F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R E Y N A L D O M E D R

A N O A Y A L A , Petitioner-Appellant

,

v.

K E V I N C H A P P E L L , W arden, R espondent-Appellee. No. 13-99005

D.C. No. 3:01-cv-00741-B TM-MDD

OPI NI ON

A ppeal from the United States District Court for the Southern District of California B arry Ted Moskowitz , Chief District J udg e, Presiding

Arg ued and Submitted December 10, 2015 San F rancisco, California

F iled J uly 20, 2016

B efore: Alex Koz inski, J ay S. B y bee, and Morg an Christen, Circuit J udg es.

Opinion by J udg e ChristenA Y A L A V

. C H A P P E L L 2

SUMMARY *

Habeas Corpus / Death P enalty

The panel affirmed the district c ourt’s denial of California
state pris o n e r R ey

naldo Medrano A y a la’s 28 U.S.C. § 2254 habeas c orpus petition c h a l leng ing his c onviction a nd death sentence for triple homicide.

Ay ala a rgu ed that h is defense team was constitutionally ineffective because his lawy ers failed to present evidence that would have called into q uestion the credibility of t wo key prosecution witnesses. The panel a g reed with the d istrict court that the California Supreme Court reasonably deferred
to defense counsel’s choices reg ardin g ex clusion of g ang affi l i a t ion evidence. The panel held that defense counsel’s initial decision not to present an inmate’s t e s t i mony to impeach prosecution witness J uan Manuel Mez a did not fall below an objective standard o f reasonableness. The panel also ag reed with the district court’s analy s i s of counsel’s decision not to reopen the defense case a f t e r witness Rafael Mendoz a L o pez ( “Rafa”) recanted his e x onerating testimony

. The panel ex plained that in lig ht o f the risks and difficulties
p resented by pivoting away from a “no-g ang ” strategy , t h e decision not to mak e such a dramatic transition did not fall below an objectively reasonable standard of care. The panel held that the California Supreme Court l i kewise did not unreasonably d eny Ay ala’s ineffectiv e-assistance claims a s they relate to calling “ other witnesses,” whom Ay ala admitted counsel belie v e d were g ang -affiliated. The panel held that

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A Y A L A V

. C H A P P E L L 3

the California Supreme Court reasonably r ej e c ted Ay ala’s claim that counsel failed to independently investig ate the
g ang affiliation of numerous witnesses before deciding not to call them. The panel ex plained that e v e n i f it reviewed this cla i m d e novo, Ay ala would not be elig ible for relief. Ag reeing with the district c ourt that evidence Ay ala f i rst presented in the federal proceeding s does not s t reng then his ineffecti v e -assistance claims, the p anel declined to stay his federal c ase so that he can seek reconsideration of those claims in the California Supreme Court. The panel h eld that it was n ot unreasonable f or the California Supreme Court to resolve his ineffective-assistance claims without f i r s t g r a n t i n g him an evidentiary

hearing

.

The panel denied on the merits an u n c e rt ified a nd

unex h a usted claim under Brady v. Maryland that the state failed to disclose impeachment e v idence about Mez a, a nd denied as moot Ay a la’s request for a c ertificate o f appealability as to that claim. B ecause Ay ala d i d not establish that the state suppressed the information that underpins his certified Brady claims r e l a ting to Mez a, the panel held that the state c ourt’s summary denial of them was not unreasonable. The panel held that the California Supreme Court’s application of Brady , in summarily deny ing Ay ala’s claim that the state c o ncealed evidence that Detective Carlos Chacon had a long standing bias ag ain s t A y ala and his brother, was reasonable.

The panel held that the California Su p r eme Court’s rejection o f Ay ala’s w itness intimidation claim – that Rafa recanted his ex onerating testim o n y as a result of threats a nd intimidation by Detective Chacon – w as not contrary to or an unreasonable application of W ebb v

. Texas

. The panel h eld that the California Supr em e Court d id not misapply federalA Y A L A V

. C H A P P E L L 4

l a w when it rejected Ay ala’s c laim that the state violate d Napue v

. Illinois by failing to correct Rafa’s test i m ony that Detective Chacon did not threaten him.

The panel held that the Cal i f o r nia Supreme Court’s rejection o f Ay ala’s c lai m t h at the trial court committed constitutional error when it refused to strike a juror f or cause

was not contrary to or an unreasonable application of M organ

v. Illinois

. The panel coul d n ot say that the California Supreme Court’s d enial of A y ala’ s c l ai m that the trial court violated hi s c o n s t itutional rig ht to present a defense w hen it

ex c lude d under California hearsay rules the ex culpatory

s tatements o f a d eceased witness was a n unreasona

b l e application of Chambers v. Mississippi

. The panel held that the California Supreme Court’s rejection of Ay ala’s claim o f prosecutorial misconduct d u ring closing arg ument w as not an unreasonable application of Darden v. W ai nwright

, and that
t he r ejection of Ay ala’s related ineffective-assistance c laim was likewise not unreasonable. The p anel held that Ay ala’s inability to show prejudice is fatal to his d ue

- p r o c ess challeng e to the penalty -phase admission of evidence that nearly ten y ears before trial Ay ala murdered a fellow inmate.

T h e p a nel held that Ay ala has not suffered the p rejudi c e that would r ise to the level of a constitutional violation based on cumulative error.

Th e p a nel h eld that Ay ala does not meet the hig h threshold o f proof that would be required to support a freestanding claim, if cog niz a ble on f ederal habeas review, o f actual innocence.A Y A L A V

. C H A P P E L L 5

COUNSEL

D. J ay Ritt (arg

ued), Ritt, T a i

, T h v e dt & Hodg es, Pasadena, California; Michael R. B elter (arg ued), L aw Office s o f M ichael R. B elter, Pasadena, California; for Petition e r

Appellant.

Michael T

. Murphy (arg ued) and Robin Urbanski, Deputy Attorney s General; Holly D. Wilkins, Supervisin g D eputy Attorney G eneral; J u lie L

. Garland, Senior Assistant Attorney General; Gerald A

. Eng ler, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Office of t h e Attorney General, San Dieg o, California; for Respondent-Appellee.

OP INION

CHRI STEN, Circuit J udg e:

Rey naldo Medrano Ay a la appeals f rom the district court’s denial o f his petition for a writ o f habeas corpus u n der 28 U.S.C. § 2254. Ay ala was convicted of triple homicide in 1988, a nd he is currently on d eath row in California. He
arg ues that his trial was f undamen t a l l y unfair, a

nd federal habeas relief is therefore warr a n ted, primarily because his lawy er u nreasonably failed to impeach the prosecution’s key witnesses with e v i d ence that w ould have undermined their credibility

. Ay ala a lso claims that the State concealed evidence in violation of Brady v. Maryland

, 373 U.S. 83 (1963), that a San Diego p o l ice officer threatened a nd i n t imidated witnesses, a nd that the trial court committed

seve r al c onstitutional errors. B ecause we conclude the California Supreme Court’s resolution of Ay ala’s claims was not contrary to clearly

established federal law, we affirm theA Y A L A V

. C H A P P E L L 6

district court’s denial o f the p etition for writ of h abeas
corpus. 1

BACK G ROUND

I. F acts

On April 2 6, 1985, J ose Rositas, Marcos Z amora, a nd Ernesto Doming uez Mendez (“Doming u ez ”) were murdered

ex e c ution- s t y l e in an auto body shop located on 4 3rd Street in San Dieg o, California. 2 People v. Ayala

, 1 P.3d 3, 11–12 (Cal. 2 000). Pedro “Pete” Castillo was shot at the same time, but not fatally

. He claimed to have been an intended fourth victim who g o t away

. The 43rd Street body shop was a hub for drug distribution, and Doming uez

— the owner of the shop—was an active heroin d i s t r i butor who may have h ad connections with h eroin suppliers in Mex i c o

. According to Castillo, the 43rd Street murders were a drug robbery g o ne wrong

.

