speculate[d] that such an expert could be found"); Grant v. Byrne, 2021 WL 3605056. at *5 (D. Nev. Aug. 12, 2021) ("Grant refers in his pleadings to counsel failing to have an expert establish . . . time of death (citation) but has presented no evidence showing that an expert would have been able to make such a determination in a manner that would have benefitted his defense")
B. Failure to Introduce a Report Summarizing Ashley's Statements in Her Interview With Police the Day After the Murders
At trial, Detective Fathauer testified concerning Ashley's interview with police the day after the murders (R.T. 3385, 3392-3400, 3440-47, 3449-51). The interview was not recorded (R.T. 3385, 3392-94). Fathauer said that the interview may have lasted only ten to fifteen minutes and that Ashley was "traumatized" and "very upset" (R.T. 3394, 3449-50). According to Fathauer's testimony, Ashley stated that: (1) Ashley's mother woke Ashley up at 5:00 a.m.; (2) Ashley went back to sleep and her mother woke her again at 6:00 a.m.; (3) Petitioner and Ashley left for school in the father's car at approximately 6:30 a.m., or when the sun was coming up; (4) Petitioner drove around looking for his girlfriend, picked up his friends Escobar and Estrada, and then dropped them off; (5) Petitioner and Ashley returned home because Petitioner had forgotten his backpack and Ashley had forgotten her sweater; (6) when Petitioner opened the door to the apartment, Ashley smelled gas; (7) Ashley saw her father in the hallway; (8) Ashley saw Victor bleeding from the head and saw Renzo lying on the ground with the gun in his hand; (9) Petitioner stopped Ashley from entering the bedroom where her mother was; and (10) Petitioner called 911 (R.T. 3397-3400, 3442-46, 3450). Attached to the Petition is a document appearing to be a police report summarizing the interview (Petition, ECF Dkt. No. 1. p. 94). The summary is consistent with the above-described statements (id.).
At trial, Ashley said that a female detective conducted the 1999 interview (R.T. 1525, 1400-01). Ashley did not recall being interviewed by Detective Fathauer, although she said some men were present (R.T. 1525-26). Ashley said she told detectives what Petitioner had told her to say, i.e. that she and Petitioner supposedly had forgotten something and returned home (R.T. 1399-1401). Ashley said she lied in the interview because she was afraid of Petitioner (R.T. 1401, 1524, 1526, 1531-32, 1534). Ashley said that everything in her 1999 statement was a lie (R.T. 1865). On cross-examination, Petitioner's counsel elicited Ashley's testimony that she told Detective Hahn in 2012 that, in her 1999 interview, she would cry every time she was asked a question and "would say nothing" (R.T. 1531, 1533). In closing, Petitioner's counsel argued that Ashley lied at trial when she disavowed her 1999 version of the crimes (R.T. 5840-45) .
During deliberations, the jury asked for the "written report of Det. Winter summarizing first interview of Ashley Alvarado in 4/99" (R.T. 6004-05; C.T. 1268). After conferring with counsel, the court said that counsel had agreed to the following response: "Detective Winter did not directly interview Ashley Alvarado. The police report summarizing Detective Fathauer's interview of Miss Alvarado was not received as an exhibit during the trial, and therefore the report will not be provided to you" (R.T. 6005; C.T. 1268).
Petitioner contends that trial counsel should have sought admission of the report summarizing Ashley's April 27, 1999 interview. However, the contents of the report do not materially differ from Fathauer's testimony describing what Ashley had related during the interview. Petitioner does not allege how admission of the written summary of the contents of the interview (as opposed to Fathauer's testimony concerning the selfsame contents) would have aided his counsel in attempting to cast doubt on the veracity of Ashley's trial version of the murders. Counsel reasonably could have determined that attempting to introduce the written summary of the interview was unnecessary and cumulative. See Babbitt v. Calderon, 151 F.3d 1170. 1174 (9th Cir. 1998), cert, denied, 525 U.S. 1159 (1999) (not unreasonable for counsel to forgo pursuing evidence that was "largely cumulative").
