FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REYNALDO MEDRANO

AYALA,

Petitioner-Appellant,

v.

KEVIN CHAPPELL,

Warden,

Respondent-Appellee.

No. 13-99005

D.C. No.

3:01-cv-00741-BTM-MDD

OPINION

Appeal from the United States District Court

for the Southern District of California

Barry Ted Moskowitz, Chief District Judge, Presiding

Argued and Submitted December 10, 2015

San Francisco, California

Filed July 20, 2016

Before: Alex Kozinski, Jay S. Bybee,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen
2 AYALA V. CHAPPELL

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of California

state prisoner Reynaldo Medrano Ayala’s 28 U.S.C. § 2254

habeas corpus petition challenging his conviction and death

sentence for triple homicide.

Ayala argued that his defense team was constitutionally

ineffective because his lawyers failed to present evidence that

would have called into question the credibility of two key

prosecution witnesses. The panel agreed with the district

court that the California Supreme Court reasonably deferred

to defense counsel’s choices regarding exclusion of gang

affiliation evidence. The panel held that defense counsel’s

initial decision not to present an inmate’s testimony to

impeach prosecution witness Juan Manuel Meza did not fall

below an objective standard of reasonableness. The panel

also agreed with the district court’s analysis of counsel’s

decision not to reopen the defense case after witness Rafael

Mendoza Lopez (“Rafa”) recanted his exonerating testimony. 

The panel explained that in light of the risks and difficulties

presented by pivoting away from a “no-gang” strategy, the

decision not to make such a dramatic transition did not fall

below an objectively reasonable standard of care. The panel

held that the California Supreme Court likewise did not

unreasonably deny Ayala’s ineffective-assistance claims as

theyrelate to calling “other witnesses,” whom Ayala admitted

counsel believed were gang-affiliated. The panel held that

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
AYALA V. CHAPPELL 3

the California Supreme Court reasonably rejected Ayala’s

claim that counsel failed to independently investigate the

gang affiliation of numerous witnesses before deciding not to

call them. The panel explained that even if it reviewed this

claim de novo, Ayala would not be eligible for relief. 

Agreeing with the district court that evidence Ayala first

presented in the federal proceedings does not strengthen his

ineffective-assistance claims, the panel declined to stay his

federal case so that he can seek reconsideration of those

claims in the California Supreme Court. The panel held that

it was not unreasonable for the California Supreme Court to

resolve his ineffective-assistance claims without first granting

him an evidentiary hearing. 

The panel denied on the merits an uncertified and

unexhausted claim under Brady v. Maryland that the state

failed to disclose impeachment evidence about Meza, and

denied as moot Ayala’s request for a certificate of

appealability as to that claim. Because Ayala did not

establish that the state suppressed the information that

underpins his certified Brady claims relating to Meza, the

panel held that the state court’s summary denial of them was

not unreasonable. The panel held that the California Supreme

Court’s application of Brady, in summarily denying Ayala’s

claim that the state concealed evidence that Detective Carlos

Chacon had a longstanding bias against Ayala and his

brother, was reasonable. 

The panel held that the California Supreme Court’s

rejection of Ayala’s witness intimidation claim – that Rafa

recanted his exonerating testimony as a result of threats and

intimidation by Detective Chacon – was not contrary to or an

unreasonable application of Webb v. Texas. The panel held

that the California Supreme Court did not misapply federal
4 AYALA V. CHAPPELL

law when it rejected Ayala’s claim that the state violated

Napue v. Illinois by failing to correct Rafa’s testimony that

Detective Chacon did not threaten him.

The panel held that the California Supreme Court’s

rejection of Ayala’s claim that the trial court committed

constitutional error when it refused to strike a juror for cause

was not contrary to or an unreasonable application of Morgan

v. Illinois. The panel could not say that the California

Supreme Court’s denial of Ayala’s claim that the trial court

violated his constitutional right to present a defense when it

excluded under California hearsay rules the exculpatory

statements of a deceased witness was an unreasonable

application of Chambers v. Mississippi. The panel held that

the California Supreme Court’s rejection of Ayala’s claim of

prosecutorial misconduct during closing argument was not an

unreasonable application of Darden v. Wainwright, and that

the rejection of Ayala’s related ineffective-assistance claim

was likewise not unreasonable. The panel held that Ayala’s

inability to show prejudice is fatal to his due-process

challenge to the penalty-phase admission of evidence that

nearly ten years before trial Ayala murdered a fellow inmate. 

The panel held that Ayala has not suffered the prejudice

that would rise to the level of a constitutional violation based

on cumulative error.

The panel held that Ayala does not meet the high

threshold of proof that would be required to support a

freestanding claim, if cognizable on federal habeas review, of

actual innocence.
AYALA V. CHAPPELL 5

COUNSEL

D. Jay Ritt (argued), Ritt, Tai, Thvedt & Hodges, Pasadena,

California; Michael R. Belter (argued), Law Offices of

Michael R. Belter, Pasadena, California; for PetitionerAppellant.

Michael T. Murphy (argued) and Robin Urbanski, Deputy

Attorneys General; Holly D. Wilkins, Supervising Deputy

AttorneyGeneral; Julie L. Garland, Senior Assistant Attorney

General; Gerald A. Engler, Chief Assistant AttorneyGeneral;

Kamala D. Harris, Attorney General; Office of the Attorney

General, San Diego, California; for Respondent-Appellee.

OPINION

CHRISTEN, Circuit Judge:

Reynaldo Medrano Ayala appeals from the district court’s

denial of his petition for a writ of habeas corpus under

28 U.S.C. § 2254. Ayala was convicted of triple homicide in

1988, and he is currently on death row in California. He

argues that his trial was fundamentally unfair, and federal

habeas relief is therefore warranted, primarily because his

lawyer unreasonably failed to impeach the prosecution’s key

witnesses with evidence that would have undermined their

credibility. Ayala also claims that the State concealed

evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963), that a San Diego police officer threatened and

intimidated witnesses, and that the trial court committed

several constitutional errors. Because we conclude the

California Supreme Court’s resolution of Ayala’s claims was

not contrary to clearly established federal law, we affirm the
6 AYALA V. CHAPPELL

district court’s denial of the petition for writ of habeas

corpus.1

BACKGROUND

I. Facts

On April 26, 1985, Jose Rositas, Marcos Zamora, and

Ernesto Dominguez Mendez (“Dominguez”) were murdered

execution-style in an auto body shop located on 43rd Street

in San Diego, California.2 People v. Ayala, 1 P.3d 3, 11–12

(Cal. 2000). Pedro “Pete” Castillo was shot at the same time,

but not fatally. He claimed to have been an intended fourth

victim who got away. The 43rd Street body shop was a hub

for drug distribution, and Dominguez—the owner of the

shop—was an active heroin distributor who may have had

connections with heroin suppliers in Mexico. According to

Castillo, the 43rd Street murders were a drug robbery gone

wrong.

The murders occurred around 8 p.m. Within a few hours,

San Diego gang intelligence detective Carlos Chacon urged

his counterparts in the San Diego homicide unit to investigate

brothers Hector and Reynaldo Ayala and their associate Juan

Manuel Meza as potential suspects.3 Two days later, Pete

 

1

 Ayala did not raise a Batson v. Kentucky, 476 U.S. 79 (1986), claim,

but another defendant, Ayala’s brother Hector, did. Hector and Ayala

were tried separately. Hector’s Batson challenge is the subject of Davis

v. Ayala, 135 S. Ct. 2187 (2015).

 

2

 We refer to this crime as the “43rd Street murders.”

3 We refer to Hector Ayala as “Hector,” and his brother, petitioner

Reynaldo Ayala, as “Ayala.”
AYALA V. CHAPPELL 7

Castillo identified Ayala, Hector, and Joe Moreno as the

perpetrators of the triple homicide. Id. at 14.

Ayala was arrested in June of 1985 and charged with

three counts of murder, one count of attempted murder, one

count of robbery, and three counts of attempted robbery. See

Cal. Penal Code §§ 187 (murder), 664 (attempt), 211

(robbery). Hector and Joe Moreno were arrested and charged

around the same time.

In February 1987, San Diego police officers arrested Juan

Manuel Meza for drug distribution. Meza pleaded guilty to

possession of cocaine several weeks after his arrest and

entered into a plea agreement that provided he would serve

four years in prison. Detective Chacon, who knew Meza

from childhood, visited Meza in jail several times during the

spring of 1987. Meza admitted to Chacon that he helped the

Ayalas plan the 43rd Street murders, even though he

ultimately did not participate. Meza met with the district

attorneys involved in Ayala’s case in April or May 1987 and

agreed to testify against Ayala, Hector, and Moreno. In the

summer of 1987, a district attorney appeared at Meza’s

sentencing on the drug possession charge. The D.A. asked

the judge to sentence Meza pursuant to Cal. Penal Code

§ 1170(d) so he could “recall the sentence and commitment

previously ordered and resentence the defendant” if Meza

testified in court proceedings relating to the 43rd Street

murders. Cal. Penal Code § 1170(d)(1).

A. Gang affiliation evidence

Ayala and Hector were believed to be members of the

Mexican Mafia—or EME—a prison gang with an active

street program that operated throughout southern California,
8 AYALA V. CHAPPELL

but all parties agreed that the 43rd Street murders were not

gang related. Ayala’s lawyers filed a pretrial motion in

limine in which they argued that mention of the Mexican

Mafia or Ayala’s gang affiliation at trial would be unduly

prejudicial and of questionable relevance to the case.

The state trial judge was initially disinclined to rule on the

motion. He agreed with the prosecution that it would be

difficult to rule on the admissibility of gang affiliation

evidence before hearing each witness’s testimony. The

defense team pursued this pre-trial ruling for months,

persistently arguing that, without a ruling, they would not be

able to “strategize [and] determine what course of action to

take with regard to jury selection and cross-examination.” 

The judge ultimately relented and ruled as follows:

[G]ang affiliation has nothing to do with

motive in terms of this particular case, so

there will be no testimony concerning motive

dealing with the Mexican Mafia. We know

that that’s not the case.

Gang affiliation has nothing to do with the

identity issue that’s presented, so there will be

no Mexican Mafia testimony concerning gang

affiliation.

. . .

Let me indicate this: That with reference to

credibility, the court’s going to require a 403

hearing if, in fact, we’re going to have to get

into this, the people see that after cross-
AYALA V. CHAPPELL 9

examination. We’ll deal with that on each

witness.

If, in fact, the people perceive a need to deal

with the credibility issue, then I’m going to do

it at side-bar before it goes in front of the jury.

I’m going to further request that the people

admonish their witnesses not to voluntarily

mention any gang affiliation, that each

witness be admonished on that point. . . . 

They will be admonished on direct.

The trial judge also said he would instruct witnesses not to

mention gangs in their cross-examination testimony, but “if

the question calls for that response, then so be it.” As the trial

progressed, the court ruled that each witness could mention

“group” or “association” if necessary, but not “EME” or

“Mexican Mafia.”

B. The State’s case

Ayala’s trial began in August 1988 and lasted two

months.4“The prosecution theorized that the murders

resulted from a robbery attempt that failed because it was

based on the perpetrators’ incorrect speculation that

Dominguez had just returned from Mexico with a quantity of

narcotics or cash.” Ayala, 1 P.3d at 12. The State presented

4 Although some of Ayala’s pre-trial proceedings were consolidated with

those of his brother, the two were tried separately. Ayala was tried first. 

Hector was tried second and was convicted. Moreno’s trial took place

after both Ayala’s trial and Hector’s trial, and he was acquitted on all

counts.
10 AYALA V. CHAPPELL

minimal physical evidence linking Ayala to the crimes and

instead built its case around the testimony of Pete Castillo

and Juan Manuel Meza.

Castillo testified that Dominguez and Zamora sold heroin

from the shop and that he was also involved in the heroin

distribution operation. He described how Ayala and Hector

frequented the shop to use and acquire heroin, and told the

jury that he saw Ayala, Hector, and Joe Moreno outside of the

body shop on the day of the murders, April 26, 1985. Id. at

13. At dusk, Castillo looked up from his work on a car and

saw Hector pointing a pistol at his head. Id. Hector led

Castillo into the shop where Dominguez,Zamora, and Rositas

were bound by duct tape. Id. Castillo testified that Ayala

demanded $10,000 from the victims, “or someone was going

to die.” Id. at 14. Castillo volunteered that he had some

money in his truck, and Ayala agreed to lead him there. 

