NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

JAIME HOYOS,

Petitioner-Appellant,

 v.

RONALD DAVIS, Warden, California

State Prison at San Quentin,

Respondent-Appellee.

No. 17-99009

D.C. No. 

3:09-cv-00388-L-NLS

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding

Argued and Submitted March 23, 2022

Pasadena, California

Before: IKUTA, CHRISTEN, and BUMATAY, Circuit Judges.

Jaime Hoyos appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition in which he sought relief from his state-court convictions

and death sentence. Hoyos raises several certified claims on appeal. We address

FILED

SEP 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
all but his Batson claim here.

1

 We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253, and we affirm the district court’s denial of Hoyos’s habeas petition. 

We review de novo a district court’s denial of a federal habeas petition. 

Kipp v. Davis, 971 F.3d 939, 948 (9th Cir. 2020). Pursuant to the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), we defer to the last state-court

decision on the merits of any claim unless that decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or was “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” Staten v. Davis, 962 F.3d 487, 494 (9th Cir. 2020)

(quoting 28 U.S.C. § 2254(d)). Here, we review the California Supreme Court’s

ruling on direct appeal. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).2 

1. Hoyos raises multiple claims regarding jailhouse informant George

Jimenez, who made statements to law enforcement regarding co-defendant Jorge

Emilio Alvarado’s participation in the Magoon murders. First, Hoyos argues that

1

 See Batson v. Kentucky, 476 U.S. 79 (1986). We address Hoyos’s Batson

claim in a concurrently filed published opinion. Hoyos also included three

uncertified claims in his opening brief as an application to expand the Certificate of

Appealability (COA). See Fed. R. App. P. 22(b)(2); Ninth Cir. R. 22-1(e). We

decline to grant a COA as to those three claims. 

2

 Because the parties are familiar with the facts, we recite only those

necessary to decide the appeal.

2
his constitutional rights to due process, to testify, and to receive a fair trial were

violated when the trial court denied his motion to sever his trial from Alvarado’s

trial, and that the California Supreme Court’s rejection of this claim was an

unreasonable application of United States Supreme Court precedent. Jimenez’s

statements did not directly implicate Hoyos, but Hoyos claims the statements

impacted his right to testify because he and his co-defendant made a joint decision

whether to testify: “It was either both or none.” The California Supreme Court

concluded Hoyos’s arguments lacked merit because the trial court ruled the

Jimenez statements were only admissible if Alvarado testified and nothing in the

statements precluded Hoyos from testifying. See People v. Hoyos, 162 P.3d 528,

547 (Cal. 2007). 

“[T]here is no clearly established federal law requiring severance of criminal

trials in state court,” Runningeagle v. Ryan, 686 F.3d 758, 774 (9th Cir. 2012), and

Hoyos does not identify any clearly established Supreme Court precedent

supporting his position that the California Supreme Court violated his

constitutional rights. Even assuming that the California Supreme Court erred,

Hoyos has not demonstrated that any error had a “substantial and injurious effect

or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993). 

Therefore, we affirm the district court’s denial of this claim. 

3
Second, Hoyos argues the prosecution’s delayed disclosure of the Weil

Report deprived him of his due process rights in violation of Brady v. Maryland,

373 U.S. 83 (1963). Hoyos contends the California Supreme Court’s decision

refuting this claim was an unreasonable determination of the facts in light of an

“undisputed record.” According to Hoyos, the record is unequivocal that neither

Hoyos nor Alvarado testified “because of Alvarado’s direct vulnerability to

impeachment by the Jimenez statements,” and he argues that both defendants

would have testified if the Weil Report had been timely disclosed because it was

significant impeachment evidence. The district court concluded the California

Supreme Court’s determination was not unreasonable because it was not certain

that Hoyos actually would have testified if he had received the Weil Report and

because Hoyos failed to show how his testimony would have changed the outcome

at trial. 

To succeed on his Brady claim, Hoyos was required to establish that: (1) the

withheld evidence was favorable to him “because it is exculpatory, or because it is

impeaching”; (2) the evidence was “suppressed by the State, either willfully or

inadvertently”; and (3) he was prejudiced as a result. Strickler v. Greene, 527 U.S.

263, 281–82 (1999). A Brady claim is not meritorious “unless the nondisclosure

was so serious that there is a reasonable probability that the suppressed evidence

4
would have produced a different verdict.” Id. at 281; see also United States v.