Furthermore, Petitioner has not shown a reasonable probability of a different outcome had counsel sought to introduce the report summarizing Ashley's 1999 statements. See Benson v. Chappell, 958 F.3d 801. 836 (9th Cir. 2020), cert, dism'd, 141 S.Ct. 2779 (2021) (no Strickland prejudice where counsel failed to obtain lab report the contents of which were cumulative to other evidence); see also Boutte v. Biter, 556 Fed.Appx. 623. 625 (9th Cir.), cert, denied, 574 U.S. 982 (2014) (same; police report cumulative to victim's testimony); see generally Matylinsky v. Budge, 577 F.3d 1083. 1097 (9th Cir. 2009), cert, denied, 558 U.S. 1154 (2010) (habeas petitioner "cannot show prejudice for failure to present what is most likely cumulative evidence"). Petitioner's counsel cross-examined Ashley concerning her 1999 statements and argued to the jury that Ashley's 2012 version of the crimes was not credible. A written summary of the 1999 statements would not have added anything material to Petitioner's defense. Accordingly, Petitioner has not shown Strickland prejudice. See Strickland, 466 U.S. at 694.
C. Alleged Ineffective Assistance of Trial and Appellate Counsel for Failing to "Object or Raise a Destruction of Evidence Claim"
Embedded in Petitioner's destruction of evidence claim are allegations that trial and appellate counsel purportedly rendered ineffective assistance by failing to "object or raise a destruction of evidence claim" (Petition, ECF Dkt. No. 1. p. 24).
Here, given the absence of evidence that the police or prosecutors knowingly and in bad faith destroyed any potentially exculpatory evidence (as discussed in section III above), Petitioner has not demonstrated ineffective assistance of trial counsel in failing to object or to raise a destruction of evidence argument. Strickland does not require counsel to make a meritless argument. See Juan H. v. Allen, 408 F.3d 1262. 1273 (9th Cir. 2005), cert, denied, 546 U.S. 1137 (2006) ("trial counsel cannot have been ineffective for failing to raise a meritless objection"); see also Gonzalez v. Knowles, 515 F.3d 1006. 1017 (9th Cir. 2008) (counsel cannot be deemed ineffective for failing to raise a meritless claim); Rupe v. Wood, 93 F.3d 1434. 1445 (9th Cir. 1996), cert, denied, 519 U.S. 1142 (1997) ("the failure to take a futile action can never be deficient performance"); see also Sexton v. Beaudreaux, 138 S.Ct. at 2559 ("A fairminded jurist could conclude that counsel's performance was not deficient because counsel reasonably could have determined that the motion to suppress would have failed.").
Similarly, Petitioner also has failed to demonstrate that appellate counsel was ineffective for failing to raise these meritless claims on appeal. See Moormann v. Ryan, 628 F.3d 1102. 1109 (9th Cir. 2010), cert, denied, 565 U.S. 921 (2011) (under Strickland standard, appellate counsel is not required to raise a meritless issue on appeal); Pollard v. White, 119 F.3d 1430. 1435 (9th Cir. 1997) ("A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court.").
D. Conclusion
For all of the foregoing reasons, the California Supreme Court's rejection of Petitioner's claims of alleged ineffective assistance of counsel was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. S 2254(d): Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on these claims.
V. Petitioner's Claims of Alleged Prosecutorial Misconduct Do Not Merit Federal Habeas Relief.
Prosecutorial misconduct merits habeas relief only where the misconductn,so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, § (1986) (citation and internal quotations omitted); Bonin v. Calderon, 59 F.3d at 843 ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial.").
"In fashioning closing arguments, prosecutors are allowed reasonably wide latitude and are free to argue reasonable inferences from the evidence." United States v. McChristian, 47 F.3d 1499. 1507 (9th Cir. 1995) (citation omitted). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions." Ortiz-Sandoval v. Gomez, 81 F.3d 891. 898 (9th Cir. 1996) (citing Boyde v. California, 494 U.S. 370. 384-85 (1990)); see also Waddington v. Sarausad, 555 U.S. at 195.
Petitioner raised his claims of alleged prosecutorial misconduct in his California Supreme Court habeas petition (Respondent's Lodgment 11, ECF Dkt. No. 14-36. pp. 28-32). Because the California Supreme Court rejected these claims summarily (Respondent's Lodgment 12), this Court "must determine what arguments or theories . . . could have supported the state court's decision; and then it 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 this Court." Harrington v. Richter, 562 U.S. at 102.
A. Alleged Vouching
"The prosecutor's vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence." United States v. Young, 470 U.S. 1. 18 (1985). "Improper vouching typically occurs in two situations: (1) the prosecutor places the prestige of the government behind a witness by expressing his or her personal belief in the veracity of the witness, or (2) the prosecutor indicates that information not presented to the jury supports the witness's testimony." United States v. Brooks, 508 F.3d 1205. 1209 (9th Cir. 2007) (citation and internal quotations omitted).