Castillo used this opportunity to escape. He lifted the large

shop door, slid under it, and let it slam down behind him. As

he ran into the street, someone, likely Ayala or Moreno, fired

shots at him, and Castillo was wounded in the back. Castillo

fell onto 43rd Street, where police officers found him and

rushed him to the hospital. Id.

Castillo did not immediately identify the Ayalas or Joe

Moreno as the perpetrators of the crime. Rather, “while in

the ambulance on the way to the hospital, [he] said he did not

know the killers [but] that one of them was wearing a red

plaid shirt.” Id. at 15. The next day at the hospital, Castillo

repeated “that one of the killers was wearing a red Pendleton

shirt” when he was interviewed by a detective. Id. But the

day after that, Castillo identified the Ayalas and Joe Moreno

as the killers and also picked them out of a photo array. Id.

at 14.
AYALA V. CHAPPELL 11

In addition to providing an eyewitness account of the

crimes, Castillo’s testimony corroborated the prosecution’s

theory of the case: He told the jury that Hector inquired

about Dominguez’s whereabouts roughly a week before the

murders when Dominguez was in jail for minor offenses. Id.

at 12. Pursuant to Dominguez’s request, Castillo told Hector

that Dominguez was in Mexico rather than revealing that he

was in jail. Id.

Juan Meza was also an important witness for the State

because he testified that he helped plan the murders before

backing out on the day of the crime. Meza told the jury that

he and Hector went to the body shop to acquire drugs more

than ten times between January and April 1985. He

explained that about three weeks before the murders, the

Ayala brothers became angry with Dominguez over a drug

transaction, and Ayala proposed robbing and killing

Dominguez and some of the people who worked with him. 

Meza testified that in the weeks before the murder, he and the

Ayalas talked about Dominguez’s trip to Tijuana to buy a

large amount of drugs, tying the victims, and the types of

guns they would use to commit the crime. Meza also

described how, about a week before the murders, Hector

recruited Joe Moreno to serve as the getaway driver. Meza

testified that he went along with the Ayalas’ plan but he never

intended to participate in the murders because he feared the

Ayalas would use the crime as an opportunity to kill him. 

According to Meza, Hector told him to be ready to be picked

up on April 26 between 5 and 6 p.m., but Meza avoided his

home at the appointed time.
12 AYALA V. CHAPPELL

C. The defense

The defense presented evidence that “Castillo was in

league with the probable actual killers: two young Latino

men, one of whom was wearing a red plaid shirt of the

Pendleton brand or type.” Id. at 15. The defense also

focused on raising reasonable doubt by discrediting the

State’s primary witnesses.

Ayala’s trial counsel offered the testimony of Traci

Pittman in support of the defense’s alternative-assailant

theory. Pittman testified that on the night of the murders she

was at a liquor store across 43rd Street and a young Mexican

man wearing a Pendleton-type shirt walked past her. Id. She

thought he was concealing something that could have been a

gun. Id. Pittman said the Mexican man was joined by a

second Mexican-looking man, and the two disappeared into

the complex containing the body shop. Id. Two minutes

later, Pittman heard gunshots, saw a man—presumably

Castillo—running from the body shop, and then heard several

more shots. Id. At trial, defense counsel asked Pittman

whether Ayala was one of the men she saw the night of the

murder, and Pittman answered “no.” Pittman’s testimony

corroborated Castillo’s initial identification of the killer as

someone (not Hector or Reynaldo Ayala) who was wearing

a red, Pendleton-style shirt.

The defense also called Rafael Mendoza Lopez (“Rafa”)

as a witness. Rafa was a long-time friend of Dominguez who

frequented the body shop to purchase drugs. Id. at 15–16. 

On direct examination, Rafa testified that he went to the body

shop on the day of the murders to get heroin from Castillo,

and he saw several strangers whom he perceived to be from

Mexico. Rafa testified that he did not see the Ayalas at the
AYALA V. CHAPPELL 13

shop that day. Rafa described standing next to Castillo when

Castillo opened the trunk of a car and took out two guns that

were buried in a pile of dirty clothes. Rafa recalled Castillo

telling him “that he was waiting for some people from

Mexico.”

The defense endeavored to weaken the State’s case by

impeaching its primary witnesses, Castillo and Meza. 

Counsel cross-examined Castillo about his role in the body

shop’s drug distribution business and false statements he

made during the preliminary hearing in which he denied any

knowledge of drug-related activity at the body shop. Id. at

14–15. The defense emphasized that Castillo did not initially

identify Ayala as the killer, but rather said the killer was a

stranger “wearing a red Pendleton shirt.” Id. at 15. Counsel

impeached Meza with the fact that he was testifying in the

hope of getting his sentence reduced, inconsistencies in his

story, that it took more than a year for him to come forward,

meetings he had with Chacon before deciding to testify, and

a statement he made to his parole officer in which he

admitted he had a propensity for lying.

D. The State’s rebuttal

Rafa dramatically recanted his testimony in the

prosecution’s rebuttal. Called back to the witness stand, he

told the jury that he invented the story about Castillo taking

guns from the trunk of a car and commenting about waiting

for people “from Mexico.” He also admitted, contrary to his

earlier account, that he did see the Ayalas at the body shop

late in the afternoon on the day of the murders.

When asked why he lied on Ayala’s behalf, Rafa testified

that he did it because Ayala asked him to, and because he was
14 AYALA V. CHAPPELL

afraid that if he refused to help the Ayalas, he “might, you

know, get killed or something.” According to Rafa, Ayala

asked him to testify falsely for the defense at a jailhouse visit

that occurred shortly after Ayala’s arrest in the summer of

1985. Rafa explained that Ayala pressed a piece of paper

against the visiting room glass separator. A handwritten note

on the paper instructed Rafa to get in touch with a defense

investigator and tell him “that [the Ayalas] weren’t [at the

shop] on that date, make it seem like it was some Mexicans

from across the border that Pete [Castillo] had hired to come

and do the hit.” Rafa testified that the note described the

guns Rafa should connect with Castillo and said: “[w]hat

happened to Chacho [Dominguez] had to happen.”

Lead defense counsel vigorously cross-examined Rafa

about his flip-flopped testimony. Counsel questioned the

plausibility of Rafa’s meeting with Ayala, including how

Ayala could write such intricate directions on a piece of paper

small enough to avoid detection by prison guards. Id. at 16. 

She also introduced evidence that cast doubt on the credibility

of Rafa’s recantation. Id. In particular, though Rafa testified

that a person with the nickname “Rudy Green Eyes” Ybarra

accompanied him on the visit to see Ayala in jail, counsel

showed that “Rudy Green Eyes” was incarcerated at that

time. Id.

Defense counsel also explored a meeting Rafa had with

Detective Chacon during which, counsel believed, Chacon

coerced Rafa into recanting. Chacon visited Rafa shortly

after Rafa testified for the defense, when Rafa was in a

holding cell awaiting transport back to prison. During this

visit, Chacon accused Rafa of perjuring himself to get into the

good graces of the prison’s “Southern” group, with which

Ayala was affiliated. Chacon told Rafa he believed this effort
AYALA V. CHAPPELL 15

failed and that Rafa would face danger from both the

“Southern” group and a rival “Northern” group once he

returned to prison. Rafa admitted that Chacon discussed

protecting him against these groups, and defense counsel

accused Rafa of trading his testimony for the relative safety

Chacon promised. On redirect, Rafa confirmed that he feared

the “Southern” and “Northern” groups and believed Ayala

had “influence over what other people in this Southern group

might do,” but he denied that Chacon frightened him into

recanting his testimony. Rafa maintained that he willingly

told Chacon the truth because he was angry that people

affiliated with Ayala “show[ed him] no kind of respect” even

after he promised to lie on Ayala’s behalf.

E. Detective Carlos Chacon

Detective Carlos Chacon testified only briefly at trial, but

Ayala argues that Chacon played a significant behind-thescenes role in this case. Chacon was a San Diego gang

intelligence officer whose regular duties required that he

gather intelligence about prison gangs operating in southern

California, including the Mexican Mafia. Chacon had pretrial contact with several of the witnesses in Ayala’s trial.

In addition to meeting with Rafa just before he agreed to

recant the testimony he gave on Ayala’s behalf, Chacon

visited Juan Meza after Meza’s February 1987 drug arrest,

and the two discussed the 43rd Street murders. Meza was a

Mexican Mafia affiliate who spent much of the decade

between 1975 and 1985 in prison. Chacon was well

acquainted with Meza because the two grew up in the same

neighborhood. Chacon frequently visited Meza in jail to

elicit information about gangs. Several weeks after one such

visit, Meza admitted to his involvement in planning the 43rd
16 AYALA V. CHAPPELL

Street murders, and several months after that, he agreed to

testify against the Ayalas.

F. The verdict

After deliberating for less than a week, the jury found

Ayala guilty of all charges. Id. at 11. The trial court

sentenced him to death in early January 1989, and Ayala

appealed.

Ayala filed a state habeas corpus petition in the California

Supreme Court while his direct appeal was pending. The

petition raised several claims for relief and requested an

evidentiary hearing. The California Supreme Court decided

Ayala’s direct appeal in June 2000, affirming Ayala’s

conviction and sentence in a reasoned opinion. See id. at 52. 

The California Supreme Court summarily denied Ayala’s

habeas corpus petition on the same day. Ayala’s conviction

became final on March 5, 2001, when the United States

Supreme Court denied his petition for writ of certiorari. See

Ayala v. California, 532 U.S. 908 (2001) (mem.).

II. Procedural history

Ayala timely filed a federal habeas corpus petition in the

Southern District of California. Shortly thereafter, the district

court stayed the federal proceedings so Ayala could return to

state court and exhaust several of his claims.

Ayala filed his first amended petition for writ of habeas

corpus (henceforth, “Exhaustion Petition”) in the California

Supreme Court in September 2002. He filed two exhibits

with his Exhaustion Petition: (1) a declaration by defense

investigator Eric Hart; and (2) a declaration by Strickland
AYALA V. CHAPPELL 17

expert Steven L. Harmon. He also requested an evidentiary

hearing. The California Supreme Court summarily denied

each of Ayala’s claims on the merits the following year. 

“[S]eperately and independently,” the court found many of

Ayala’s claims to be procedurally barred as untimely.

Ayala then filed a first amended petition for writ of

habeas corpus in federal district court in which he asserted

seventy-five claims for relief. Between February 2008 and

June 2009, the district court issued three orders resolving

cross-motions for summary judgment on most of Ayala’s

claims. The court decided that some of Ayala’s ineffective

assistance of counsel and witness intimidation claims were

potentially meritorious, and it granted Ayala’s request for an

evidentiary hearing on them.5

The district court’s evidentiary hearing on Ayala’s

ineffective assistance of counsel and witness intimidation

claims spanned twenty court days over a period of nine

months in 2010. The district court took testimony from about

twenty witnesses, and the parties introduced nearly 120

exhibits. Following this hearing, Ayala filed a third amended

habeas corpus petition for the sole purpose of adding a new

claim, the seventy-sixth, based on testimony adduced at the

hearing.

On March 28, 2013, the district court issued a lengthy,

well-reasoned order granting the State’s motion for summary

judgment on Ayala’s remaining exhausted claims. See Ayala

v. Chappell, No. 01CV0741-BTM (MDD), 2013 WL

1315127 (S.D. Cal. Mar. 28, 2013). In a separate order, it

granted the State’s motion for summaryjudgment, and denied

 

5

 The hearing covered claims 4, 5, 8, 12, 18, 19, 20, and 24.
18 AYALA V. CHAPPELL

Ayala’s request for a certificate of appealability (COA), on

Ayala’s unexhausted seventy-sixth claim. The court issued

a final judgment and granted a COA on twenty-six claims,

including sixteen of the seventeen claims raised here. Ayala

timely filed a notice of appeal. We have jurisdiction under

28 U.S.C. § 1291.

LEGAL STANDARDS

We review de novo the district court’s denial of Ayala’s

habeas corpus petition. Hurles v. Ryan, 752 F.3d 768, 777

(9th Cir. 2014).

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) governs Ayala’s petition because he filed it

after 1996. AEDPA substantially limits the power of federal

courts to grant habeas relief to state prisoners. See id. Under

AEDPA, a federal court may not grant a prisoner’s petition

on a claim that was decided on the merits in state court unless

the state court’s 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); see also Glebe v. Frost, 135 S. Ct. 429,

430 (2014).
AYALA V. CHAPPELL 19

“‘[C]learly established Federal law’ . . . is the governing

legal principle or principles set forth by the Supreme Court

[in its holdings] at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). 