Bagley, 473 U.S. 667, 682 (1985). Hoyos’s argument focuses on the prejudice

prong, but he does not explain how his testimony would have changed the outcome

at trial, and it was not unreasonable for the California Supreme Court to decide that

the impact of the Weil Report on Hoyos’s decision to testify was “highly

speculative,” Hoyos, 162 P.3d at 565, given both the nature of the report and

Hoyos’s trial counsel’s statements regarding what Hoyos’s testimony would have

been. Whether Hoyos would have testified is even more doubtful given his

repeated insistence that he would not have testified unless his co-defendant

testified, and it is speculative whether earlier disclosure of the Weil Report would

have caused Alvarado to testify. Accordingly, we affirm the district court’s

decision that the California Supreme Court’s decision was not based on an

unreasonable determination of the facts.3 

Third, Hoyos contends he was denied his right to effective assistance of

counsel by the delayed disclosure of the Weil Report because his trial counsel were

“deficient in their efforts to affirmatively investigate and impeach informant

Jimenez.” The district court concluded that Hoyos likely failed to exhaust this

3

 Hoyos also argues the alleged Brady violation resulted in a violation of his

right to testify, but for the same reasons his right-to-testify claim related to his

severance claim fails, it fails under the Brady theory as well. 

5
claim because he did not raise it in the state courts.4 The district court said it

considered the claim de novo pursuant to 28 U.S.C. § 2254(b)(2), yet it ultimately

concluded that the California Supreme Court’s rejection of the claim “was neither

contrary to, nor an unreasonable application of, Strickland.” On appeal, Hoyos

does not address how this claim was properly exhausted. 

We exercise our discretion to reach the merits of his unexhausted claim. See

Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (acknowledging that

pursuant to § 2254(b)(2) a court may deny a habeas petition by reaching the merits

of unexhausted claims, but explaining it is not required to do so); Runningeagle,

686 F.3d at 777 n.10 (same); cf. Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir.

2006) (en banc) (“We may affirm on any ground supported by the record, even if it

differs from the rationale used by the district court.”). To establish that his

counsel’s conduct rose to the level of a constitutional deprivation, Hoyos was

required to show that: (1) counsel’s performance was deficient; and (2) the

4

 On direct appeal, Hoyos argued the late disclosure of the Weil Report

“was prejudicial because it violated his right to receive meaningful guidance” from

counsel about his decisions to testify. Hoyos, 162 P.3d at 565. The California

Supreme Court explained that Hoyos did “not argue that his trial counsel [were]

deficient because he failed to uncover the Jimenez impeachment evidence,” so,

unlike the claim he raises here, in the state court there was “no issue of trial

counsel’s not becoming aware of relevant evidence through counsel’s failure to

conduct a reasonable investigation.” Id.

6
deficient performance prejudiced his defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984). As to the first prong, Hoyos does not explain how his

counsel could have been aware of the possibility of undisclosed evidence, and, in

doing so, he conflates his ineffective assistance of counsel claim with his Brady

claim. As for prejudice, Hoyos shows neither that disclosure of the Weil Report

would have caused him to testify nor how his testimony would have changed the

outcome at trial. Instead, he asserts in a conclusory manner that had he “testified

that he did not kill the Magoons, and if the defense had confronted the blood

splatter evidence and other forensic evidence, there is a strong probability the

outcome of the trial would have been very different.” At oral argument before our

court, Hoyos’s counsel admitted that defense counsel used experts to crossexamine the state’s blood splatter expert at trial. We are not persuaded that Hoyos

has established prejudice. Cf. Gentry v. Sinclair, 705 F.3d 884, 906 (9th Cir. 2013)

(“Because we have held that none of the impeachment evidence argued in support

of [the defendant’s] Brady claim is material, that analysis is dispositive of the

prejudice prong of an ineffective assistance claim based on the same evidence.”). 

Even on de novo review, we affirm the district court’s denial of this claim because

it fails under both prongs of Strickland. 

7
2. Next, Hoyos raises several claims regarding evidence of third-party

culpability related to the Luna brothers. He argues: (1) his counsel’s failure to

adequately investigate the Luna brothers amounted to ineffective assistance of

counsel, (2) the prosecution’s failure to provide information regarding the Luna

brothers amounted to a Brady violation, and (3) these failures combined to infringe

on his right to testify.

We agree with the district court that Hoyos’s ineffective assistance of

counsel claim regarding the Luna brothers fails.5

 First, Hoyos’s trial counsel

attempted to gather further information about David Luna but was unable to do so. 

Second, even assuming Hoyos could establish that counsel were deficient, we

agree with the district court that Hoyos has not shown prejudice. “Evidence of

third-party culpability is not admissible ‘if it simply affords a possible ground of

suspicion against [another] person; rather, it must be coupled with substantial

evidence tending to directly connect that person with the actual commission of the

offense.’” People of Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir.

1993) (quoting Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983)). At most,

5

 Hoyos raised the ineffective assistance of counsel claim in his second state

habeas petition, and the California Supreme Court denied it both on the merits and

as procedurally barred. The district court reviewed the merits of the ineffective

assistance of counsel claim de novo.