Petitioner contends the prosecutor improperly vouched for Ashley's credibility by making the following statements in closing argument:
However, as indicated above, it appears from other of Petitioner's allegations that the state court did not apply Proposition 21 to Petitioner.
. . . He [Petitioner] puts a bullet in a five year-old. And then once he's done, Ashley tells you that he takes advantage of her. He pulls her bottoms down. He pulls his pants down and he rubs his penis around her.
And so where is Ashley coming up with this? Do you think she has decided, "hey, you know what? I am just going to tell a story to get him in trouble, and in the story I am going to say his penis is being rubbed on my body and my head?
No.
She is telling you the truth. And I got to say, it took courage. Because she is ten years old; she represses it. She has the memory in her, but doesn't it take courage to expose yourself to this and come and tell the truth?
So you got to decide if -- while her little brother is dead, if he did all those things that he did to her. . . .(R.T. 5789).
. . . [Renzo's] body position consistent with immediate incapacitation. The falling-down soldier.
And it looks staged. Look at that. Look at how that's wrapped. Cleaned. No G.S.R.
Was this staged? Did he stage it? Is Ashley telling the truth? Is Marvin Escobar telling the truth? Yes.(R.T. 5810) .
The Ninth Circuit's decision in United States v. Necoechea, 986 F.2d 1273 (9th Cir. 1993) ("Necoechea") is instructive on the issue presented here. In Necoechea, the defendant claimed that the prosecutor committed improper vouching by making the following comments to the jury:
Why, ladies and gentlemen, if [the witness is] lying, isn't she doing a better job of it? I submit to you, ladies and gentlemen, that she's not lying. I submit to you that she's telling the truth.Id. at 12 79. The Ninth Circuit rejected the defendant's claim, ruling that the prosecutor had neither referred to "extra-record" facts nor had made a personal guarantee of the witness' veracity. Id. "The prosecutor merely argued that [the witness] was telling the truth, an argument the prosecutor had to make in order to convict Necoechea." Id. .
Similarly here, the challenged comments did not refer to any alleged facts outside the record, and nothing in the comments suggested that the prosecutor was expressing a personal guarantee of Ashley's veracity. Rather, the prosecutor simply argued that the evidence supported Ashley's credibility. Such argument is not improper vouching. See United States v. Nash, 115 F.3d 1431. 1439 (9th Cir. 1997), cert, denied, 522 U.S. 1117 (1998) (statement that witnesses lacked any motive to lie not improper vouching); United States v. Molina, 934 F.2d 1440. 1445 (9th Cir. 1991) (proper to argue that jury ought not to believe defendant's version of events); see also United States v. Preston, 845 Fed.Appx. 526. 529 (9th Cir. 2021) (statement "Why do we think he's credible" is permissible because prosecutor was arguing why the jury should find witness credible based on the evidence in the record and inferences to be drawn therefrom; statement "I would submit to you he's a very credible witness" also permissible).
Therefore, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d): Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on his claim of allegedly improper prosecutorial vouching.
B. Alleged References to Facts Purportedly Not In Evidence
Petitioner also asserts that the prosecutor committed misconduct by making remarks in closing, supposedly unsupported by the evidence, regarding: (1) the movement of Veronica's body after the killing; and (2) Petitioner's staging of the crime scene (Petition, ECF Dkt. No. 1. pp. 41-43). For the reasons discussed below, Petitioner is not entitled to federal habeas relief on these claims.
1. Comment Regarding Movement of Veronica's Body
Petitioner challenges the following remarks of the prosecutor in closing argument:
. . . Ashley knew that her mom was shot and killed in the dining room, even though officers found the body in the bedroom.
The gunshot wound to her mother, that corroborates Ashley. It's in the back of the head, as she said. Also, [Petitioner] moved this body at some point.(R.T. 5787). Petitioner contends the prosecutor presented no evidence to support the statement that Petitioner had moved Veronica's body (Petition, ECF Dkt. No. 1. p. 63).