A state court’s decision is contrary to clearly established

federal law “if the state court applies a rule that contradicts

the governing law set forth in [the Supreme Court’s] cases”

or “confronts a set of facts that are materially

indistinguishable from a decision of [the] Court and

nevertheless arrives at a result different from [Supreme

Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405–06

(2000). A state court’s decision is an unreasonable

application of clearly established federal law if it “correctly

identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner’s case.” Id. at 407–08. A

state court’s factual findings are unreasonable if “reasonable

minds reviewing the record” could not agree with them. 

Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (alteration

omitted) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). 

In any case, “[f]or relief to be granted, a state court merits

ruling must be ‘so lacking in justification that there was an

error . . . beyond any possibility for fairminded

disagreement.’” Bemore v. Chappell, 788 F.3d 1151, 1160

(9th Cir. 2015) (quoting Harrington v. Richter, 562 U.S. 86,

103 (2011)).

When considering whether a state court’s decision was

unreasonable under § 2254(d)(1), we may consider only “the

record that was before the state court that adjudicated the

claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
20 AYALA V. CHAPPELL

(2011).6 But if we determine “the petitioner has satisfied

§ 2254(d)” based only on the evidence that was before the

state court, “we evaluate the claim de novo, and we may

consider evidence properly presented for the first time in

federal court.” Crittenden v. Chappell, 804 F.3d 998, 1010

(9th Cir. 2015) (quoting Hurles v. Ryan, 752 F.3d 768, 778

(9th Cir. 2014)).

We apply AEDPA’s standards to the state court’s last

reasoned decision on the merits of a petitioner’s claims. 

Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007)

(en banc). The California Supreme Court decided seven of

the claims at issue here in its reasoned decision on direct

review. See Ayala, 1 P.3d at 17–42, 48–52. Ayala raised the

remaining claims in his Exhaustion Petition, so the only

merits decision on those claims is the California Supreme

Court’s September 2003 summary denial. See Harrington,

562 U.S. at 98 (holding that a summary denial from the

California Supreme Court is an “adjudicat[ion] on the merits”

under AEDPA). For claims that the California Supreme

Court decided on direct appeal, “we apply AEDPA deference

to the state court’s analysis.” Bemore, 788 F.3d at 1161. For

claims that the California court addressed only in its summary

denial, “we conduct an independent review of the record to

‘determine what arguments or theories . . . could have

supported [] the state court’s decision.’” Id. (quoting

Harrington, 562 U.S. at 102) (alterations in original); see also

Cannedy v. Adams, 706 F.3d 1148, 1157–59 (9th Cir. 2013)

(for claims addressed both in a summary denial and a

6

 The Supreme Court issued its decision in Pinholster after the district

court completed the 2010 evidentiary hearing in Ayala’s case but before

it issued its final summary judgment order.
AYALA V. CHAPPELL 21

reasoned opinion, we “look through” the summary denial to

review the reasoned decision).

DISCUSSION

I. Procedural bar

We first address the State’s threshold argument that the

procedural bar doctrine prevents us from reaching the merits

on several of Ayala’s claims. The procedural bar doctrine

prohibits a federal court from granting relief on the merits of

a state prisoner’s federal claim when the state court denied

the claim based on an independent and adequate state

procedural rule. Coleman v. Thompson, 501 U.S. 722,

729–30 (1991). The doctrine is implicated where, as here, the

state court’s “reliance upon [the state’s] procedural bar rule

was an independent and alternative basis for its denial of the

petition.” Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir.

2000). Even if the procedural bar doctrine otherwise

precludes relief on a prisoner’s claim, he or she “may obtain

federal review of [that] claim by showing cause for the

default and prejudice from a violation of federal law.” 

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012).

In its 2003 summary denial of Ayala’s Exhaustion

Petition, the California Supreme Court ruled that many of the

seventy-five claims included in the petition were

“procedurally barred . . . as untimely” in addition to denying

them on the merits. See In re Clark, 855 P.2d 729, 737–62

(Cal. 1993). The State argued before the district court that

the procedural bar doctrine prevented the court from granting
22 AYALA V. CHAPPELL

relief on claims the California court dismissed as untimely.

7

The district court rejected the State’s procedural bar

arguments after concluding that “the procedural rules in

question are [not] sufficient to prohibit the consideration of

these claims on the merits.” After the district court issued

this ruling and held an evidentiary hearing on the merits of

Ayala’s petition, the Supreme Court decided Walker v.

Martin, 562 U.S. 307 (2011). Walker holds that California’s

timeliness rule is an independent and adequate state law

ground sufficient to bar federal habeas relief on untimely

claims. See id. at 310, 315, 317 (citing In re Clark, 855 P.2d

at 738 & n.5). Citing Walker, the State raised the procedural

bar doctrine in its final summary judgment briefing to the

district court.

The district court still declined to resolve Ayala’s federal

petition on procedural grounds. Having concluded the 20-day

evidentiary hearing and foregone defense counsel’s offer to

brief cause and prejudice, the court reasoned that “deciding

the merits of [each] claim will prove to be less complicated

and time-consuming than adjudicating the issue of procedural

default.” The district court relied on our decision in Franklin

v. Johnson, 290 F.3d 1223 (9th Cir. 2002), to reach the merits

of Ayala’s claims. Id. at 1232 (“[C]ourts are empowered to,

7 The California court also rejected many claims as successive and/or

repetitive ofissues previously raised, but before our court, the State asserts

procedural bars based only on timeliness grounds, and only as to claims

1, 4, 6, 12, 18, and 20. Any argument that additional claims are

procedurally barred because they were successive, repetitive, or untimely

is therefore waived. See Slovik v. Yates, 556 F.3d 747, 751 n.4 (9th Cir.

2009) (declining to reach a procedural bar argument the state raised for the

first time in a petition for rehearing); Vang v. Nevada, 329 F.3d 1069,

1073 (9thCir. 2003) (noting that procedural bar is subject to waiver by the

state).
AYALA V. CHAPPELL 23

and in some cases should, reach the merits of habeas petitions

if they are . . . clearly not meritorious despite an asserted

procedural bar.”).

The State renews its procedural bar argument here, and

we follow the same tack as the district court. The State is

correct that Walker precludes relief on several of Ayala’s

claims unless Ayala demonstrates cause and prejudice for his

procedural default, see Walker, 562 U.S. at 316, but the

parties did not develop a record on cause and prejudice. See,

e.g., Loveland, 231 F.3d at 644–45 (remanding for the district

court to hold an evidentiary hearing on cause and prejudice). 

Thus, in keeping with Franklin’s admonishment that where

claims are “clearly not meritorious,” “appeals courts are

empowered to, and in some cases should, reach the merits of

habeas petitions . . . despite an asserted procedural bar,”

290 F.3d at 1232, we proceed to evaluate Ayala’s claims on

the merits.

II. Ineffective assistance of counsel

Ayala first argues that his defense team was

constitutionally ineffective because his lawyers failed to

present evidence that would have called into question the

credibility of key prosecution witnesses Meza and Castillo.8

More specifically, Ayala claims trial counsel unreasonably

declined to call witnesses: (1) Richard Savocchio and Raul

Garcia, who would have testified that Meza invented his story

about the Ayalas’ participation in the 43rd Street murders to

obtain a reduction in his own custodial time, and (2) Johnny

Mendez and Luis Garcia, who would have testified that

 

8

 Ayala draws this argument from claims 18, 19, and 20.
24 AYALA V. CHAPPELL

Castillo “had, prior to the murders, solicited [them] to kill

victim Zamora.”

“The clearly established federal law for ineffective

assistance of counsel [“IAC”] claims, as determined by the

Supreme Court, is Strickland v. Washington, 466 U.S. 668

(1984) . . . .” Andrews v. Davis, 798 F.3d 759, 774 (9th Cir.

2015). To prevail on an IAC claim, a defendant must

establish that his counsel’s performance was constitutionally

deficient, and that “the deficient performance prejudiced the

defense.” Strickland, 466 U.S. at 687. Strickland’s “deficient

performance” prong requires a defendant to show “that

counsel’s representation fell below an objective standard of

reasonableness” such that “counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. at 687–88. In evaluating a lawyer’s

performance, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Id. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). 

Strickland’s “prejudice” prong requires a defendant to show

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedingwould have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at

694.

“Under the AEDPA, the primary issue is whether the state

court adjudication of the Strickland claim[] was objectively

reasonable.” Woods v. Sinclair, 764 F.3d 1109, 1131 (9th

Cir. 2014). “The standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’ and when the two
AYALA V. CHAPPELL 25

apply in tandem, review is ‘doubly’ so.” Harrington,

562 U.S. at 105 (citations omitted). Thus, even if we would

find, on de novo review, that petitioner can satisfy both

Strickland prongs, “AEDPA requires that a federal court find

the state court’s contrary conclusions . . . objectively

unreasonable before granting habeas relief.” Woods,

764 F.3d at 1132.

A. The defense team’s“no-gang” approach

Long before trial started, Ayala’s defense team decided

on a plan to insulate the jury from hearing evidence that

Ayala was affiliated with the Mexican Mafia. This plan

informed defense counsels’ decisions not to present the

testimony of several impeachment witnesses whom they

believed were affiliated with prison gangs. Ayala now argues

that his lawyers’ decisions not to call these witnesses

amounted to deficient performance under Strickland, and that

the California Supreme Court’s denial of this IAC claim was

unreasonable. We analyze this argument by considering first

whether the California Supreme Court reasonably applied

Strickland’s deferential standard when it upheld the defense’s

“no-gang” trial plan, and then whether the defense team’s

decision not to call individual witnesses was consistent with

the plan.

The California court did not evaluate counsels’ overall

“no-gang” plan in a reasoned decision, so we “determine

what arguments or theories . . . could have supported[] the

state court’s decision[] and then . . . ask whether it is possible

fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision

of” the Supreme Court. Harrington, 562 U.S. at 102. We

conclude that the California Supreme Court reasonably
26 AYALA V. CHAPPELL

deferred to defense counsels’ choices regarding exclusion of

gang affiliation evidence.

The record leaves no doubt that counsels’ effort to avoid

mention of the Mexican Mafia or EME at trial was a carefully

considered, deliberately undertaken strategy, the likes of

which we cannot second-guess on federal habeas review. In

People v. Cardenas, 647 P.2d 569 (Cal. 1982), the California

Supreme Court recognized that gang affiliation evidence is

prejudicial because it invites a jury to find a defendant guilty

by association. Id. at 572. Ayala’s lawyers cited Cardenas’s

progeny in their motion in limine to exclude gang affiliation

evidence, where they argued that mention of the Mexican

Mafia would unduly prejudice Ayala.9 They attached to their

motion dozens of newspaper articles documenting the

prevalence of gang violence in Southern California, and

argued that jurors would likely have negative impressions of

gangs. Counsel doggedly pursued a ruling on this motion in

limine for nearly a year, insisting that without a ruling the

defense would be unable to “strategize [and] determine what

course of action to take with regard to jury selection and

cross-examination.” In light of community awareness of

gang-related violence in San Diego in the mid-1980s, we

cannot say that the defense trial team’s decision to insulate

the jury from Ayala’s gang affiliation was unreasonable, nor

are we persuaded that the California Supreme Court

9 Ayala argues that his counsel were ineffective because they overlooked

key California cases, namely Cardenas and People v. Munoz, 204 Cal.

Rptr. 271, 278 (Cal. Ct. App. 1984), which held that the prosecution could

inquire into a witness’s gang membership only by using euphemisms like

“groups” or “affiliation.” The record does not show that counsel

overlooked this case law. Counsel cited Munoz in the motion in limine,

which argued (in part) that neither the State nor its witnesses should be

allowed to mention “gang,” “Mexican Mafia,” or “EME.”
AYALA V. CHAPPELL 27

unreasonably applied Strickland when it deferred to the

defense team’s informed, strategic choice. See Harrington,

562 U.S. at 105.

Ayala nevertheless argues that his lawyers’ failure to call

witnesses with any connection to a gang was overly cautious

and unduly hindered Ayala’s defense. We disagree. Ayala’s

argument assumes that defense counsel could have controlled

the extent to which the trial court would have allowed the

prosecution to explore a witness’s gang affiliation on crossexamination if the subject had been broached on direct

examination. But the record refutes that assumption. The

trial court did not categorically prohibit all gang-related

testimony because, as the court made clear in its ruling on the

defense motion in limine, a witness’s gang affiliation could

be highly relevant to his or her motive to lie on Ayala’s

behalf. The court correctly ruled that such testimony might

be admitted on cross examination if “the people perceive a

need to deal with the credibility issue” or “if [a] question calls

for that response,” and it did not specify whether or to what

extent a witness’s mention of gangs might open the door to

evidence that could connect Ayala to the Mexican Mafia.