The murders occurred around 8 p .m. W ithin a few h ours, San Dieg o g ang intellig e nce detective Car l os Chacon urg ed his counterparts in the San Dieg o homicide unit to investig ate brothers Hector and Rey

naldo Ay ala and their associate J u an Manuel Mez a as p o tential suspects. 3 Two day s later, Pete

1 A y ala d id n o t raise a Ba tso n v. Ken tu cky

, 47 6 U.S. 7 9 (1 9 8 6 ), claim

, b u t an o th er d ef

en d an t , A y ala’ s b ro t

h er H ecto r, d id

. Hecto r an d A y ala

w ere tried sep arately

. Hecto r’ s Ba tso n ch allen g e is th e su b j ect of Da vis v. Aya la , 1 3 5 S. Ct. 2 1 8 7 (2 0 1 5 ).

2 W e ref er to th is crim e as th e “ 43 rd Street m u rd ers.”

3 W e ref er to H e c t o r A y ala as “ Hecto r,” an d h is b ro th er, p etitio n er Rey n ald o A y ala, as “ A y ala.”A Y A L A V

. C H A P P E L L 7

Castillo identified Ay ala, Hector, and J o e M o r eno as the perpetrators of the triple homicide. Id. at 14.

Ay ala was arrested in J u ne of 1 9 8 5 and c harg e d with three counts of murder, o ne count of a ttempted murder

, o ne count of robbery

, and three counts of attempted robbery

. See Cal. Penal Code §§ 1 8 7 (murder), 664 (attempt), 211 (robbery ). Hector and J oe Moreno were arrested and charg ed around the same time.

I n F e bruary 1987, San Dieg o police officers arrested J u an Manuel Mez a for drug distribution. Mez a plead e d g uilty to possession o f cocaine s e v e ral weeks after his arrest a nd entered into a plea ag reement that provided h e w o u ld serve four y ears in priso n. Detective Chacon, who knew Mez a from c hildhood, visited Mez a in jail several times during the spring of 1987. Mez a a dmitted to Chacon that he h elped the Ay alas pla n the 4 3rd Street murders, even thoug h he ultimately d id not participate. Mez a met w i th the district attorney s involved in Ay ala’s case in April or May 1987 a nd
ag reed to testify ag ainst A y a la, H ect o r , and Moreno. I n the

summer of 1987
, a d i strict attorney appeared at Mez a’s sentencing on the drug possession charg e. T h e D .A. asked the judg e to sentence Mez a p u r s u an t to Cal. Penal Code § 1170(d) so he could “recall the sentence a n d co mmitment
prev i o u s ly ordered and resentence the defendant” if Mez a testified in court proceeding s relating to the 43rd Street murders. Cal. Penal Code § 1170(d)(1).

A. Gang affiliation evidence

Ay ala and Hector w ere believed to be me m bers of the Mex ican Mafia—or EME—a p rison g ang with an active
street prog ram that operated throug hout southern California,A Y A L A V

. C H A P P E L L 8

but all parties a gr e ed that the 43rd Street murders were not g ang related. Ay ala’ s l a w y e rs f iled a pretrial motion in limine in which t h e y a r g ued that mention of the Mex ican Mafia or A y ala’s g ang affiliation at trial would b e un duly prejudicial and of questionable relevance to the case.

The state trial judg e was initially disinclined to r ule on the motion

. H e ag r eed with the prosecution that it w ould be difficult to rule on the admissibility of g ang af f i l i a t ion evidence before hearing each witness’s t e stimony

. The defense team pursued this pre-trial ruling fo r m o nths, persistently arg uing that, without a ruling

, they would not be able to “strateg i z e [ a n d ] determine what course of action to take with r eg ard to jury selection and cross-ex amination.” The judg e ultimately

relented and ruled as follows:

[ G] ang affiliation has n o t h ing to d o with motive in terms of this particul a r case, so there w ill be no testimony concerning motive dealing with the Mex ic a n Mafia. W e know that that’s not the case.

Gang a f filiation has nothing to do with the identity issue that’s presented, so there w ill be

no Mex ican Mafia testimony concerning g ang affiliation.

. . .

L et me i ndicate this: That with reference to credibility

, the court’s g o ing t o re q uire a 403 hearin g i f, in fact, we’re g oing to have to g et into this, the people see that after c ro ss-A Y A L A V

. C H A P P E L L 9

ex a mi n a tion. We’ll deal with that on e ach witness.

I f, in f act , t h e people perceive a need to deal with the credibility issue, then I ’m g oing to do it at side-bar before it g oes in front of the jury

.

I ’m g oing to further request that the peop l e admonish their w itnesses not t o voluntarily mention any g ang a f

filiation, that e ach witness be admonished o n t h at point.

. . . They will be admonished on direct.

The trial ju d ge a l s o said he would instruct witnesses not to mention g ang s in their cross-ex amination testimony

, bu t “if the question calls for that response, then so be it.” As the trial
prog r essed, the c ourt ruled that e ach witness co u l d m ention “g roup” or “association” if necessary , b u t not “EME” o r “Mex ican Mafia.”

B. The State’s case

Ay ala’s trial beg an in A u gust 1988 and lasted two months. 4 “The p rosecution theoriz ed that the murders resulted from a robbery attempt t h at failed because it was based on th e perpetrators’ incorrect speculation that Doming uez had just returned from Mex ico with a quantity o f narcotics or cash.” Ayala

, 1 P.3d a t 12. The State presented

4 A lth o u g h so m e o f A y ala’ s p re- trial p ro ceed in g s w ere co n so lid ated w i th th o se o f h is b ro th er, th e tw o w ere tried sep arately . A y ala w as tried f irst. Hecto r w as tried seco n d an d w as co n v icted

. Mo ren o ’ s trial to o k p l ace af ter b oth A y ala’ s t r i a l an d Hecto r’ s trial, an d h e w as acq u itted on all

co u n ts.A Y A L A V

. C H A P P E L L 10

minimal phy sical evi d e n c e linking Ay ala to the crimes a nd instead buil t its case around the testimony of Pete Castillo and J uan Manuel Mez a.

Castillo testified that Doming u e z and Z a mora sold heroin from the shop and that he was also involved in the heroin distribution o peration. He described how Ay ala and H ector frequented the s h o p to use and acquire heroin, and told the jury that h e saw Ay ala, H ector, and J oe Moreno outside o f the body shop on the day o f the murd e rs, April 26, 1985. Id. at 13. At dusk, Castillo looked up from his work on a car a nd

saw Hector pointing a p istol at h is head. Id. Hector led C a s t i l lo into the shop w here Doming uez , Z amora, and Rositas

were bound b y d u c t tape. Id. Castillo testified that Ay ala demanded $10,000 from the v ictims, “or someone was g oing
to die.” Id. at 1 4. Castillo v olunteered that he had some money in his truck, and A y ala agr e e d t o lead him there. Castillo u sed this opportunity to escape. He lifted the larg e shop door, slid under it, and let it slam down behind him. A s he ran into the street, someone, likely Ay ala or Moreno, fired shots at him, and Castillo was wounded in the back. Castillo fell onto 43rd Street, w here police officers found h im a nd rushed him to the hospital. I d.