8
Hoyos shows that third parties may have had motive and opportunity to kill the

Magoons, but he does not provide any substantial evidence connecting a third party

to the murders. 

As for the Brady claim concerning disclosure of information regarding the

Luna brothers, the district court concluded Hoyos “fail[ed] to demonstrate that

David Luna’s identifying information was itself either exculpatory or material.”

But even assuming the prosecutor’s failure to disclose satisfied Brady’s

suppression prong, Hoyos’s claim fails because he does not demonstrate prejudice

for the same reasons he fails to demonstrate prejudice on his ineffective assistance

of counsel claim.

6

Hoyos’s related right-to-testify claim fails because it is premised on his

Brady and ineffective assistance of counsel claims. Accordingly, we affirm the

district court’s denial of Hoyos’s habeas petition based on his claims related to the

Luna brothers.

6

 Hoyos also claims his state appellate counsel were ineffective for failing to

raise a third-party culpability claim in Hoyos’s first state habeas petition. The

district court concluded “such an argument fails to find support in clearly

established law.” Post-conviction “counsel acts as the petitioner’s agent . . . and

the petitioner must bear the risk of attorney error because there is no constitutional

right to counsel in state [post-conviction] proceedings.” Detrich v. Ryan, 740 F.3d

1237, 1243–44 (9th Cir. 2013) (en banc) (internal quotation marks omitted)

(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)), cert. denied, 572 U.S.

1146 (2014). We affirm the district court’s denial of this claim. 

9
3. Hoyos also contends his trial counsel were ineffective because they failed

to investigate and present other substantial exculpatory and impeaching evidence

during the guilt phase. In particular, Hoyos argues trial counsel’s defense was: (1)

inconsistent with the version of events that Hoyos offered; and (2) “predicated

entirely on the putative existence of a sudden quarrel and shootout with Dan

Magoon, without any comparable or complementary defense as to the murder of

Mary Magoon.” Hoyos also challenges the efficacy of trial counsel’s blood

splatter investigation. The district court denied this ineffective assistance of

counsel claim, ruling that the California Supreme Court “could have reasonably

rejected [the claim] based on [Hoyos’s] failure to satisfy Strickland’s performance

prong” and based on Hoyos’s “failure to demonstrate prejudice.”

First, we agree with the district court that Hoyos has failed to overcome the

“strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance,” as is necessary to demonstrate that counsel’s

performance was constitutionally deficient. Strickland, 466 U.S. at 689. As the

district court observed, counsel’s decision to “assert self-defense or manslaughter

for the murder of Daniel Magoon and second degree murder for Mary Magoon”

was “clearly tactical” and “within the scope of ‘reasonable professional

10
assistance.’”

7

 As the district court noted, while “the evidence of Daniel Magoon’s

propensity for violence was substantial, . . . the evidence concerning Mary was

largely based on Hoyos’s speculative statement that she might have been going for

a gun that evening.” Trial counsel attempted to introduce evidence of Mary

Magoon’s familiarity with weapons, without success. Hoyos, 162 P.3d at 558. 

And any evidence that Mary Magoon had neglected her children, beyond the

evidence of cocaine in her system that was presented to the jury, was too

speculative and conclusory to support a propensity argument against her. 

Hoyos also argues that trial counsel erred in failing to elicit, from the

Magoons’ seven-year-old son, that he knew Hoyos as a friend of his father and that

Hoyos had not gone to his house on the night of the shootings. As the district court

noted, the record shows that the Magoons’ son stated during interviews, and

testified at trial, that he was asleep during the murders. We affirm the district

7

 Hoyos contends that trial counsel should have presented evidence that

Mary was involved in her husband’s drug business, was familiar with the use of

firearms, and was a chronic drug user. Counsel did attempt to introduce some such

evidence but decided to present evidence focused on Daniel’s propensity for

violence, and we agree with the district court that this was a reasonable strategic

decision. Further, the district court assumed, without deciding, that the trial court’s

reservations about the introduction of evidence concerning Mary’s propensity for

violence “amounted to an express ruling excluding that evidence,” but that Hoyos

failed to demonstrate an abuse of discretion. We agree with the district court, and

we decline to reach Hoyos’s uncertified claim challenging the exclusion of certain

evidence concerning Mary.

11
court’s judgment that the failure to question the Magoons’ son about this

inconsistency, given his age and traumatic experiences, “might be considered

sound trial strategy.”