And even though the trial court cautioned each witness not to

mention the Mexican Mafia, defense counsel risked losing

command of a witness’s testimony once the witness was on

the stand. See Mohamed v. Jeppesen Dataplan, Inc.,

614 F.3d 1070, 1089 (9th Cir. 2010) (en banc) (recognizing

the inherent unpredictabilityin presentingwitness testimony).

For these reasons, calling any witness with a gang connection

necessarily entailed some risk of tainting Ayala in the jury’s

eyes, and the defense team’s cautious approach to these

witnesses was well within the broad “range of reasonable

professional assistance.” Strickland, 466 U.S. at 689; see

also id. at 690 (“[S]trategic choices made after thorough
28 AYALA V. CHAPPELL

investigation of law and facts relevant to plausible options are

virtually unchallengeable.”).

B. Counsel’s decision not to call Richard Savocchio

Ayala’s primary IAC claim is that his lawyers were

constitutionally ineffective because they failed to impeach

Juan Meza with the testimony of inmate Richard Savocchio.

Defense counsel subpoenaed Savocchio in anticipation of

his testifying on Ayala’s behalf. Savocchio’s prison file

showed that he had some sort of problem with the Mexican

Mafia while incarcerated so, consistent with its pre-trial

ruling, the trial court required him to testify at a hearing

outside of the jury’s presence to determine the extent to

which he could be impeached before the jury with evidence

of gang ties. Ayala, 1 P.3d at 31.

Savocchio said that he and Meza were incarcerated

together after the 43rd Street murders and that Meza told him:

“these guys [the Ayalas] are going down anyhow, and I’m

going to get something out of it. It’s all bullshit. I don’t

know anything about it, they are going anyways.” Defense

counsel argued that “Savocchio understood the meaning of

the conversation to be that Mr. Meza was cutting a deal for

himself to testify in the case about which he knew nothing.” 

The prosecution and the defense both asked Savocchio about

the gang notation in his prison file, and Savocchio denied any

gang affiliation. He testified that he was not acquainted with

any Mexican Mafia members. Savocchio explained that the

gang notation in his file related to a lie he told years earlier: 

In order to manipulate a transfer out of Folsom State Prison,

he falsely claimed he owed a debt to a Mexican Mafia

member incarcerated there.
AYALA V. CHAPPELL 29

After hearing Savocchio’s testimony outside the presence

of the jury, the trial court ruled that if the defense called

Savocchio to testify, the prosecution would be allowed to

impeach Savocchio with his admission that he lied to prison

officials and that the lie involved the Mexican Mafia. The

defense expressed concern that the prosecutor’s crossexamination about the Mexican Mafia might backfire and

harm Ayala and so decided against calling Savocchio.

Ayala argued on direct appeal that his trial counsel was

constitutionally ineffective for declining to call Savocchio,

and the California Supreme Court rejected this argument in

a reasoned decision. Id. at 32–33. Ayala raised the same

Savocchio-based IAC claim on federal habeas review with

slightly better results. The district court ruled that the

California Supreme Court’s resolution of this claim was

unreasonable under 28 U.S.C. § 2254(d)(1) because the state

court’s rationale for denying it was inconsistent with its

reasoning on a related evidentiary ruling.

10 The district court

 

10 Ayala also argued on direct appeal that any mention of the Mexican

Mafia would have been “substantially more prejudicial than probative,”

and that the trial court erred when it ruled that, if the defense called

Savocchio, the prosecution could impeach him with evidence that he lied

about having a problem with the Mexican Mafia. Ayala, 1 P.3d at 32

(citing Cal. Evid. Code § 352). The California Supreme Court was not

persuaded. It reasoned, “Savocchio would have been impeached, if at all,

with evidence that he was not in a prison gang.” Id. The California court

“fail[ed] to discern how [Savocchio’s testimony] would link defendant

with the Mexican Mafia in the jurors’ minds.” Id. The district court ruled

that this rationale was irreconcilable with the state court’s simultaneous

dismissal of Ayala’s Savocchio-related IAC claim because, in dismissing

the IAC claim, the California court implicitly recognized that Savocchio’s

testimony about the Mexican Mafia could have harmed Ayala. The

district court’s point is well taken, compare id., with id. at 33, but we are

not persuaded that the state court’s decision was unreasonable within the
30 AYALA V. CHAPPELL

reviewed de novo Ayala’s claim that his lawyers were

ineffective for failing to call Savocchio and still denied relief. 

After thoroughly examining the record, including new

evidence Ayala adduced at the 2010 evidentiary hearing, the

district court concluded that counsels’ decision regarding

Savocchio did not prejudice Ayala. Ayala renews this IAC

claim in our court, pressing his strongest theory: if nothing

else, Ayala argues, the defense should have reopened its case

to call Savocchio after Rafa recanted because at that point the

jury must have known Ayala was affiliated with a gang, and

there would have been nothing to lose by allowing the jury to

hear Savocchio’s anticipated reference to the Mexican Mafia.

We agree that the cost-benefit analysis associated with

Savocchio’s testimony significantly changed after Rafa

recanted. Recalled to the witness stand by the prosecutor,

Rafa told the jury that he had seen the Ayala brothers at the

shop on the day of the murders and that he lied when he said

otherwise because Ayala asked him to. He testified that he

knew of (and feared) the “Northern group” and the “Southern

group” at Donovan State Prison. When asked by the

prosecutor whether he “believe[d] that the defendant in this

case has any influence over what other people in this

Southern group might do, as it pertains to you,” Rafa

answered “[y]es.” He also said he initially testified for Ayala

because he was afraid that if he did not “cooperate with” the

Ayalas he might “get killed or something.” Rafa’s

recantation certainly marked a sea change in the trial, but we

are not convinced that his testimony about the “Southern” and

“Northern” groups inevitably led the jury to conclude that

meaning of § 2254(d)(1), because, as the California Supreme Court

recognized, any mention of the Mexican Mafia—even one seemingly

unrelated to Ayala—could have undermined counsel’s “no-gang” strategy.
AYALA V. CHAPPELL 31

Ayala was personally affiliated with the Mexican Mafia. The

questions about “Northern” and “Southern” groups occupied

a relatively small part of Rafa’s testimony, neither Rafa nor

counsel used the words “gang,” “EME,” or “Mexican Mafia,”

and from our review of the record it is not clear that the jury

would have equated these prison groups with the street gangs

that had received notoriety in southern California at the time

of the trial. In this sense, defense counsel’s “no-gang”

strategy may have partially survived Rafa’s testimony.

More importantly, counsel did not make their decision

regarding Savocchio in a vacuum but instead had to gauge the

likely value to be gained from Savocchio’s testimony. Even

after Rafa recanted, there were several reasons to think that

Savocchio’s testimony might have been more harmful than

helpful: (1) Savocchio did not have a close relationship with

Meza before Meza allegedly admitted to him that he was

testifying falsely against Ayala, and it is unclear why Meza

would have chosen to confide in Savocchio; (2) Savocchio’s

testimony that he knew almost nothing about prison gangs

despite spending most of his life in prison may have appeared

unbelievable; (3) Savocchio had a number of prior

convictions; and (4) Savocchio admitted that he lied to prison

officials to get transferred to another prison. For these

reasons, defense counsel had good reason to question whether

the jury would have believed Savocchio and thus whether

Savocchio’s testimony would have effectively impeached

Meza. And calling Savocchio to testify entailed the certain,

if unquantifiable, risk that the prosecutor’s cross-examination

would concretely link Ayala to the Mexican Mafia. We have

held that when “the risks associated with calling [certain

witnesses] to testify outweighed the potential benefits . . . it

is reasonable to conclude that counsel wasn’t ineffective in
32 AYALA V. CHAPPELL

failing to call” those witnesses. Zapien v. Martel, 805 F.3d

862, 870 (9th Cir. 2015).

The California Supreme Court denied this claim because

it reasoned that defense counsel believed their “victory

regarding mention of gangs” was intact even after Rafa

recanted. See Ayala, 1 P.3d at 33. We agree that defense’s

“no-gang” plan was probably preserved to some degree, but

we also acknowledge that Rafa’s recantation left the defense

scrambling. Outside of the jury’s presence, defense counsel

sought a continuance because Rafa’s changed testimony

altered “the entire complexion of the case.” But the defense

ultimately elected not to abandon the “no-gang” strategy and

we cannot find statements in the state court record in which

counsel or the court acknowledged that Rafa’s testimony

revealed Ayala’s gang affiliation to the jury.

We owe considerable deference to the CaliforniaSupreme

Court under the standards dictated by AEDPA, see Glebe,

135 S. Ct. at 430, and the California Supreme Court owed

considerable deference to defense counsel underthe standards

dictated by Strickland, see Harrington, 562 U.S. at 105. 

There is room for fairminded jurists to disagree about

whether defense counsels’ decision not to call Savocchio to

testify fell below an objectively reasonable standard of care. 

See id. at 103. More to the point, even if we agreed with the

district court that the California court’s analysis of

Savocchio’s testimony was internally inconsistent and

therefore unreasonable under AEDPA, we also agree with the

district court that, reviewed de novo, this claim does not

entitle Ayala to relief.

On de novo review we consider evidence the parties

elicited at the 2010 evidentiary hearing. See Crittenden,
AYALA V. CHAPPELL 33

804 F.3d at 1010. This evidence substantially undermines

Ayala’s Savocchio-based IAC claim. In 2010, Savocchio

admitted that he did owe a debt to someone affiliated with the

Mexican Mafia around the time of Ayala’s trial. Savocchio

testified at the evidentiary hearing that he embellished the

details of his connection to the Mexican Mafia in the 1980s

to secure the transfer to another prison, but he denied that he

wholly invented his fear of the gang. It is impossible to know

which version of history Savocchio would have told if

defense counsel had called him to testify at trial, but if

Savocchio told the jury that his fear of the Mexican Mafia

was real—which is what he said during the 2010

hearing—the prosecutor surely would have asked whether

this fear motivated him to testify on Ayala’s behalf. Even

after Rafa recanted, this line of questioning would have

damaged Ayala in two ways: (1) the jury would have had

another reason to disbelieve Savocchio; and (2) it would have

crystalized the impression that Ayala was a dangerous gang

member thereby suggesting guilt by association.

Defense counsel also testified at the 2010 hearing. Lead

counsel confirmed that she initially chose not to call

Savocchio because she was unsure whether his testimony

would open the door to damaging gang affiliation evidence:

[T]he judge made it clear that if Mr.

Savocchio testified he was going to allow

impeachment with regard to the EME issue; in

other words, whatever relationship Mr.

Savocchio had or didn’t, whether real or

something he had made up, about the EME,

and that it was going to open the door in a

specific way to the gang issue that we had

been attempting to keep out of the case.
34 AYALA V. CHAPPELL

Lead counsel explained that she reviewed Savocchio’s prison

file with him before the 1988 in limine hearing, and although

she lacked specific recollection of her pre-trial meeting with

Savocchio, she surmised that she was aware of his debt to

someone connected with the Mexican Mafia.

Counsel acknowledged at the 2010 hearing that she would

have pursued a different trial strategy if she had known Rafa

was going to recant. But as we have observed, counsel could

not have known this would happen; indeed, Rafa’s

recantation was a devastating development for the defense

because it came so late in the trial and counsel built their

defense on a “no-gang” strategy. From the outset, the defense

team prepared with the aim of keeping evidence of Ayala’s

gang affiliation from the jury. This meant that the defense

team did not extensively voir dire the jury on their attitudes

about gangs because they did not want to suggest that the

43rd Street murders were gang related. It also meant the

defense did not present expert testimony to explain the

distinction between prison gangs and street gangs, or that

Ayala’s gang was different from those that terrorized

southern California in the mid-1980s. After Rafa recanted,

the defense requested and received a continuance to regroup. 

It considered abandoning its “no-gang” strategy, but it had no

voire dire record from which to predict how the jury would

react and no expert testimony that might have allowed it to

contextualize Ayala’s participation in the Mexican Mafia. 