Castillo d id not immediately identify the A y alas or J oe Moreno as the perpetr ators of the crime. Rather, “while in the ambulance on the way to the hospital, [ he] said he did not know the k illers [ but] that one of them was wea r ing a red plaid shirt.” I

d. at 15. The nex t day

at the hospital, Castillo repeated “that one of the killers was w earing a red Pendleton shirt” when he was interviewed by a detective. I d

. B ut the day after that, Castillo identified the Ay alas and J o e Moreno

a s t h e k illers and also picked them out of a p hoto array

. Id

. at 14.A Y A L A V

. C H A P P E L L 11

I n addition to providing an ey ewitness account of t h e crimes, Castillo’s testimony corro b o r ated the prosecution’s
t h e o ry o f the case: He told the jury that H ector inqui r e d about Doming uez ’s wher e a bouts r oug hly a week before the murders when Doming uez was in jail f or minor offenses. Id.
at 1 2

. Pursuant to Doming u ez ’s request, Castillo told H ector that Doming uez was in Mex ico rather than revealing that he was in jail. Id.

J uan Mez a was also an impo rtant witness for the State because h e testified that he helped plan the murders before backing out o n

the day of the crime. Mez a told the jury that he and Hector went to the body s h o p t o acquire drug s more than ten tim es between J anuary and April 1985. He

ex p lained that about three w e e k s before the murders, the Ay ala brothers became ang ry with Doming uez over a d rug transaction, and A y a la proposed robbing and kill i n g Doming uez and some of the people who worked wi t h h i m

. Mez a testified that in the weeks b efore the murder, he and the Ay alas talked about Doming uez ’s trip to Ti j u a n a to buy a larg e amount of drug s, ty ing the vict i ms, and the ty pes o f
g uns they w o u l d u s e to commit the crime. Mez a also described how, about a week before the murders, H ector recruited J oe Moreno to serve as the g etaway driver. Mez a testified that he went along with the Ay alas’ plan but he never intended to p a r t i c i pate in the murders b e cause he f eared the Ay alas would use the crime as an opportunity to kill him. According to Mez a, Hector told him to be ready to be picked
up on April 26 between 5 and 6 p.m., but Mez a av o i ded his home at the appointed time.A Y A L A V

. C H A P P E L L 12

C. The defense

The defense presented e vidence that “Castil lo was in leag ue with the probabl e actual killers: two y oung L atino
men, one of whom was wearing a r ed plaid shirt of the Pendleton b rand o r ty

pe.” Id. a t 1 5

. T h e defense also focused on r aising r easonable doubt b y d iscrediting the State’s primary

witnesses.

Ay ala’s trial co u n s e l o f fered the testimony of Traci Pittman in support of the defe nse’s alternative-assailant theory

. Pittman testified that on the nig h t of the murders she

was at a liquor store a cross 43rd Street and a y oung Mex ican

man wearing a Pendleton-ty p e shirt w alked past her. I d. She thoug ht he was concealing something that could have been a g un. Id. Pittman said the M e x i c a n m an was joined by a second Mex ican-looking man, and t he two disappeared into the complex containing the body shop. Id. Two minutes later, Pittman heard g u n s hots, saw a man—presumably Castillo—running from the body shop, and then h eard several

more shots. Id. At trial, defense coun s el asked Pittman whether Ay ala was one o f the men she saw the nig ht of the murder, and Pittman answered “no.” Pittman’s testimony corroborated Castil l o ’s initial identification of the killer a s

someone (not Hector or Rey naldo Ay a l a ) who was wearing a red, Pendleton-sty

le shirt.

The defense also called Rafael Mendoz a L opez (“Rafa”)

as a witness. Rafa was a long -time friend of D oming uez w ho frequented the body shop to p u rchase drug s. Id. at 15–16. On direct ex a mination, Rafa testified that he went to the body sho p on the day of the murders to g et heroin from Castillo,

a n d he saw several strang ers whom he p erceived to be f r o m Mex ico. R a f

a t estified that he d id not see the Ay alas at theA Y A L A V

. C H A P P E L L 13

shop that day

. Rafa described standing n ex t to Castillo when Castillo opened the trunk of a car and took out two g u ns that

were buried in a pile of d irty clothes. Rafa recalled Castil l o telling him “that h e w as waiting for some people from Mex ico.”

The defense endeavored to w eaken the State’s case b y impeaching its primary witnesses, Castillo and Mez a

. Counsel cross-ex amined Castillo about his r ole in the body shop’s drug distribution business and false statements he made during the preliminary hearing in which he denied any knowledg e of drug -rela t e d activity at the body shop. Id. at 14–15. The defense emphasiz ed that Castillo did not initially identify Ay ala as the killer, but rather said the killer was a strang er “wearing a red Pendleton shirt.” Id. at 15. Counsel impeached Mez a with the fact that he w as t e s t ify ing in the h o p e of g etting his sentence reduced, inconsistencies in h i s story , that it took more than a y ear for him to come forward, meeting s he had with Chacon before deciding to testify , and

a statemen t h e m ade to his parole officer in which he admitted he had a propensity for ly ing

.

D. The State’s rebuttal

Rafa dramatically recanted hi s t estimony in the
prose c ution’s rebuttal. Called back to the witness stand, he told the jury that he invented the story a bout Castil l o taking
g uns from the trunk of a car and commenting abo u t waiting for p e ople “from Mex ico.” He also admitted, contrary to his earlier account, that he did see the Ay alas at the b o d y s hop late in the afternoon on the day of the murders.

W h en asked why he lied on Ay ala’s b ehalf, Rafa testified that he did it because Ay a la asked him to, and because he wasA Y A L A V

. C H A P P E L L 14

afraid that if he r e fused to help the Ay alas, h e “mig ht, y ou know, g et killed or s o mething .” A ccording to Rafa, Ay ala asked him to testify falsely for the defense at a jailhouse visit that occurred shortly after A y a l a ’ s arrest in the summer o f 1985. Rafa ex plained th a t A y a la pressed a piece of paper ag ainst the v isiting room g lass separator. A handwritten n ote

on the paper instru ct e d R a f a to g et in touch with a defense investig ator and tell him “that [ the Ay ala s ] w eren’t [ at the shop] on that date, make it seem like it w as some Mex icans from a cross the b order that Pete [ Castillo] had hired to come and do the hit.” Rafa test i fi ed that the note described the
g uns Rafa should c o n n e c t with Castillo and said: “[ w] hat happened to Chacho [ Doming u ez ] had to happen.”

L ead defense counsel vig orously cross-ex amined Rafa about his flip-flopped testimony

. C o u nsel q uestioned the plausibility of Rafa’s meeting with Ay ala, including h ow Ay ala could write such intricate directions on a piece o f paper small enoug h to avoid detection by prison g uards. Id. a t 16. She also introduced evidence that cast doubt on the credibility of Rafa’s recantation. Id. I n particular, thoug h Rafa testified that a person with the nickname “Rudy Green Ey es ” Y b a rra accompanied him on the visit to see A y a l a in jail, counsel showed that “Rudy Green E y es ” was incarcerated at that time. Id.