However, it was undisputed that Veronica's body had been moved after she was shot; Petitioner's counsel acknowledged as much in closing argument (R.T. 5827-28) . Further, the prosecutor's challenged comment was a reasonable inference based on the evidence, including evidence that: (1) blood evidence showed that Veronica's body was moved from the dining area to a bedroom; (2) authorities found Veronica's body in the bedroom on a blanket with a pillow under her head; (3) the only people who were in the apartment from the time of the murders until the time Petitioner and Ashley returned and called 911 were Petitioner, Ashley and Escobar; (4) there was no evidence Escobar had moved Veronica's body; in fact, he testified without contradiction that he did not see her body when he was in the apartment; (5) Ashley was a ten-year old girl who was four feet eleven inches tall and weighed 85 pounds; and (6) Petitioner was a sixteen-year old who was five feet five inches tall and 165 pounds (see R.T. 1950, 2161, 2408-10, 2797-98, 3348-54, 3397-98; 3671-73). See United States v. Henderson, 241 F.3d 638. 652 (9th Cir. 2000), cert, denied, 532 U.S. 986 (2001) ("Prosecutors have considerable leeway to strike 'hard blows' based on the evidence and all reasonable inferences from the evidence.") (citations omitted).
Therefore, this Court need not and does not reach the issue of the AEDPA standard of review's applicability to this claim.
The Court quotes some of the challenged comments in context. The specific comments challenged in the Petition are set forth in bold print.
2. Comments Regarding the Staging of the Crime Scene
In closing, the prosecutor argued that Petitioner had staged the murder scene and had planted the gun on Renzo, stating:
Dr. Hayes had to give the defendant the benefit of the doubt and, based on a study, placed the gun, the muzzle, you know, as close as he could. But Dr. Chinwah and him - and Dr. Hayes all said really it should have been six inches away to more [sic]. So at that point Dr. Hayes said, he can't even --he can't even shoot himself.
So when he does give him the benefit of the doubt and places it [the gun] close, he is twisting his wrist, looking down in the most awkward way, to try to shoot himself. Who would kill themselves like that? Why not shoot yourself on the side of the head, the mouth, somewhere, where you can do it? Why are you going to twist it around?
See, and it's all being revealed now, how [Petitioner] planted that gun on Renzo.(R.T. 5765).
But when you consider all the evidence in this case, there's only one reasonable interpretation of the evidence, and that's that [Petitioner] is the killer and he planted
that gun on Renzo.(R.T. 5769).
Physical evidence in this case. It is clear Renzo did not shoot himself. It was staged. The defendant planted that gun.(R.T. 5899).
And he killed Renzo, his rival, and to finish it off, he planted that gun and curled it in his hand to make it look like he had done it.(R.T. 5902) .
Petitioner argues that the evidence did not support the challenged statements (Petition, ECF Dkt. No. 1. pp. 64-65) .
Petitioner's argument lacks merit. The challenged statements were reasonable inferences based on the trial evidence, including evidence that: (1) Ashley told detectives in an interview on October 24, 2012 that she saw Petitioner cleaning the gun after the murders; (2) Ashley testified at trial that she saw Petitioner cleaning the gun after the murders; (3) the gun was found clasped in Renzo's hand, with his index finger on the inside guard resting on the trigger and three fingers clasping the gun; (4) the gun weighed approximately two pounds; (5) the pressure on the trigger required to fire the gun was fourteen pounds uncocked and six pounds cocked; (6) the gunshot residue testing of Renzo's hands was negative; and (7) the biomechanics expert testified that there was: (a) an extremely low likelihood that Renzo could have twisted around so as to shoot himself in a manner resulting in the trajectory of the bullet through his head; (b) an extremely low likelihood that he could have sustained the gunshot wound to the head, fallen to the ground and be found with fingers gripped around the gun and a finger on the trigger; and (c) an extremely low probability that he would have no gunshot residue on his hands if he had shot himself in the head (R.T. 1395, 1848-49, 3124, 3128-29, 3311-12, 3341, 3688-89, 3746-47, 4244-46). Although there may have been some contrary evidence, "the prosecutor was not required to incorporate every potentially contrary piece of evidence in his argument, so long as the argument the prosecutor made could be reasonably inferred from the evidence." Hauseur v. Virga, 2011 WL 3809925. at *34 (CD. Cal. July 22, 2011), adopted as modified on other grounds, 2011 WL 3809923 (CD. Cal. Aug. 26, 2011), aff'd, 590 Fed.Appx. 680 (9th Cir.), cert, denied, 577 U.S. 848 (2015).
3. Conclusion
For the foregoing reasons, the California Supreme Court's rejection of these claims was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d): Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on these claims.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that judgment be entered denying and dismissing the Petition with prejudice.
In closing, Petitioner's counsel argued that Ashley's statements that the bodies were not moved was contradicted by testimony showing that the bodies of Victor and Veronica were moved (R.T. 5827-28).
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (2 0) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.