Worse, shifting strategies would have forced counsel to admit

to the jury that the defense withheld key facts about Ayala’s

gang-involvement. Ayala does not explain how defense

counsel could have completed such a maneuver without

ruining her credibility with the jury, and Ayala’s own

Strickland expert acknowledged that “[t]he credibility of

counsel during all phases of a trial . . . is absolutely crucial.”
AYALA V. CHAPPELL 35

In sum, we agree with the district court that the initial

decision not to present Savocchio’s testimony did not fall

below an objective standard of reasonableness. See Bemore,

788 F.3d at 1163 (“[A] tactical decision may constitute

constitutionally adequate representation even if, in hindsight,

a different defense might have fared better.”). We also agree

with the district court’s analysis of counsel’s decision not to

reopen the defense case after Rafa testified. In light of the

risks and difficulties presented by pivoting away from a “nogang” strategy, the decision not to make such a dramatic

transition did not fall below an objectively reasonable

standard of care. Indeed, a holding to the contrary would be

the type of “Monday morning quarterbacking” Strickland

prohibits. See Strickland, 466 U.S. at 689 (reviewing courts

must “eliminate the distorting effects of hindsight”). Habeas

relief is not warranted on this claim.11

C. Counsel’s decision not to call “other witnesses”

Ayala also argues that trial counsel was ineffective for

failing to impeach: (1) Meza by calling inmate Raul Garcia to

testify that Meza admitted to knowing nothing about the 43rd

Street murders; and (2) Castillo, with evidence that he

solicited Juan Mendez (and possibly Luis “Bobo” Garcia) to

kill victim Zamora in the months before the murders.

11 Ayala also argues that trial counsel was ineffective by failing to

impeach Meza with evidence about his past involvement with gangs and

longstanding relationship with Detective Chacon. The record refutes this

claim. Trial counsel thoroughly impeached Meza. She avoided certain

topics—such as Meza’s former status as a Mexican Mafia member and his

friendly relationship with Detective Chacon, a gang intelligence

officer—because cross-examination on those topics would have permitted

the State to inquire, on re-direct, about Meza’s (and Ayala’s) Mexican

Mafia affiliation.
36 AYALA V. CHAPPELL

Ayala did not name these “other witnesses” in his

Exhaustion Petition or in the declarations he filed with the

California Supreme Court. There, he alleged only that

counsel was ineffective for failing to impeach Meza with

evidence that he “had confessed to numerous witnesses,

including Richard Sovacchio [sic] among many others –

known to Petitioner’s counsel” that he had no idea wither

Petitioner had actually participated in the 43rd street murders. 

Similarly, Ayala’s Exhaustion Petition and the supporting

declarations alleged only that counsel was ineffective for

failing to impeach Castillo with evidence that he “had, prior

to the murders, solicited two different witnesses to kill victim

Zamora.” Under Pinholster, we review these IAC claims as

Ayala presented them to the California Supreme Court. 

563 U.S. at 187 n.11 (“Even if the evidence adduced in the

District Court additionally supports [a claim presented to the

state court], we are precluded from considering it.”). 

Therefore, we do not consider evidence that specific

individuals—including Raul Garcia, Mendez, and Luis

Garcia—were willing to testify on Ayala’s behalf in 1988. 

See id. at 181 (“[R]eview under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the

claim on the merits.”).12

The California Supreme Court did not unreasonably deny

Ayala’s IAC claims as they relate to “other witnesses.” 

Ayala did not allege in the California court that counsel could

12 Because the California Supreme Court summarily denied these IAC

claims, we “determine what arguments or theories . . . could have

supported . . . the state court’s decision; and then . . . ask whether it is

possible fairminded jurists could disagree that those arguments or theories

are inconsistent with the holding in a prior decision of” the Supreme

Court. Harrington, 562 U.S. at 102.
AYALA V. CHAPPELL 37

have presented the testimony of these witnesses without

wrecking their “no-gang” defense plan. To the contrary,

Ayala admitted in his Exhaustion Petition that counsel chose

not to call these witnesses because counsel believed the

witnesses were gang-affiliated. Just as we conclude that

counsel’s decision to insulate the jury from mention of the

Mexican Mafia was “sound trial strategy,” Strickland,

466 U.S. at 689, we conclude that decisions counsel made to

implement this strategy, like declining to call gang-affiliated

witnesses, were likewise reasonably strategic. Id. 

“[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually

unchallengeable” under Strickland. Id. at 690. The 

California Supreme Court’s denial of these claims was not an

unreasonable application of Strickland.

Ayala also argues that defense counsel failed to

independently investigate the gang affiliation of numerous

witnesses before deciding not to call them. He claims

defense counsel entered “into an agreement with the

prosecution, whereby counsel provided to the prosecution the

names of [Ayala’s] prospective witnesses, and would agree

not to call certain witnesses upon receiving anyrepresentation

or threat from the prosecution of possible gang-related

affiliations relating to that witness.”

Ayala correctly argues that “counsel has a duty to make

reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Wiggins

v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland,

466 U.S. at 690–91). But the record before the state court

does not support Ayala’s claim that his lawyers abdicated this

duty. Instead, it shows that counsel located potential

witnesses and sought access to their prison files before
38 AYALA V. CHAPPELL

deciding whether to call them to testify. For example,

counsel reviewed Savocchio’s prison file before he testified

at the in limine hearing. And counsel stated during pretrial

hearings that she subpoenaed “department of corrections’

files” for key witnesses in part to learn whether those

witnesses were gang-affiliated. The trial court ordered the

State to turn over “[a]ll notes or memoranda, handwritten or

typed, by an investigating officer, peace officer, or deputy

district attorney of their conversations with any witnesses

which is relevant to said witness[es]’ credibility,” and one of

the district attorneys confirmed that her office delivered this

discovery, including requested prison files, to the defense

team. Because of these efforts by defense counsel, Ayala’s

case is unlike Thomas v. Chappell, a pre-AEDPA case where

we granted relief because the defense “conducted no

investigation for supporting witnesses or corroborating

evidence outside” the community in which the murder took

place (and in which petitioner lived), despite sworn testimony

that the victims and another suspect came from a different

community. 678 F.3d 1086, 1096 (9th Cir. 2012); see also id.

at 1104 (counsel’s “failure to call [the witness] cannot be

excused as a tactical decision because [counsel] did not have

sufficient information with which to make an informed

decision”). Ayala’s defense team opted against calling some

potential witnesses; it did not overlook them.

To the extent Ayala argues that his lawyers performed

deficiently because they relied to some degree on the

prosecution’s information about potential witnesses, that

argument is also without merit. Defense counsel was

concerned not only with what prospective witnesses’ prison

files showed, but also with Detective Chacon’s knowledge of

witnesses’ affiliations that might surface on crossexamination. Counsel were keenly aware of Detective
AYALA V. CHAPPELL 39

Chacon’s involvement in this prosecution; they knew he was

a gang intelligence officer who had kept tabs on several of the

prospective witnesses for years before Ayala’s trial, and they

suspected that Chacon’s awareness of potential witnesses’

gang affiliations far outstripped the information contained in

their prison files. If the prosecution had information tying a

prospective witness to gangs, from any source, calling the

witness to testify might have opened the door for the State to

impeach the witness with evidence of gang-driven bias. For

this reason, there is ample room for fairminded disagreement

about whether consulting with the prosecution before calling

prospective impeachmentwitnesseswas an “error[]so serious

that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.” Strickland,

466 U.S. at 687; see also Harrington, 562 U.S. at 103

(discussing AEDPA deference). The California court

reasonably rejected Ayala’s failure-to-investigate claim.

But even if we reviewed this claim de novo, Ayala would

not be eligible for relief. Defense counsel confirmed during

the 2010 evidentiary hearing that she purposely chose not to

call many witnesses, including Raul Garcia and Mendez,

because those witnesses were or had been gang affiliated. 

Exhibits Ayala introduced at the 2010 hearing show that

counsel investigated these witnesses to evaluate potential

exposure to harmful gang affiliation evidence. For example,

Ayala submitted defense counsel’s pre-trial notes in which

she described her impressions of Raul Garcia: “Claims he

was approached by Meza to make up a story about the

killings. He knows Ronnie well. My reading between the

lines is that this is possible B.S. and he is very impeachable

re relationship with Ronnie.” Cf. Cannedy v. Adams,

706 F.3d 1148, 1160–61 (9th Cir. 2013) (granting relief when

uncontradicted evidence showed that trial counsel failed to
40 AYALA V. CHAPPELL

interview a key witness). Ayala also introduced notes from

defense counsel’s pretrial interviews with Juan Mendez in

which she wrote that Mendez “ha[d] been reported in his

prison file [as] . . . EME affiliated,” that Mendez knew Ayala

from the prison gang, and that Mendez had done favors for

the gang during his time in prison. These notes show that

trial counsel’s decision not to call “numerous witnesses” was

consistent with her trial strategy. Strickland, 466 U.S. at 689. 

Relief under Strickland is not available.

Finally, Ayala asks us to stay his federal proceedings so

he can seek reconsideration of his IAC claims in the

California Supreme Court. See Gonzalez v. Wong, 667 F.3d

965, 980 (9th Cir. 2011) (staying federal case to give

petitioner the opportunity to present to the state court

evidence first adduced in federal court). In particular, Ayala

seeks the chance to submit in state court evidence he first

presented in the federal proceedings, including evidence that

Juan Mendez, Raul Garcia, and Luis Garcia were willing to

testify on Ayala’s behalf in 1988. But the district court held

an extended evidentiary hearing on Ayala’s IAC claims, and

its lengthy and well-reasoned order concluded that Ayala’s

petition failed even in light of this newly presented evidence. 

See Ayala v. Chappell, No. 01CV0741-BTM (MDD), 2013

WL 1315127 (S.D. Cal. Mar. 28, 2013). We agree with the

district court that the 2010 evidence does not strengthen

Ayala’s IAC claims, and we decline Ayala’s invitation to stay

his federal case.13

13 Ayala additionally argues that counsel rendered deficient performance

by declining to call Jesus Aguilar, Javier Frausto, and Sal Colabella,

whose testimony would have corroborated Juan Mendez’s story that

Castillo previously solicited people to kill one of the victims. Ayala did

not present these names to the state court, although information about
AYALA V. CHAPPELL 41

D. The state court’s fact-finding process

Ayala argues that de novo review of his Strickland claims

is warranted because the state court’s fact-finding process

was deficient. He requested an evidentiary hearing in his

initial state habeas corpus petition, which the California

Supreme Court summarily denied in June 2000, and in his

Exhaustion Petition, which the California Supreme Court

summarily denied in September 2003. Ayala raised his IAC

claims in both state court petitions, and he now argues that it

was unreasonable for the California Supreme Court to resolve

these claims without first granting him an evidentiary

hearing. We disagree.

We have recognized that a state court’s decision may be

based on an “unreasonable determination of the facts,”

28 U.S.C. § 2254(d)(2), if “the [fact-finding] process

employed by the state court [was] defective,” Taylor v.

Maddox, 366 F.3d 992, 999 (9th Cir. 2004); see also Woods,

764 F.3d at 1128. “To find the state court’s [fact-finding]

these witnesses was in his possession when he filed his Exhaustion

Petition. Therefore, under Pinholster we cannot consider the testimony

of these witnesses, 563 U.S. at 181, and a stay is not proper under

Gonzalez, 667 F.3d at 979. Shortly before oral argument in our court,

Ayala filed a declaration from Travis Chelberg, a newly-identified

declarant who participated in a residential drug abuse treatment program

with Meza decades after Ayala’s trial. Chelberg declares Meza admitted

to him that he lied when he testified against the Ayalas. Ayala moves for

remand under Rhines v. Weber, 544 U.S. 269 (2005), so the district court

can review this evidence. See ECF No. 61. The motion is denied. We

decline to use the stay-and-abeyance procedure outlined in Rhines and

ordinarily reserved for mixed habeas petitions to allow Ayala to develop

his claim based on new evidence. The proper method for obtaining relief

is to seek leave to file a second habeas petition. See 28 U.S.C.

§ 2244(b)(3).
42 AYALA V. CHAPPELL

process defective . . . ‘we must more than merely doubt

whether the process operated properly. Rather, we must be

satisfied that any appellate court to whom the defect is

pointed out would be unreasonable in holding that the state

court’s fact-finding process was adequate.’” Hurles,

752 F.3d at 778 (citation omitted). A state court’s denial of

a petitioner’s request for an evidentiary hearing does not

necessarily render its fact-finding procedure defective. 