Defense counsel also ex plored a meeting Rafa had with Detective Chacon during which, c ounsel believed, Chacon coerced Rafa into recanting

. Chacon visited Raf a s h o rtly after Rafa testified for the defense, when Rafa w as in a holding cell awaiting transport b ack to prison. D u r ing this visit, Chacon accused Rafa of perjuring himself to g et into the
g ood g races of the prison ’ s “ Southern” g roup, with which Ay ala was affiliated. Chacon told Rafa he believed this effortA Y A L A V

. C H A P P E L L 15

failed and that Rafa w o u l d f ace dang er from both the “Southe r n” g roup and a rival “Northern” g roup once he returned to prison. Rafa admitted that Chacon d i scussed protecting h im a g ainst these g roups, and defense co u nsel accused Rafa o f trading h is te s t i m o n y for the relative safety Chacon promised. O n redirect, Rafa confirmed that he feared the “Southern” and “Northern” g roups a n d believed Ay ala had “influence over what other people in this Southern g roup mig ht d o , ” but he denied that Chacon frig htened him into recanting h i s t estimony

. Rafa maintained that he willing ly told Chacon the truth because he was ang ry th a t people affiliated with Ay ala “ show[ ed him] no kind of respect” even after he promised to lie on Ay ala’s behalf.

E. Detective Carlos Chacon

Detective Carlos Chacon testified o nly briefly at trial, but Ay ala arg ues that Chacon play ed a sign i f icant behind-thescenes role in this case. Chacon w as a San D ie go g ang intellig ence officer whose reg ular dut i e s required that he
g ather intellig e nce a

b out prison g angs o perating in southern California, including the Mex ican Mafia. Chacon had pretrial contact with several of the witnesses in Ay ala’s trial.

I n addition to meeting with Rafa just before he ag reed to recant the testimony he g ave on Ay ala’s behalf, Chacon visited J uan Mez a after Mez a ’s F ebruary 1987 d r u g arrest, and the two discussed the 4 3rd S t reet murders. Mez a was a Mex ican Mafia affiliate who spent much of the decade b e t ween 1975 a

nd 1985 in p rison. Chacon was w e l l acquainted with Mez a b e c a u se the two g rew up in the same neig hborhood. Chacon frequently visited Mez a in jail to elicit information about g ang s. Several w eeks after one such visit, Mez a admitted to his involvement in planning the 43rdA Y A L A V

. C H A P P E L L 16

Street murders, and several months af t er that, he ag reed to testify ag ainst the Ay alas.

F. The verdict

After deliberating for less than a week, the jury f ound Ay ala g uilty o f all charg e s

. I d

. a t 11. The trial court sentenced him to death in e arly J anuary 19 8 9, a nd Ay ala appealed.

Ay ala filed a state habeas corpus petition in the California Supreme Court w hile his direct appeal was pending

. The petition raised several claims for r elief and r e q u ested an evidentiary

hearing

. The California Supreme Court decided Ay ala’s direct app e al in J une 2000, affirming Ay ala’s conviction and sentence in a reasoned opinion. See id. a t 52. The California Supreme Court summari ly denied Ay ala’s habeas c orpus petition on the same d ay

. Ay al a’s conviction b e c a m e f inal on March 5, 2001, w hen the United States Supreme Court denied his petition for writ of certiorari. See Ayala v. California , 532 U.S. 908 (2001) (mem.).

II. P rocedural history

Ay ala timely filed a federal habeas corpus petition in the Southern District of California. Shortly thereafter, the district
court stay ed the federal proceeding s so Ay ala c ould return to state court and ex haust several of his claims.

Ay ala f iled his first amended p etition for writ o f h a beas
corpus ( henceforth, “ Ex haustion Petition”) in t h e C alifornia S u preme Court in September 2002. He filed two ex hib i t s with h is Ex haustion Petit i o n : (1) a declaration by defense i n v e stig a tor Eric H art; a

nd (2) a declaration by Strickl a n dA Y A L A V

. C H A P P E L L 17

ex p ert Steven L

. Harmon. He also requested an evidentiary hearing

. Th e C a lifornia Supreme Court summarily denied each of Ay a la’s claims on the merits the follow i n g y ear. “[ S] eperately a

nd indep endently ,” the court found many o f Ay ala’s claims to be procedurally barred as untimely

.

A y a l a then filed a first amended petition for writ o f habeas corpus in federal district court in which he asserted seventy -five claims for relief. B etween F ebruary 2008 a nd J une 2 009, t h e d istrict court issued three orders resolving cross-motions for summary judg ment o n m ost of Ay ala’s clai m s

. The court decided that some of Ay ala’s ineffective assistance of counsel and witness intimidatio n claims were potentially meritorious, a nd it g r anted Ay ala’s request f or an evidentiary

hearing on them. 5

T h e district court’s evidentiary h earing on Ay al a ’s ineffective assistance of c ounsel and wi tness intimidation claims spanned twenty court day s o ver a period o f n ine months in 2010. The district court took testimony f rom about
t wenty witnesses, and the parties introduced nearly 1 2 0

ex h ibits. F ollowing this hearing

, A y ala filed a third amended habeas c orpus petition for the s o l e p urpose of adding a new claim, the seventy

- six th, b a s e d on testimony adduced at the hearing

.

On March 28, 2013, the dist r ict court issued a leng thy

, well-reasoned order g ranting the State’s motion for summary judg ment on A y ala’s remaining ex hausted claims. See A y ala

v. Chappell

, No. 0 1CV0741-B TM (MDD), 2013 W L 131512 7 ( S

. D

. Cal. Mar. 2 8, 2 013). I n a separate order, it
g ranted the State’s motion for summary judg ment, and denied

5 T h e h earin g co v ered claim s 4 , 5 , 8 , 1 2, 1 8 , 1 9 , 2 0 , an d 2 4.A Y A L A V

. C H A P P E L L 18

Ay ala’s r equest f

or a certificate of appealability (COA), on Ay ala’s unex hausted seventy -six th claim. T he court issu e d

a final judg ment and g ranted a COA on twenty -si x c l aims, including six teen o f the seventeen claims raised here. Ay ala
t i m e l y filed a notice of a

ppeal. W e have jurisdiction un d e r 28 U.S.C. § 1291.

LEG AL STANDARDS

W e review de novo the d istrict court’s denial of Ay ala’s habeas corpus petition. Hurles v

. Ryan
, 752 F

. 3 d 7 6 8, 777 (9th Cir. 2014).

The A ntiterrorism and Effective Death Penalty Act o f 1996 (AEDPA) g overns Ay ala’s petit ion because he filed it after 1996. AEDPA substantially limits the power of federal
courts to g r ant habeas relief to state prisoners. See id. Under AEDPA, a federal c o urt may not g rant a p r i s o n er’s petition

on a c laim 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 F e deral law, as determined by the Supreme Court o f the United States; o r

(2) resulted in a decision that was based on an

un re asonable determination o f the facts in lig ht o f the evidence present e d in the State court proceeding

.