As for the blood splatter evidence, Hoyos alleges trial counsel were deficient

because they did not elicit evidence like that of retired law enforcement officer

George Crawford. But as the district court noted, Crawford’s declaration was not

part of the record in Hoyos’s state court proceedings, so we cannot consider it. See

Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011) (precluding a federal habeas

court’s consideration of new evidence when reviewing a state court’s decision

pursuant to 28 U.S.C. § 2254(d)). Moreover, the trial record shows that Hoyos’s

counsel rebutted the prosecution’s blood splatter and DNA experts through

“extensive” cross-examination and the use of their own experts, namely experts in

criminalistics and DNA analysis. Without sufficient evidentiary support

demonstrating how counsel’s response to the State’s blood splatter evidence was

deficient and not strategic, Hoyos’s claim is no more than speculative. See

Runningeagle, 825 F.3d at 984; see also Strickland, 466 U.S. at 689 (“There are

countless ways to provide effective assistance in any given case. Even the best

criminal defense attorneys would not defend a particular client in the same way.”). 

12
Second, Hoyos has not demonstrated that the outcome of trial would have

been different but for counsel’s alleged deficiencies. As for evidence regarding

Mary, the jury learned that Mary, like Dan, used cocaine, and the toxicology

reports showed that Mary had almost four times as much active cocaine in her

blood as her husband at the time of her death, see Hoyos, 162 P.3d at 540. But the

jury also learned that Mary was shot while holding her three-year-old son, “and

then finished off with a bullet to the back of her head.” Id. at 558. Hoyos fails to

demonstrate that additional evidence would have overcome the evidence regarding

the circumstances of Mary’s murder, and he thus fails to establish prejudice. As

for the blood splatter evidence, Hoyos cannot demonstrate prejudice because

“[s]peculation about what an expert could have said is not enough to establish

prejudice.” Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). There was

substantial evidence supporting the jury’s first-degree murder verdicts and Hoyos

has not overcome his burden to show that counsel’s alleged errors were prejudicial. 

4. Hoyos next argues counsel were ineffective for failing to adequately

investigate his life history and mental impairments and thereby failing to present

sufficient mitigating evidence during the penalty phase. Strickland established the

standard for ineffective assistance of counsel claims regarding counsel’s

13
investigation into potential mitigating evidence: “[S]trategic choices made after

less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on the investigation.”

466 U.S. at 690–91. Consequently, “[i]n any ineffectiveness case, a particular

decision not to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s judgments.”

Id. at 691. 

We agree with the district court that Hoyos did not show that defense

counsel’s investigations—and any decision not to investigate further—fell below

an objectively reasonable standard. As part of its investigation, Hoyos’s defense

team made several trips to Mexico to interview members of Hoyos’s family,

retained a psychologist to evaluate Hoyos, and consulted with a social

anthropologist who studied torture in Mexico. As the district court observed,

counsel “made a strategic decision to focus on sympathy and avoid introducing

character testimony to keep evidence of [Hoyos’s] prior criminal activity away

from the jury.” Counsel decided that Hoyos’s family members would testify

during the penalty phase not about “what a great person Mr. Hoyos has been in the

past, but how much they would miss him in the future were he to die.” This

decision was strategic because counsel wanted to avoid “open[ing] the door to any

14
character impeachment or rebuttal,” to shield the jury from hearing evidence of

Hoyos’s prior convictions in Mexico for robbery, theft, forgery, and drugtrafficking. Counsel’s decisions were reasonable in light of their sentencing

strategy. Cf. Wiggins v. Smith, 539 U.S. 510, 527 (2003) (“[A] reviewing court

must consider the reasonableness of the investigation said to support [counsel’s]

strategy.”). 

Moreover, Hoyos cannot establish prejudice because he fails to demonstrate

that the additional mitigating evidence would have overcome the substantial

aggravating evidence, even if counsel adopted the strategy that Hoyos now urges

was required. The California Supreme Court was not unreasonable in concluding

otherwise. 

5. Last, Hoyos briefly argues his death sentence violates Atkins v. Virginia,

536 U.S. 304 (2002), because he “suffers from serious mental disabilities of a

neuropsychological nature that are the functionally [sic] equivalent of mental

retardation with respect to diminishing culpability.”8 Atkins held that executions of

intellectually disabled individuals are cruel and unusual punishments prohibited by

8

 While courts “formerly employed the phrase ‘mentally retarded,’ we now

‘us[e] the term ‘intellectual disability’ to describe the identical phenomenon.”

Brumfield v. Cain, 576 U.S. 305, 308 n.1 (2015) (alteration in original) (quoting

Hall v. Florida, 572 U.S. 701, 704 (2014)). 

15
the Eighth Amendment. Id. at 321. Hoyos concedes that evidence in the record as

to his disability “may not be identical to th[at] in Atkins,” but nonetheless urges us

to remand for a hearing on the issue. Hoyos has not demonstrated how the

California Supreme Court’s denial of this claim violated clearly established federal

law or was based on an unreasonable determination of the facts, and he does not

explain what new evidence would be unearthed at an evidentiary hearing. 

Accordingly, we affirm the district court’s denial of this claim. 

AFFIRMED. 

16