Woods, 764 F.3d at 1128 (concluding that it “was not

unreasonable for the Washington Supreme Court to deny

Woods’s request for a[n evidentiary] hearing”); see also

Harrington, 562 U.S. at 97 (denying relief on an IAC claim

where the California Supreme Court did not grant petitioner

an evidentiary hearing).

Turning first to Ayala’s Savocchio-based IAC claim, we

have no trouble concluding that the California Supreme

Court’s decision to deny Ayala an evidentiary hearing was

not unreasonable. The record before the California Supreme

Court included a complete transcript of the trial court’s in

limine hearing where defense counsel explained her decision

not to call Savocchio as a witness. The California court

“reasonablyconcluded that the evidence alreadyadduced was

sufficient to resolve” the question of counsel’s performance

on this score. Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th

Cir. 2012).

We come to the same conclusion on Ayala’s IAC claim

based on “other witnesses.” As explained, Ayala alleged in

his Exhaustion Petition that the defense team’s “no-gang”

strategy drove their decision not to call numerous other

impeachment witnesses, and this remains the crux of his IAC

argument in our court. The record before the California

Supreme Court vividly illustrated that the “no-gang” strategy
AYALA V. CHAPPELL 43

was well researched and deliberate, and that decisions

counsel made to carry out the strategy, including decisions

not to call gang-affiliated witnesses, were likewise

reasonable. See Strickland, 466 U.S. at 689–90. The

California Supreme Court did not need an evidentiaryhearing

to resolve this IAC claim. See People v. Duvall, 886 P.2d

1252, 1258–59 (Cal. 1995) (requiring California courts to

assume the truth of a habeas petitioner’s non-conclusory

allegations); Laurie L. Levenson, California Criminal

Procedure § 30:25 (2014) (“The court may also deny the

petition without a hearing if consideration of the written

return and matters of record persuade it that the contentions

of the petition lack merit.”).14

III. Brady relating to Juan Meza

Ayala’s next group of claims arises from Brady v.

Maryland, 373 U.S. 83 (1963). Ayala argues in these claims

that the State failed to disclose impeachment evidence about

its key witness, Juan Meza, who testified at trial that Ayala

enlisted him to plan and participate in the 43rd Street

murders. Ayala argues the State “failed to disclose specific

details of Meza’s long history as a prosecution informant, his

years-long relationship with Chacon as a snitch, the fact that

Meza previously denied having any personal knowledge of

the 43rd Street murders, and the full extent of the

consideration that Meza received for his testimony against

14 Because we conclude that the California Supreme Court reasonably

applied Strickland’s deficient performance prong when it denied Ayala’s

IAC claims, we need not decide whether Ayala established prejudice

under Strickland prong two. See Cannedy, 706 F.3d at 1157 (“If the state

court reasonably concluded that Petitioner failed to establish either prong

of the Strickland test, then we cannot grant relief.” (footnote omitted)).
44 AYALA V. CHAPPELL

Ayala.” The State also allegedly concealed evidence that

Detective Chacon orchestrated Meza’s decision to come

forward to testify nearly two years after the murders. This

issue draws from several certified claims (namely, claims 5,

6, and 8), but Ayala focused his argument in our court on

uncertified claim 76.

Claim 76 arose from Meza’s testimony at the 2010

evidentiaryhearingwherein he discussed benefits he received

in exchange for testifying against Ayala in 1988. Ayala

interpreted this hearing testimony as revealing previously

undisclosed evidence about Meza’s immunity agreement. 

Ayala raised claim 76 in his third amended habeas corpus

petition, asserting that the State failed to disclose the scope of

the immunity Meza received in exchange for his trial

testimony. The district court granted the State’s motion for

summary judgment on claim 76, ruling that the claim was

unexhausted and lacked merit.

Brady is the clearly established law governing the state’s

duty to disclose impeachment evidence favorable to the

defense. 373 U.S. at 87. Brady holds that “the suppression

by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material

either to guilt or to punishment.” Id. “Evidence favorable to

[the] accused” includes evidence that would help a defendant

impeach prosecution witnesses. See Giglio v. United States,

405 U.S. 150, 154–55 (1972). To establish a Brady violation,

a defendant must show: “(1) the evidence at issue is favorable

to the accused, either because it is exculpatory or because it

is impeaching; (2) the evidence was suppressed by the

government, regardless of whether the suppression was

willful or inadvertent; and (3) the evidence is material to the
AYALA V. CHAPPELL 45

guilt or innocence of the defendant.” United States v.

Sedaghaty, 728 F.3d 885, 899 (9th Cir. 2013).

A. Claim 76

Ayala concedes in his opening brief that claim 76 is

unexhausted because it is based on testimony elicited for the

first time in federal district court. See 28 U.S.C.

§ 2254(b)(1)(A); Woods, 764 F.3d at 1129–30. He asks us to

review it on the merits because it is closely connected to

several of his exhausted, certified claims, but he cites no

authority for this proposition and we cannot create any here. 

Ayala alternatively asks us to stay his federal proceedings so

that he may present claim 76 to the California Supreme

Court. He bases this request on our decision in Gonzalez v.

Wong, 667 F.3d 965 (9th Cir. 2011).

In Gonzalez, the State concealed critical impeachment

documents until petitioner’sstate post-conviction proceedings

were complete, a flagrant and continuing Brady violation. Id.

at 976. “Because the suppressed materials substantially

strengthened the petitioner’s Brady claim, we remanded that

portion of the petitioner’s case to the district court, with

instructions to stay the habeas proceedings until the petitioner

had an opportunity to present the new evidence to the

California Supreme Court.” Thompson v. Runnels, 705 F.3d

1089, 1100 (9th Cir. 2013) (discussing Gonzalez). We stayed

Gonzales’s federal case, thereby enabling him to present this

new evidence in state court, because: (1) the evidence first

uncovered in federal court gave rise to a potentially

meritorious claim; and (2) the petitioner diligently pursued

that evidence in the state court. See Gonzalez, 667 F.3d at

979–80.
46 AYALA V. CHAPPELL

Ayala’s case is not analogous to Gonzalez because

Meza’s 2010 hearing testimony did not give rise to a

potentially meritorious Brady claim. The State disclosed

Meza’s written immunity agreement to defense counsel

before Ayala’s trial in 1988, and the agreement was admitted

as a trial exhibit. The agreement showed that Meza testified

against Ayala in exchange for use and derivative use

immunity and a favorable recommendation regarding

resentencing on his February 1987 drug conviction. Ayala

concedes that the State properly disclosed Meza’s written

agreement, but he argues that Meza and the State also had a

broader unwritten immunity agreement that was undisclosed

at trial. According to Ayala, the State verbally guaranteed it

would not prosecute Meza for “anything else [that] came up”

during Meza’s discussions with the district attorneys about

Ayala’s case, including past assaults, stabbings, and

potentially a murder. Ayala also argues that the unwritten

agreement guaranteed Meza’s immediate release from

custody.

The record does not support Ayala’s contention that a

broad unwritten agreement ever existed. Ayala’s lawyer

conceded at oral argument that the only evidence of a

“sidebar” immunity agreement is Meza’s 2010 evidentiary

hearing testimony. That testimony consisted mostly of Meza

responding “yes” to leading questions from Ayala’s lawyer:

Q: And part of the agreement was that you

would be sentenced to four years, but after

you testified you would be released?

A: Mm-hmm.

Q: Is that yes?
AYALA V. CHAPPELL 47

A: Yes.

Q: Do you recall also there was some

considerable conversation about immunity,

that you would be given what is called use

and derivative immunity; is that right?

A: Yes.

Q: Just as you sit here today — first of all, do

you recall that that was part of the deal, too,

was that if you talk to the DA you would be

given use and derivative immunity?

A: Mm-hmm.

Q: Is that yes?

A: Yes.

Q: Your recollection, sir, or your

understanding of use and/or derivative

immunity, what was that? What did that

encompass?

A: I guess if anything else came up I wouldn’t

be charged with it, just in case.

Q: So just in case you were considered, say, a

suspect in the 43rd Street robberies and

murders, you wouldn’t be charged; is that

right?

A: Mm-hmm.
48 AYALA V. CHAPPELL

Q: Yes?

A: Yes.

. . .

Q: So if anything else came up while you

were talking to Dellatore, you wouldn’t be

charged with any of those things either?

A: Yes.

Contrary to Ayala’s claim 76, Meza also testified that, years

before Ayala’s trial, the State declined to prosecute him for

crimes he committed in prison because “they just couldn’t

prove it,” not because of a sweeping, unwritten immunity

deal he received in exchange for testifying against Ayala. 

The record is likewise inconsistent with Ayala’s argument

that the State promised Meza immediate release from

custody: Exhibits introduced at the 2010 hearing establish

that the prosecution requested Meza be resentenced on his

February 1987 drug arrest, not that any reduction was

guaranteed. This Brady claim also fails because Ayala’s trial

lawyers knew Meza was testifying in the hope of receiving a

reduction in his jail time. Because Meza’s 2010 testimony

does not persuade us that the State guaranteed Meza

immunity or benefits beyond that which it disclosed in 1988,

we decline to stay Ayala’s federal case, deny claim 76 on the

merits, and deny as moot Ayala’s request for a COA.

B. Ayala’s certified Brady claims

In his certified Brady claims, Ayala argues: (1) “the

prosecution failed to disclose all material information
AYALA V. CHAPPELL 49

regarding its use of jailhouse snitches with known gang

affiliations, including but not limited to Juan Meza”;

(2) “[t]he prosecution was aware that Juan Meza had a long

term informant relationship with Detective Chacon and that

in the years preceding the trial Meza had received favors

and/or sweetheart deals for a number of criminal offenses,

and that said consideration had been instigated by Detective

Chacon”; and (3) the State concealed evidence that Chacon

and Meza met several times before Meza decided to testify

about his role in planning the 43rd Street murders.

The state court record shows that the government did not

conceal this information about Meza. In fact, in his

Exhaustion Petition, Ayala asserted that defense counsel

knew (and failed to use for impeachment purposes) many

facts about Meza that Ayala now claims the government

suppressed. The Exhaustion Petition averred:

[Defense counsel] were aware that:

A. Juan Meza and Detective Carlos Chacon

knew each other since 1965; . . .

C. Whenever Juan Meza was incarcerated

Detective Chacon would visit him; and

these visits were generally unannounced;

D. As a result of this “relationship” . . .

Detective Chacon had kept a file on Juan

Meza for the ten years preceding the trial;

E. Juan Meza had been a prosecution

informant, who received benefits of
50 AYALA V. CHAPPELL

shortened and/or lenient sentences for his

criminal offenses;

F. Meza . . . had been in the Mexican Mafia,

however he was currently considered a

drop out[; and]

G. [V]ery soon after the April 26, 1985

killings, Detective Chacon had visited Meza,

while incarcerated, a number of times, but that

it was not until February, 1987, after Juan

Meza was due to be sentenced to a term of

four years in the state penitentiary, and after a

visit from Detective Chacon, that Juan Meza

surfaced as a witness in the case.

Either counsel knew about these facts and allegations and

failed to use them, or the State concealed this information

from counsel; Ayala cannot have it both ways.

The trial transcript confirms that counsel knew these facts

and allegations. Meza testified outside the jury’s presence

that he had known Chacon since childhood, and that Chacon

frequently visited him in jail. Meza confirmed that Chacon

visited him in jail in May or June 1985 but he denied that he

and Chacon discussed Meza’s involvement in the 43rd Street

murders at that meeting. Chacon visited Meza again in

February 1987, shortly after Meza was arrested on the

unrelated drug charge, and Meza gave Chacon some

information about the 43rd Street murders. By April 1987,

Meza admitted that he was involved in planning the murders,

and by May of that year, Meza told Chacon that he had

decided to testify against the Ayalas. Defense counsel

questioned Meza about previous “sweetheart” deals he
AYALA V. CHAPPELL 51

received because of his relationship with Chacon, but Meza

repeatedly denied the existence of such deals, and Ayala

points to no evidence that other deals were actually made. 

Because Ayala has not established that the State suppressed

the information that underpins his certified Brady claims, the

state court’s summary denial of them was not unreasonable. 

See Sedaghaty, 728 F.3d at 899 (to establish a Brady

violation, defendant must show that evidence was

“suppressed by the government”).