28 U.S.C. § 2254(d); see also Glebe v. Frost
, 135 S. Ct. 429, 430 (2014).A Y A L A V

. C H A P P E L L 19

“‘[ C] learly

established F ederal law’ . . . is the g overning leg al p rinci p l e o r principles set forth by the Supreme Court [ in its holding s] at t h e t ime the state court renders its decision.” Lockyer v. Andrade

, 538 U.S. 63, 71–72 (20 0 3). A state court’s decision i s c o ntrary to clearly e stablished federal law “if the state co u rt applies a rule that contradicts the g overning law s et f

o rth in [ the Supreme Court’s] cases”

or “ co n fr o nts a set of facts that are materially indis t i n g uishable f

rom a decision of [ the] Court a nd nevertheless arrives at a result different from [ Supreme Court] precedent.” W

illiams v. Taylor

, 529 U.S. 362, 405–06 (2000). A state court’s decision is a n u n reasonable application of c l early e stablished federal law if it “correctly identifies the g overning leg al rule but applies it unreasonably
to the facts o f a particular prisoner’s case.” Id. at 407–08. A
state court’s factual finding s are unreasonable if “reasonable minds r eviewing the r ecord” could not ag ree with them. Brumfield v. Cain
, 135 S. Ct. 2 269, 2277 (201 5 ) ( a l teration omitted) (quoting W

ood v

. Allen

, 558 U.S. 290, 301 (2010)). I n any case, “ [ f] or relief to be g ranted, a state cour t m e rits ruling must be ‘so lacking in justificat i o n that there was an

error

. . . bey ond any possibility for fairminded disag reement.’” Bemore v. Chappell

, 788 F .3d 1151, 1160 (9th Cir. 2015) (quoting Harrington v. Richter

, 562 U.S. 86, 103 (2011)).

W h en considering whe t her a state c ourt’s decision was unreasonable under § 2254(d)(1), we may consider only “the record that w a s before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster

, 5 63 U.S. 170, 181A Y A L A V

. C H A P P E L L 20

(2011). 6 B ut if we determine “ the petitioner has satisf i ed § 2254(d)” b ased only on the evidence that was before the
state c ourt, “we e v a luate the claim de novo, and we may consider evidence properly presented for the first time in federal c ourt.” Crittend en v. Chappell

, 804 F .3d 998, 1010 ( 9 t h Cir. 2 015) ( quoting Hurles v. Ryan
, 752 F .3d 7 6 8
, 7 7 8 (9th Cir. 2014)).

W e ap p l y A E DPA’s standards to the state court’s last reasoned decision on the meri t s o f a petitioner’s claims. Edwards v. Lama r q ue , 475 F .3d 1121, 1126 (9th Cir. 2 007) (en banc). The California Supr e m e Court decided seven o f
t h e c l a ims at issue h ere in its reasoned decision on direct review. S ee Ayala

, 1 P.3d at 17–42, 48–52. Ay ala raised the remaining claims in his Ex h au s t i on Petition, so the only merits decision on those claims is the California Supreme Court’s September 2003 summary d e n i a l

. See Harrington
, 562 U.S. a t 9 8 (holding that a summary d e n i a l f r om the California Supreme Court is a n “adjudicat[ ion] on the merits” under A EDP A )

. For claims that the California Supreme Court decided on direct appeal, “we apply AEDPA deference
to the state court’s analy sis.” Bemore
, 788 F

. 3d at 1161. F o r claims that the California court addressed only in its summary denial, “ we conduct an independent r eview of the record to ‘determine what arg uments or theori e s

. . . could have supported [ ] the state c o u rt’s decision.’” Id. (quoting Harrington
, 562 U.S. at 102) (alterations in orig inal); see also Cannedy v. Adams

, 706 F .3d 1148, 1157–59 (9th Cir. 2013) (for claims addre ssed b oth in a summary denial and a

6 T h e Su p rem e Co u rt issu ed its d ecisio n in Pin h o lster af ter th e d istrict

co u rt co m p leted th e 2 0 10 ev id en tiary h earin g in A y ala’ s case b u t b ef ore it issu ed its f in al su m m ary j u d g m en t o rd er.A Y A L A V

. C H A P P E L L 21

reasoned opinion, we “look throug h” the summary denial to review the reasoned decision).

D ISCUSSION

I. P rocedural bar

W e fir s t a d dress the State’s threshold arg ument that the procedural bar doctrine prevents us from reaching the merits

on several of Ay ala’s c laims. The procedural ba r doctrine prohibits a federal court from g ranting relief on the merits o f

a state prisoner’s fed e r a l claim when the state court denied the claim based on a

n independent and adequate st a te procedur a l rule. Coleman v. Thompson

, 5 0 1 U.S. 722, 729–30 (1991). The d octrine is implicated where, as here, the
state court’s “ reliance u

pon [ t he state’s] procedural bar rule

was an independent a

nd alternative basis for its denial of the petition.” Loveland v. Hatcher

, 231 F .3d 640, 643 ( 9 t h Cir. 2 0 0 0 )

. Even if the p rocedural bar doctrine otherwise precludes relief on a p risoner’s claim, he or she “may obtain f ederal review of [ that] claim by showing cause for t h e de fault and prejudice f

rom a violation o f federal law.” Martinez v. Ryan , 132 S. Ct. 1309, 1316 (2012).

I n its 2003 summary denial of Ay ala’s Ex haustion Petition, the California Supreme Court ruled that many of the seventy -five claims included in the petiti o n we re “procedurally b arred

. . . as u ntimely ” in addition to deny ing them on the merits. See In r e C lark

, 855 P.2d 729, 737–62 (Cal. 1993). The State arg ued before the district court that the procedural bar doctrine prevented the court from g rantingA Y A L A V

. C H A P P E L L 22

relief on claims the C alifornia court dismissed as untimely

. 7 The district court rejected the Stat e ’ s procedural bar
arg uments after concluding that “the procedural rules in question a

re [ n o t] sufficient to prohibit the consideration o f these claims on the merits.” A f t e r t h e district court issued this ruling and held a

n evidentiary h earing on the m e ri t s o f Ay ala’s petition, the Supreme Court decided W alker v

. Martin
, 562 U.S. 307 (2011). W alker holds that California’s timelines s ru le is an independent a n d adequate state law
g round sufficient to bar federal habeas relief o n u n t imely claims. See id. at 3 10, 315, 317 (citing In re Clark

, 855 P.2d
at 7 38 & n.5). Citing W

alker

, the State r aised the procedural bar doctrine in its final summary judg ment br i e fi ng to the district court.

The district court still d eclined to resolve Ay ala’s federal petition on procedural g rounds. Having concluded the 20-day evidentiary hearing a

nd foreg o ne defense coun s e l ’s offer to brief c ause and p rejudice, the court reasoned t hat “ 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 1 223 (9th Cir. 2002), to reach the merits of Ay ala’s claims. Id. at 1232 (“[ C] ourts are empowered to,

7 T h e Calif

o rn i a co u rt also rej ected m an y claim s as su ccessiv e an d /o r rep etitiv e o f issu es p rev io u sly raised

, b u t b ef o re o u r co u rt, th e State asserts p ro ced u ral b a r s b ased on ly o n tim elin ess g ro u n d s, an d o n ly as to claim s 1
, 4
, 6
, 1 2
, 1 8
, an d 2 0

. An y arg u m en t th at ad d itio n al claim s are p ro ced u rally b arred b ecau se th ey w ere s u ccessiv e, rep etitiv e, o r u n t i m ely is th eref o re w aiv ed

. S

ee S l o vik v. Ya tes , 5 5 6 F.3 d 7 4 7
, 7 5 1 n .4 (9 th Cir. 2 0 0 9 ) (d eclin in g to reach a pro ced u ral b ar arg u m en t th e state raised f o r th e f irst tim e in a petitio n f

o r reh earin g ); Va n g v. Neva d a , 3 29 F.3 d 1 0 6 9
, 1 0 7 3 (9 th Cir. 2 0 0 3 ) (n o tin g th at p ro ced u ral b ar is su b j ect to w aiv er b y th e state).A Y A L A V

. C H A P P E L L 23

and in some cases should, reach the merits of habeas p e titions if they are

. . . clearly not meritorious despite a n asserted procedural bar.”).