IV. Brady claims regarding Detective Chacon

Ayala next claims the State violated Brady by concealing

evidence that Detective Carlos Chacon had a longstanding

bias against the Ayala brothers.15 Ayala first presented this

claim to the California Supreme Court in his Exhaustion

Petition, and the California court summarily denied it. The

district court granted the State’s motion for summary

judgment on this claim, concluding that the California

Supreme Court’s application of Brady was reasonable under

28 U.S.C. § 2254(d)(1). We affirm.

In support of the claim that Detective Chacon was biased

against the Ayala brothers, Ayala alleged the following to the

California Supreme Court: (1) Chacon had a long-standing

personal grudge against the Ayalas stemming from his belief

that the Ayalas were involved in the 1977 murder of

Chacon’s close friend, Eduardo Cruz; (2) Chacon previously

accused the Ayalas of “complicity in many murders previous

to the 43rd Street murders”; (3) Chacon was related by

marriage to the Sosa family, whose gang—Nuestra Familia—

was a rival of the Mexican Mafia’s; and (4) the district

 

15 This argument corresponds to claim 5.
52 AYALA V. CHAPPELL

attorneys in charge of Ayala’s case considered removing

Chacon from the investigation. Ayala submitted a declaration

by defense investigator Hart to support these allegations. In

it, investigator Hart attested “on information and belief” that

Chacon was biased against the Ayalas for each of these

reasons.

The state court reasonably rejected this Brady claim

because Ayala presented no evidence to substantiate his

allegation that Detective Chacon harbored bias against him. 

The spare allegations in Ayala’s petition and Hart’s

unexplained “information and belief” did not identify any

evidence the prosecution withheld that might have suggested

bias, nor do they describe how Hart had personal knowledge

of such bias. See Cal. Evid. Code § 702(a) (“[T]he testimony

of a witness concerning a particular matter is inadmissible

unless he has personal knowledge of the matter.”).16 With

nothing more, the California court need not have determined

whether a Brady violation occurred or prejudice resulted. Cf.

Milke v. Ryan, 711 F.3d 998, 1008 (9th Cir. 2013) (granting

relief when “Milke presented the state court with hundreds of

pages of court records from cases where [the officer] had

committed misconduct, either by lying under oath or by

violating suspects’ Miranda and other constitutional rights

during interrogations”). We addressed a similarly sparse

petition in Runningeagle v. Ryan and explained that “to state

a Brady claim, [a petitioner] is required to do more than

‘merely speculate’ about” the withheld evidence. 686 F.3d

16 For the reasons stated in the next section, we also affirm the district

court’s dismissal of claim 5 to the extent Ayala argues that the state

concealed evidence that Chacon intimidated Rafa and Jenifer Mendoza

Lopez (Rafa’s wife). Because Ayala did not establish that the witnesses

were intimidated, we conclude there was nothing to disclose.
AYALA V. CHAPPELL 53

758, 769 (9th Cir. 2012); see also Duvall, 886 P.2d at 1258

(“The petition should both (i) state fully and with particularity

the facts on which relief is sought, as well as (ii) include

copies of reasonably available documentary evidence

supporting the claim, including pertinent portions of trial

transcripts and affidavits or declarations.” (citations

omitted)). Ayala’s failure to identify evidence the State

withheld convinces us that the state court reasonably applied

Brady when it denied this claim.17

V. Witness intimidation

Ayala’s next claim is primarily a due process-based

witness intimidation claim. Ayala argues that Detective

Chacon intimidated and threatened Rafa and his wife, Jenifer,

and that Rafa recanted his testimony in favor of Ayala as a

result of the threats and intimidation. Ayala also asserts that

the State violated Napue v. Illinois, 360 U.S. 264 (1959), by

failing to correct Rafa’s testimony that Detective Chacon did

not threaten him.18

17 Evidence adduced at the 2010 hearing does not change this

conclusion. Cf. Gonzalez, 667 F.3d at 979. In his 2010 testimony,

Chacon denied harboring any bias against the Ayalas. He explained that

he suspected them of the 43rd Street murders and several other murders

based on his study of their actions and whereabouts in his capacity as a

gang intelligence officer. Defense counsel knew of these suspicions

because she subpoenaed Chacon’s notes from the night of the murder. 

The Ayalas also knew that Chacon suspected them of an earlier murder

because Chacon was actively involved in its investigation. In short, the

2010 evidence does not show that the State concealed exculpatory

evidence about Detective Chacon.

18 Ayala draws this issue from claims 4 and 8 (which both relate to

witness intimidation) and claim 12 (which is a general Napue claim).
54 AYALA V. CHAPPELL

As explained, when Ayala initially called Rafa as a

defense witness, Rafa’s testimony implicated Pete Castillo in

the 43rd Street murders and tended to exonerate the Ayalas. 

Shortly after Rafa testified for Ayala, Detective Chacon

visited him in jail, and accused him of lying in court to

benefit Ayala. After some discussion about the risks Rafa

would face from gangs upon his return to prison, Rafa

admitted to Chacon that he lied, and agreed to recant his

testimony. Rafa’s rebuttal testimony exonerated Castillo and

implicated the Ayalas in the 43rd Street murders.19

Webb v. Texas, 409 U.S. 95 (1972) (per curiam), is the

clearly established law governing claims of witness

intimidation by government officials. In Webb, the trial judge

strongly admonished a defense witness about the risks of

perjury before the witness testified. Id. at 95–96. The judge

singled out this witness, telling him:

If you take the witness stand and lie under

oath, the Court will personally see that your

case goes to the grand jury and you will be

indicted for perjury and the liklihood (sic) is

that you would get convicted of perjury and

that it would be stacked onto what you have

already got, so that is the matter you have got

to make up your mind on.

Id. at 96. The witness chose not to testify. Id. The Supreme

Court reversedWebb’s conviction because “the unnecessarily

strong terms used by the judge could well have exerted such

 

19 Ayala raised these witness intimidation and Napue claims before the

California Supreme Court in his Exhaustion Petition, and the court

summarily denied them. The district court likewise denied relief.
AYALA V. CHAPPELL 55

duress on the witness’ mind as to preclude him from making

a free and voluntary choice whether or not to testify.” Id. at

98. Because the judge’s remarks “effectively drove that

witness off the stand,” the judge violated the defendant’s due

process right to present a defense, and reversal of his

conviction was warranted. Id. Under Webb, “[i]t is well

established that ‘substantial government interference with a

defense witness’s free and unhampered choice to testify

amounts to a violation of due process.’” Earp v. Ornoski,

431 F.3d 1158, 1170 (9th Cir. 2005) (quoting United States

v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998)).

The California Supreme Court’s rejection of Ayala’s

witness intimidation claim was not contrary to or an

unreasonable application of Webb. See 28 U.S.C.

§ 2254(d)(1). The California court had before it Rafa’s trial

testimony and Hart’s declaration when it decided this claim. 

Hart declared “that Detective Chacon threatened, coerced,

manipulated and/or intimidated potential and actual

witnesses, including but not limited to” Rafa, and alleged that

Chacon accomplished this coercion in part by threatening to

investigate Rafa’s wife Jenifer for smuggling drugs into

prison. Standing alone (and taken as true), these allegations

could amount to “substantial . . . interference” with Rafa’s

choice to testify. See Earp, 431 F.3d at 1170. But Hart’s

declaration does not provide sources for its conclusions, and

it was directly contradicted by Rafa’s 1988 trial testimony

that Chacon did not threaten him. Rafa denied that Chacon

told him he was on a hit list and testified that he always knew

his life was in danger because of his involvement with gangs. 

He told the jury “[t]he only thing [Chacon] said [was] . . . ‘I

don’t see why you’re helping these people out when you

know’ — ‘they’ — you know, ‘they don’t care about you,’

you know.” Rafa also denied that Chacon threatened Jenifer
56 AYALA V. CHAPPELL

as a way of pressuring him to recant. Rather, he explained

that he originally testified for the defense as a favor, but was

motivated to recant because, despite his promise to testify,

people associated with Ayala tried to engage Jenifer in illegal

activity:

But, you know, after I testified and these

people started calling my wife, you know,

they wanted her — told her, you know, that I

had put him in a spot. They wanted her to go

visit somebody else in prison to take them

drugs and — . . . so I told them — I started

thinking, ‘man, I do these guys all these

favors,’ you know, ‘and they don’t show me

no kind of respect,’ you know.

Defense counsel vigorously cross-examined Rafa about

whether Chacon threatened or intimidated him into recanting

his testimony, but Rafa consistently denied that this was the

case. With nothing to support Hart’s allegations, the

California court did not unreasonably apply Webb when it

rejected Ayala’s witness intimidation claim.20

Nor did the California Supreme Court misapply federal

law when it rejected Ayala’s Napue claim. See Napue,

360 U.S. at 269 (“[A] conviction obtained through use of

false evidence, known to be such by representatives of the

20 Evidence adduced at the 2010 hearing did not strengthen Ayala’s

witness intimidation claim. Both Jenifer and Rafa testified at the hearing

consistent with Rafa’s trial testimony. Rafa testified that Chacon and the

district attorneys “didn’t threaten me or they didn’t pressure me to come

back and testify against Ronnie.” Jenifer likewise denied that Chacon

threatened to investigate her for smuggling drugs.
AYALA V. CHAPPELL 57

State, must fall under the Fourteenth Amendment.”). Ayala

only offers Hart’s declaration to buttress the allegation that

Rafa lied in his recanted testimony, and, as discussed, Rafa’s

testimony refutes this charge. The California Supreme Court

reasonably denied this claim.21

VI. Other alleged trial court errors

Ayala argues that the trial court committed several other

errors that deprived him of certain federal constitutional

rights. We address each alleged error in turn.

A. Refusal to strike juror Cosgove for cause

Ayala argues that the trial court committed constitutional

error when it declined to strike juror Cosgrove for cause.22

According to Ayala, juror Cosgrove was predisposed to vote

for the death penalty and his presence on the jury violated

Ayala’s due process right to a fair and impartial jury. The

California Supreme Court rejected this argument on direct

appeal, see Ayala, 1 P.3d at 24–25, and the district court

denied federal habeas relief.

Morgan v. Illinois, 504 U.S. 719 (1992), is the clearly

established law applicable to this biased-juror claim. Morgan

21 Ayala likewise argues that the State violated Webb, Napue, and Brady

because it failed to disclose “a pattern of intimidation and threats directed

at [potential prosecution witnesses Richard Buchanan and Mario Marin],

in an effort that each testify falsely against Ayala.” This argument fails. 

Ayala did not mention Marin before the state court, and Buchanan refused

to testify. Thus, even if Chacon threatened Buchanan, Ayala cannot

establish prejudice.

 

22 This argument corresponds to claim 47.
58 AYALA V. CHAPPELL

holds that “[a] defendant has a constitutional due process

right to remove for cause a juror who will automatically vote

for the death penalty.” See United States v. Mitchell,

502 F.3d 931, 954 (9th Cir. 2007) (citing Morgan, 504 U.S.

at 719).

The California Supreme Court’s rejection of this claim

was not contrary to or an unreasonable application of Morgan

because juror Cosgrove was not an automatic death penalty

voter. Cosgrove told counsel during voire dire that he “would

probably be 80 percent to 20 percent saying that if [he] felt

that somebody did commit murder, that the death penalty

should be applied,” but he also said that “if there were

mitigating circumstances, [he] would take them into effect

and weigh them.” Habeas relief is not warranted on this

claim. See Mitchell, 502 F.3d at 955 (affirming on plain error

review the district court’s decision not to dismiss for cause a

juror who “indicated that she thought the only punishment for

certain kinds of ‘horrific’ crimes should be death” but later

“qualified that response by indicating ‘well, death or

imprisonment’” and promised to keep an open mind); United

States v. Fulks, 454 F.3d 410, 428 (4th Cir. 2006) (district

court did not abuse its discretion by letting a juror serve

despite his statement that he would vote for the death penalty

in a murder case “say 90 percent of the time . . . unless [the

mitigating circumstances are] something outrageous”).23

 

23 For the same reason, we affirm the district court’s denial of relief on

claim 34, in which Ayala argues that trial counsel was ineffective for

failing to use a peremptory strike on juror Cosgrove. “Establishing

Strickland prejudice in the context of juror selection requires a showing

that, as a result oftrial counsel’s failure to exercise peremptory challenges,

the jury panel contained at least one juror who was biased.” Davis v.