The State renews its procedural bar arg ument here, a nd

w e follow the same tack as the district court. T he S t at e i s correct that W

alker precludes relief on several o f A y a la’s claims unless A y ala demonstrates c ause and prejudice for his procedura l d efault, see W alker

, 562 U.S. a t 316, b ut the parties did not develop a record on c ause and prejudice. See,
e.g. , Loveland

, 231 F .3d a t 644–45 (remanding for the district
court to hold an evidentiary hearing on cause and prejudice). Thus, in keeping with F

r anklin ’s admonishment that where claims are “clearly not meritorio u s , ” “appeals courts a re empowered to, and in some cases should, reach the merits o f habeas petitions

. . . despite an asserted procedur al b ar,” 290 F .3d at 1232, we proceed to evaluate A y a la’s c laims on the merits.

II. Inef f ective assistance of

counsel

Ay ala first arg ues that h i s defense team was constitutionally ineffective becaus e h is lawy ers failed to present evidence that would have called int o question the credibili t y of key prosecution witnesses Mez a and Castillo. 8 More specifically

, Ay ala claims trial counsel unreasonably declined to call w itnesses: (1) Richard Savocchio and Raul Garcia, who w ould have testified that Mez a invented his story about the Ay alas’ participation in the 43rd Street murders to obtain a r eduction in his own custodial time, and (2) J o hnny Men d ez a

nd L uis Garcia, w ho w ould have testified that

8 A y ala d raw s th is arg u

m en t f ro m claim s 1 8 , 1 9 , an d 2 0.A Y A L A V

. C H A P P E L L 24

C astillo “had, prior to the murders, solicited [ them] to k i l l victim Z amora.”

“T h e c learly established f ederal law for ineffective assistance of counsel [ “I AC”] claims, as determined b y the S u preme Court, is Strickland v. W a shington

, 466 U.S. 668 (1984) . .

. .” Andrews v. Davis , 798 F .3d 759, 774 (9th Cir. 2015). To p revail on an I A C claim, a defendan t 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 s h o w “that counsel’s represe n t a tion fell below an o bjective standard o f reasonableness” such that “counsel was n ot functioning as the

‘ c o u n s e l ’ gu a r a n t e e d t h e d e f e n d a n t b y t h e S i x t h Amendment.” Id. a t 687–88. I n e valuating a lawy er’s performance, “ a court must indulg e a strong presumption that counsel’s conduct f

alls w ithin the wide rang e of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challeng ed action ‘mig h t be considered sound trial strateg y

. ’” Id. at 689 (q u o ting Michel v. Louisiana
, 350 U.S. 91, 101 (1955)). Strickland ’s “prejudice” prong requires a defendant to show “there is a reasonable probability t h at, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable pr o b a bility is a probability sufficient to undermine c onfidence in the outcome.” Id. at 694.

“Under the AEDPA, the primary issue is w hether the state court adjudication of the Strickland claim[ ] wa s objectively reasonable.” W

oods v. Sinclair

, 7 64 F .3d 1109, 1 13 1 (9th Cir. 2014). “The sta n dards created by Strickland a nd § 2254(d) are both ‘hig hly deferential,’ and when the twoA Y A L A V

. C H A P P E L L 25

apply in tandem, r eview is ‘doubly ’ so.” Harringto n , 562 U.S. at 105 (citations omitted). Thus, even if we would find, on de novo revie w, that petitioner can satisfy both Strickland prong s, “AEDPA requires that a f ederal court find
t h e state court’s contrary conclusions

. . . o bjectiv el y unreasonable before g ranting habeas relief.” W oods

, 764 F .3d at 1132.

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

L o n g before trial started, Ay ala’s defense team decided

on a plan to insulate the jury f r o m h ea ring evidence that Ay ala was a ffiliated with the Mex ican Mafia. This p lan informed defense counsels’ decisions not to present the testimony o f severa l impeachment witnesses whom they believed were affiliated with p rison g ang s. Ay ala n ow arg ues that his lawy ers’ decisions not t o call these w itnesses amounted to deficient performance under Strickland

, and that the California Supreme Court’s d enial of this I AC claim was unreasonable. W e a

naly ze this arg ument by considering first whether the California Supreme Court reasonably a pplied Strickland ’s deferential standard when it upheld the defense’s “no-g ang ” trial plan, a

nd then whether the d e fense team’s decision not to call individual witnesses was consistent with the plan.

The California court did no t ev a luate counsels’ overall “no-g ang ” p lan in a reasoned dec i s i o n, so we “determine what arg umen t s or theories

. . . could h ave supported[ ] the
state court’s decision[ ] and then

. . . ask whether it is possible fairminded jurists could d isag ree that those arg um e n t s o r theories are inconsistent with the holding in a prior decision of” the Supreme Court. H a r r i n g ton , 562 U.S. at 102. W e conclude that the California S u p r eme Court reasonablyA Y A L A V

. C H A P P E L L 26

deferred to defense counsels’ c hoices reg arding ex clusion o f
g ang affiliation evidence.

The record leaves no doubt that counsels’ e ffort to avoid mention of the Mex ican Mafia o r EME at trial was a carefully considered, deliberately undertaken strateg y , the li kes o f which we cannot second-g uess on federal habeas review. I n People v

. Cardenas

, 647 P.2d 569 (Cal. 1 982), the California Supreme Court recog n iz ed that g ang affiliation ev i d e n c e is prejudicial because it invites a jury to f ind a d efendant g uilty by association. Id. a t 572. Ay ala’s lawy ers cited Cardenas ’s
prog e ny in their motion in limine to ex clude g ang affiliation evidence, wh e re they arg ued that mention of the Mex ican Mafia would u nduly prejudice A y a la. 9 They attached to their motion doz e ns of newsp a per articles documenting the prevalence of g ang violence in Southern California, a nd
arg ued that jurors would likely have neg ative impressions o f
g ang s. Counsel dog g edly pursued a ruling o n this motion in limine for nearly a y ear, insisting that without a rul i n g t he defense would be u n able to “strateg iz e [ and] determine what

course of action to take with reg ard t o jury selection a nd

cr o s s

- ex a mination.” I n lig ht of community awareness o f
g ang -re l at e d violence in San Dieg o in the mid-1980s, we cannot say that the defense trial team’s decision to insulate the jury from Ay ala’s g ang affiliation was unreasonable, nor

are we p ersuaded that the California Supre m e Court

9 A y ala arg u es th at h is co u n sel w ere in ef f ectiv e b ecau se th ey o v erlo ok ed k ey Calif o rn i a cases, n a m ely Ca rd en a s an d Peo

p le v. Mu n o z , 2 0 4 Cal. Rp tr. 2 7 1
, 2 7 8 (Cal. Ct. A p p

. 1 9 8 4 ), w

h ich h eld th at th e p ro secu tio n co u ld in q u ire in to a w itn ess’ s g an g m em bersh ip o n ly b y u sin g eu

p h em ism s lik e

“ g ro u ps” o r “ af

f iliatio n .” T h e reco rd d o es n o t sh o w t h a t co u n sel

o v erlo o k ed th is case law

. Co u n s el cited Mu n o z in th e m o tio n in l i m i n e,

w h ich arg u ed (in p art) t h a t n e i t h er th e State n o r its w itn esses sh o u ld b e allo w ed to m en tio n

“ g an g ,” “ Mex ican Maf

ia,” o r “ EME.”A Y A L A V

. C H A P P E L L 27

unreaso n a b l y applied Strickland when it deferred to the defense team’s informed, strateg ic choice. See Harrington
, 562 U.S. at 105.