Woodford, 384 F.3d 628, 643 (9th Cir. 2004). Ayala has not established
AYALA V. CHAPPELL 59

B. Exclusion of deceased witness’s statements

Ayala argues that the trial court violated his constitutional

right to present a defense when it excluded under California’s

hearsay rules the exculpatory statements of a deceased

witness, Arthur Castro.24

During trial, Ayala moved to admit statements that Castro

made to defense investigator Bill Papenhausen. The defense

proffered Papenhausen to testify that Castro heard two people

arguing in Spanish with Dominguez about a large sum of

money on the day before the murders, and that Castro later

saw “three males driving away in a large car with blue and

white Mexican plates.” The trial court denied Ayala’s motion

to admit Papenhausen’s testimony under California’s residual

hearsay rule. See Ayala, 1 P.3d at 28–29. The California

Supreme Court affirmed this ruling on direct review, see id.

at 27–30, and the district court denied federal habeas relief.

Chambers v. Mississippi, 410 U.S. 284 (1973), is the

applicable “clearly established Federal law.” See 28 U.S.C.

§ 2254(d)(1). In Chambers, the Supreme Court held that a

state court may not prohibit a defendant from presenting

directly exculpatory evidence when the evidence is essential

to the defendant’s case and bears sufficient indicia of

reliability. See 410 U.S. at 300–01. The facts in Chambers

were extreme: After police officers arrested Leon Chambers

for murder, his friend, Gable McDonald, confessed to three

different people that he, not Chambers, committed the crime. 

that juror Cosgrove was biased, so he cannot satisfy Strickland’s prejudice

prong under AEDPA’s deferential standard.

 

24 This argument corresponds to claim 44.
60 AYALA V. CHAPPELL

Id. at 288–89. The trial court prohibited Chambers from

presenting the testimony of these three witnesses under a

Mississippi common-law evidentiary rule. Id. at 289. 

Without this evidence, the jury convicted Chambers of

murder. Id. at 285. The Supreme Court reversed the

conviction, holding “the exclusion of this critical evidence . . .

denied [Chambers] a trial in accord with traditional and

fundamental standards of due process.” Id. at 302. The Court

rejected Mississippi’s argument that McDonald’s prior

confessions were hearsayand therefore unreliable because the

confessions bore substantial indicia of reliability: they were

against McDonald’s penal interest, corroborated by other

evidence, spontaneous, and McDonald was available for

cross-examination. Id. at 300–01.

Fairminded jurists could disagree about whether the

California Supreme Court’s resolution of this claim was

contrary to or an unreasonable application of Chambers. See

Bemore, 788 F.3d at 1160 (discussing AEDPA’s deferential

standard). Evidence falls within Chambers’s admissibility

rule only when its exclusion “significantly undermine[s]

fundamental elements of the defendant’s defense.” United

States v. Scheffer, 523 U.S. 303, 315 (1998). Here, while

Castro’s account of three Mexican men at the body shop

supported defendant’s theory of the case, it was not directly

exculpatory like the confession in Chambers. See 410 U.S.

at 297 (trial court’s ruling effectively prevented Chambers

“from exploring the circumstances of McDonald’s three prior

oral confessions”); see also Scheffer, 523 U.S. at 316

(observing that “Chambers specifically confined its holding

to the ‘facts and circumstances’ presented in that case”). 

Also, Castro’s statement had fewer indicia of reliability than

the statement in Chambers because Castro told his story to a

defense investigator who was assisting with trial preparation,
AYALA V. CHAPPELL 61

not “spontaneously to a close acquaintance.” Chambers,

410 U.S. at 300. Although Castro did inculpate himself by

admitting to heroin use, this statement was much less

inculpatory than the one at issue in Chambers, where the

declarant admitted to murder. Id. at 300–01. Finally, unlike

the declarant in Chambers, Castro was not available for crossexamination. Id. at 301. The California court reached these

same conclusions in its review of this claim. Ayala, 1 P.3d at

29–30. We cannot say that its decision was unreasonable, so

Ayala is not entitled to habeas relief. Andrews, 798 F.3d at

773 (“When a state court may draw a principled distinction

between the case before it and Supreme Court caselaw,”

federal habeas relief is not available).

C. Prosecutorial misconduct during closing arguments

In his closing arguments, the prosecutor told the jury that

several witnesses, including Meza, Castillo, Rafa, and

Eduardo “Lalo” Sanchez,

25 made inconsistent statements

because they were afraid of Ayala and “those people who

associated with the defendant.” Ayala, 1 P.3d at 40. Ayala

argues that this and other similar statements in the

prosecutor’s closing argument violated his constitutional

rights “because the prosecution improperly attempted to

inject gang issues into the trial.”26 He separately argues that

trial counsel was ineffective for failing to object to the

 

25 Sanchez lived next door to the body shop and was one of the State’s

trial witnesses. To the apparent surprise of the prosecutor, Sanchez

testified that he heard nothing on the night of the murders.

 

26 This argument corresponds to claim 7.
62 AYALA V. CHAPPELL

allegedly improper statements.27 The California Supreme

Court dismissed these arguments on direct review, see Ayala,

1 P.3d at 34–35, 40–41, and the district court denied federal

habeas relief.

Darden v. Wainwright, 477 U.S. 168 (1986), is the

relevant clearly established federal law. In Darden the Court

“explained that a prosecutor’s improper comments will be

held to violate the Constitution only if they ‘so infected the

trial with unfairness as to make the resulting conviction a

denial of due process.’” Parker v. Matthews, 132 S. Ct. 2148,

2153 (2012) (quoting Darden, 447 U.S. at 181). Darden

creates a “general” standard, giving state courts “more

leeway” to apply it. Id. at 2155 (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

The California Supreme Court’s rejection of Ayala’s

misconduct claim was not an unreasonable application of

Darden because the prosecutor’s statements that several

witnesses feared Ayala were reasonably drawn from the

witnesses’ testimony. See Trillo v. Biter, 769 F.3d 995, 1002

(9th Cir. 2014) (prosecutors are entitled to make reasonable

inferences from the facts). Castillo told the jury that he “had

worries, concern for my family. There was just three people

shot, and I was shot and almost killed. . . . There was some

people out there that actually kill people.” Rafa told the jury

that he originally testified for Ayala in part because “I was

afraid that if I, you know, didn’t want to cooperate with them

. . . I might, you know, get killed or something.” Meza

likewise explained that, although he helped plan the 43rd

Street robbery, he did not participate because he feared the

Ayalas would use the opportunity to kill him.

 

27 This argument corresponds to claim 26.
AYALA V. CHAPPELL 63

Also, the prosecutor’s closing argument adhered to the

trial court’s order concerning the admissibility of gang

affiliation evidence. He did not mention gangs, the Mexican

Mafia, or the EME, but instead argued that witnesses were

afraid of “what the defendant stood for” and “those with

whom the defendant associates.” The jury could have

understood these statements to mean that Ayala was a gang

member, but it also could have understood them to mean that

witnesses feared Ayala simply because he had been accused

of triple murder. The prosecutor’s comments about fear and

association were not so prejudicial that they undermined the

fundamental fairness of Ayala’s trial. “Indeed, Darden itself

held that a closing argument considerablymore inflammatory

than the one at issue here did not warrant habeas relief.” 

Parker, 132 S. Ct. at 2155; Darden, 477 U.S. at 180 nn.9–11. 

Habeas relief is not warranted on this claim.

Nor was it unreasonable for the California Supreme Court

to reject Ayala’s related IAC claim. Counsel “was not

constitutionally ineffective for failing to object to the

prosecutorial statements . . . [because t]hose statements were

based on reasonable inferences from the record.” See Trillo,

769 F.3d at 1002; see also Cunningham v. Wong, 704 F.3d

1143, 1159 (9th Cir. 2013) (“[A]bsent egregious

misstatements, the failure to object during closing argument

and opening statement is within the ‘wide range’ of

permissible professional legal conduct.” (quoting United

States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993))).

D. Penalty-phase admission of the John Casas murder

In the penalty phase, the trial court permitted the State to

submit evidence that, nearly ten years before trial, Ayala

murdered an inmate named John Casas while the two were
64 AYALA V. CHAPPELL

incarcerated together.28 Ayala argues this was constitutional

error because the state never charged him with this crime and

“[t]he extensive pre-trial delay in prosecuting Ayala for the

alleged Casas murder led to Ayala’s demonstrable inability to

present exculpatory evidence which would have and should

have exonerated him had the allegations been timely

brought.”

Habeas relief is not warranted on this claim because

Ayala has not shown he suffered prejudice from the

government’s delay in holding him accountable for the Casas

murder. See United States v. Lovasco, 431 U.S. 783, 784,

795–96 (1977) (a due process claim based on “a delay

between the commission of an offense and the initiation of

prosecution” requires defendant to establish prejudice and

fault on the part of the government). Ayala claims he

suffered prejudice because he “lost” an exculpatory witness

during the eight years that passed between the Casas murder

and the penalty phase of his trial. According to Ayala, this

witness would have testified that he saw another inmate with

a knife “about ten minutes before the [Casas] stabbing.” But

this account is not suggestive of Ayala’s innocence,

particularly when set against the State’s two witnesses, both

of whom testified that they saw Ayala stab Casas. Ayala’s

inability to show prejudice from this delay is fatal to his due

process claim. Id.

28 This argument corresponds to claim 39. Ayala presented this

argument to the California Supreme Court on direct review, the California

court rejected it, Ayala, 1 P.3d at 49, and the district court denied federal

habeas relief.
AYALA V. CHAPPELL 65

VII. Cumulative error

Ayala next argues that the cumulative impact of his

lawyers’ deficiencies, the State’s Brady violations, Detective

Chacon’s intimidation of witnesses, and the trial court’s

errors requires reversal of his conviction.29 We have

previously recognized that “[a]lthough individual errors may

not rise to the level of a constitutional violation, a collection

of errors might violate a defendant’s constitutional rights.” 

Woods, 764 F.3d at 1139 (quoting Davis, 384 F.3d at 654). 

Here, we do not agree that Ayala has suffered such prejudice. 

Any errors made by trial counsel, the trial court, or the

government in Ayala’s case were minor and “did not render

[Ayala’s] trial fundamentally unfair.” See Davis, 384 F.3d at

654. Further, if Ayala suffered any injustice at trial, it was

rectified by the district court’s thorough handling of his

federal habeas petition. The district court’s evidentiary

hearing spanned twenty days and thoroughly aired Ayala’s

most meritorious claims (an opportunity most federal habeas

petitioners are denied post-Pinholster). During this hearing,

the court took testimony from former witnesses, counsel, and

investigators on Ayala’s case and admitted dozens of

exhibits. The experienced district judge painstakingly

reviewed Ayala’s evidence, and was convinced that Ayala’s

conviction and sentence were not the product of an unfair

trial. We agree with Judge Moskowitz’s conclusion.

 

29 This argument corresponds to claim 2.
66 AYALA V. CHAPPELL

VIII. Actual innocence

Ayala’s final claim is that he is actually innocent of these

murders.30 The Supreme Court has assumed that a

freestanding innocence claim is cognizable on federal habeas

review, but it has noted that “the threshold showing for such

an assumed right would necessarily be extraordinarily high.” 

Herrera v. Collins, 506 U.S. 390, 417 (1993). Ayala does not

meet this high threshold of proof. Neither the evidence

before the state court nor the evidence adduced at the 2010

evidentiary hearing supports Ayala’s contention that key

witnesses against him lied at the behest of the government. 

Nor does the record support Ayala’s claim that the

prosecution withheld essential evidence about Meza’s

immunity agreement or relationship with Detective Chacon. 

The evidence Ayala introduced in 2010 to support his habeas

petition is much less compelling than that submitted by the

petitioner in Herrera. See id. at 396–98 (denying Herrera’s

actual innocence claim even though several individuals,

including one eyewitness, submitted affidavits claiming that

Herrera’s brother committed the murders for which Herrera

had been convicted). The Supreme Court’s denial of

Herrera’s freestanding innocence claim urges the same result

here, and the California court’s dismissal of this claim was

therefore not unreasonable. See 28 U.S.C. § 2254(d)(1).

30 This argument corresponds to claim 1. Ayala presented this claim in

his Exhaustion Petition, the California Supreme Court summarily denied

it, and the district court denied relief.
AYALA V. CHAPPELL 67

CONCLUSION

For the foregoing reasons, we affirm the district court’s

denial of Ayala’s petition for writ of habeas corpus.

AFFIRMED.