Ay ala n evertheless arg ues that his lawy ers’ failure to c all witnesses with any connection to a g ang was overly cautious and unduly hindered Ay ala’s defense. W e disag ree. Ay ala’s
arg ument assumes that defense counsel could have controlled the ex tent to which the trial court would have al l o w e d the prosecution to ex plore a witness’s g ang affiliation on crossex a mination if the subject h a d been broached o n d i r ect

ex a mination. B u t the record refutes that assu m p t i o n. The
t r i al court d id not c ateg orically prohibit a ll g ang -related testimony because, as the court made c lear in its ruling on the defense m o t ion in limine, a witness’s g ang a ffiliation could be hig h ly relevant to his or her mo t i ve to lie on Ay ala’s behalf. The court correctly ruled that such testimony mig ht be admitted on cross ex amination if “the p eople perceive a need to deal with the c r edibility issue” or “if [ a] question calls for that r esponse,” a

n d it did not specify whet h er or to what

ex tent a w itness’s mention of g ang s m i gh t o pen the door to

ev i d e nce that could connect A y a la to the Mex ican Mafia. And even thoug h the trial court cautioned each witness not to mention the Mex ican Mafia, defense counsel risked losi n g

c o m m a n d of a witness’s testimony once the witness was on the stand. S

e e Mohamed v

. Jeppesen Dataplan, Inc.
, 614 F .3d 1070, 1089 (9th Cir. 2 0 1 0 ) (en banc) (recog niz ing the inherent unpredictability in prese n t i n g w i t n e s s testimony ). F or these reasons, calling any witness with a g ang connection necessarily entailed some risk of tainting Ay ala in the jury ’s
ey es, and the defense team’s cautious approach to these witnesses was well within the b road “rang e of reasonable
p r o f es sional assistance.” Strickland

, 466 U.S. at 689; see also id. at 690 (“[ S] trateg ic choices made after thoroug hA Y A L A V

. C H A P P E L L 28

investig ation of law and f

acts relevant to plausible options a re virtually unchalleng eable.”).

B. Counsel’s decision not to call Richard Savocchio

Ay ala’s primary I A C c laim is that his lawy e r s were constitutionally in e f

f e c tive because they failed to impeach J uan Mez a w ith the testimony of inmate Richard Savocchio.

Defense counsel subpoenaed Savocchio in anticipation o f his testify ing on Ay ala’s behalf. Savocchio’s p r i s on file showed that he had some sort of problem with the Mex ican Mafia while incarcerated so, consistent with i t s pre-trial ruling

, the t rial court required him to testify at a h earing outside of the jury ’s presence to d etermine the ex tent to which he could be impeached before t h e jury with evidence of g ang ties. Ayala , 1 P.3d at 31.

Savo c c h i o said that he and Mez a were incarcerated tog ether after the 43rd Street murders and that Mez a told him: “these g u y s [ the Ay alas] a re g oing down any

how, and I ’ m g oing to g et something out of it. I t’s all bullshit. I don’t know any thing about it, they are g o ing any w a y s .” Defense

c o u n sel arg ued that “Savocchio understood the meaning o f the conversation to be that Mr. Mez a was cutting a deal for himself to testify in the case about which he knew nothing

. ” The p rosecution and the d efense both asked Savocchio about the g ang notation in his prison file, and Savocchio denied any g ang affiliation. He testified that he was not acquainted with
any Mex ican Mafia members. Savocchio ex plained that the
g ang notation in his f

ile r elated to a lie he told y e a r s ea rlier: I n order to manipulate a transfer out of F olsom State Prison, he falsel y claimed h e o wed a debt to a Mex ican Mafia member incarcerated there.A Y A L A V

. C H A P P E L L 29

After hearing Savocchio’s testimony outside the presence of the jury

, the trial court ruled that if the defe n s e called Savocchio to testify

, t h e p rosecution would be allowed to impeach Savocchio with his admission that he lied to prison officials and that the li e i n v o lved the Mex ican Mafia. The defense ex pressed c oncern that the prosecutor’s crossex a mination about t h e Mex ican Mafia mig ht b ackfire a nd harm Ay ala and so decided ag a inst calling Savocchio.

Ay ala arg ued o n direct a

ppeal that his trial counsel was constitutionally ineffective f or d eclining to call Savocchio, and the California Supreme Court rejected this arg ument in

a reasoned decision. I

d. a t 32–33. Ay ala ra i s e d the same Savocchio-based I A C c laim on federal habeas r eview with

s l ig htly better results. The district c ourt ruled tha t t h e California Supreme Court’s r e s o l ution of this claim was unreasonable under 28 U.S.C. § 2254(d)(1) because the state court’s rationale for deny ing it w as inc o nsistent with its reasoning on a related evidentiary ruling

. 1 0 The district court

10 A y ala also arg u ed o n

d i rect ap p eal th at an y

m en tio n o f th e Mex ican Maf ia w o u ld h av e b een “ su

b stan tially m o re prej u d icial th an pro bativ e,”

an d th at th e trial co u rt e r r e d w h en it ru led th at, if th e d ef en se called Sav o cch io

, th e p ro secu tio n co u l d im p each h im w ith ev id en ce th at h e lied ab o u t h av i n g a p ro blem w ith th e Mex ican Maf ia. Aya la

, 1 P .3 d at 3 2 (citin g Cal. Ev id

. Co d e § 3 5 2). T h e Calif o rn ia Su p rem e C o u r t w as n o t p ersu ad ed

. It reaso n ed

, “ Sav o cch io w o u ld h av e been im peach ed

, if at all,

w ith ev id en ce t

h at h e w as n ot in a priso n g an g .” Id

. T h e Calif o rn ia co u rt “f ail[ed ] to d iscern h o w [Sav o cch io ’ s testim o n y ] w o u ld lin k d ef en da n t

w ith th e Mex ican Maf

ia in th e j u ro rs’ m in d s.” Id

. T h e d istrict co u rt ru led th at th is ratio n a l e w as irreco n cilab le w ith th e state co u rt’ s sim u ltan eo u s d ism issal o f A y ala’ s Sav occh io

- related IA C claim b ecau se, i n d ism issin g th e IA C claim

, th e Calif

o rn i a co u rt im

p l icitly reco g n ized th at Sav o cch io ’ s testim o n y ab o u t th e Mex ican Maf i a co u ld h a v e h arm ed A y ala. T h e d istrict co u rt’ s p o in t is w ell tak en , co mp a re id

. , w ith id

. at 3 3
, b u t w e are

n o t p ersu ad ed th at th e state co u rt’ s d ecisio n w as u n reaso n ab le w ith in th eA Y A L A V

. C H A P P E L L 30

reviewed d e novo Ay al a ’ s claim that his lawy ers were ineffective for failing to c all Savocchio and still denied relief. After thoroug hly ex amining the record, incl u d i n g new evidence Ay

ala adduced at the 2010 evidentiary hearing

, the district court concluded that counsels’ decision r eg ar d ing Savocchio did not prejudi c e Ay ala. Ay ala renews this I AC claim in our c ourt, pressing his strong est theo r y : if nothing else, Ay a la arg ues, the defense should have reopened its case to call Savocchio after Rafa recanted because a t that point the jury must have known Ay ala w as affiliated with a g ang , and there would have been nothing to lose by allowing the jury to hear Savocchio’s anticipated reference to the Mex ican Mafia.

W e ag ree that the cost-benefit analy sis associated with Savocchio’s testimo n y sig nificantly c hang ed a fter Rafa recanted. Recalled to the witness stand by the pro s e c u t o r, Rafa to l d t h e j ury that he h ad seen the Ay ala brothers at the shop on the day of the murders and that h e lied when he said otherwise because Ay ala asked him to. He t e s tified that he knew of (and feared) the “Northern g roup” and the “Southern
g roup” at Donovan S t a t e Prison. W hen asked by the prosecutor whether he “believe[ d ] that the defendant in this

case has any influence o ver w hat othe r p e o ple in this S o uthern g roup mig ht do, as it pertains to y o u , ” R a f a answered “[ y ] es.” He also said he initially testified for Ay ala because h e was afraid that if he did not “cooperate with” the Ay alas h e mig ht “ g et killed or something .” Rafa’s recantation certainly marked a sea chang e in the trial, but we

are not convinced that his testimony a bout the “Southern” a

nd “Northern” g roups inevitably l e d the jury to conclude that

m ean in g o f § 2 2 5 4 ( d ) ( 1 ), b ecau se, as th e Calif o rn ia Su prem e Co u rt

reco g n ized

, a n

y m en tio n o f t

h e Mex i can Maf

i a—ev en o n e seem in g ly

u n related to A y ala—co u ld h av e u n d erm in ed co u n s e l ’ s “ n o

- g an g ” strateg y

.A Y A L A V

. C H A P P E L L 31

Ay ala was personally affiliated with the Mex ican Mafia. The questions about “Northern” and “Southern” g roups occupied

a relatively small part of Rafa’s testimony

, neither Rafa nor counsel used the w ords “g ang ,” “EME,” or “Mex ican Mafia,” and from our review of the record it is not clear that the jury would have equated these p rison g r oups with the street g a ng s that had received notoriety in southern California at the time of the trial. I n this sens e , d e f ense counsel’s “no-g ang ” strateg y may have partially

survived Rafa’s testimony

.

More importantly

, counsel did not make their decision
reg arding Savocchio in a vacuum but instead had to g aug e the likely value to be g ained from Savocchio’s testimony

. Even after Rafa recanted, there were several reasons to think that Savocchio’s testimony mig ht have b een more harmful than helpful: (1) Savocchio did not have a c lose relationship with Mez a before Mez a alleg edly admitt e d t o him that he was testify ing falsely ag a inst Ay a la, and it is unclear w hy Mez a would have chosen to confide in Savocchio; (2) Savocchio’s testimony that he knew almost nothing abou t prison g a ng s despite spending most o f his life in prison may have a ppeared unbelievable; (3) Savocchio had a number of prior convictions; and (4) Savocchio admitted that he lied to prison officials to g et transferred to an o t h e r prison. F or these
reasons, d efense counsel had g ood reason to question whether the jury would have believed Savocchio and thus whether Savocchio’s testimony w ould have effectively impe ached Mez a. And calling Savocchio to testify entailed the certain, if unquantifiable, risk that the prosecutor’s cross-ex amination would concretely link Ay ala to the Mex ican Mafia. W e have held that when “the risks a s s o c i ated with calling [ c ertain witnesses] to testify outweig hed the potential b e nefits

. . . it is reasonable to conclude that counse l wasn’t ineffective inA Y A L A V

. C H A P P E L L 32

failing to call” those witnesses. Zapien v. Martel

, 8 05 F.3d 862, 870 (9th Cir. 2015).

The California Supreme Court denied this claim because it reasoned that defense counsel believed their “vict ory reg arding m e n t i o n of g ang s” w as intact even after Rafa recanted. See Ayala

, 1 P.3d at 33. W e ag ree t h a t d e f e n s e’s “no-g ang ” plan was probably p r es e rved to some deg ree, but

we a lso acknowledg e that Rafa’s r ecantation left the defense scrambling . Outside of the jury ’ s presence, defense counsel
soug h t a continuance because Rafa’s c h ang ed testimony altered “the entire complex ion of the case.” B ut the defense ultimately elected not to a b andon the “no-g ang ” strateg y a nd

we cannot fi nd statements in the state court record in which counsel or the court acknowledg ed that Rafa’s testimony revealed Ay

ala’s g ang affiliation to the jury

.

W e o we considerable deference to the C a l i f o r n i a Supreme Court u nder the standards dictated by AEDP A
, s ee Glebe

, 135 S. Ct. at 430, and the California Supr e me Court owed considerable deference to defense c ounse l u n d e r t he standards dictated by Strickland

, see Harrington
, 562 U.S. at 105. There is r oom for fai r m i n ded jurists to disag ree about whether defense counsels’ d e c i s ion not to call Savocchio to testify fell below an objectively reasonable standard of care. See id. at 103. More to the point, e ven if we ag reed with the district court that the California court’s analy s is o f Savocchio’s testimony was int er nally inconsistent a nd therefore unreasonable under A EDPA, we also ag ree with the district c ourt that, reviewe d de novo, this claim does not entitle Ay ala to relief.

O n d e novo review we c onsider evidence the part i e s elicited a t the 2010 evidentiary hearing

. See Crittenden

,A Y A L A V

. C H A P P E L L 33

804 F .3d at 1010. This evidence substantially undermines Ay ala’s Savocchio-based I AC claim. I n 2 010, Savocchio admitted that he did owe a debt to someone affiliated with the Mex ican Mafia around the time of Ay ala’s trial. Savocchio testified at the evidentiary hearing that he e mbellished t h e details of his connect i o n to the Mex ican Mafia in the 1980s
to secure the transfer to another p rison, but he denied that he wholly invented his fear of the g ang

. I t is impossible to know which v ersion o f history Savocchio w ould have told if defense counsel had called him to testify at tri al, b ut if Savocchio told the jury that his fear of the Me x i c an Mafia

w a s real—which is what he said during the 20 1 0 heari n g

— the prosecutor surely would have asked whether
t h is fear motivated him to testify on Ay ala’s behalf. Ev e n after Rafa recanted, this l i ne o f questioning would have damag ed Ay ala in two way s: (1) the jury would h ave h ad another reason to disbelieve Savocchio; a nd (2) it would have
cry staliz ed the impression that Ay ala was a dang erous g ang member thereby

sug g esting g uilt by association.

Defense counsel also testified at the 2010 hearing

. L ead counsel confir m e d that she initially chose not to c all Savocchio because she w a s u nsure whether his testimony would open the door to damag ing g ang affiliation evidence:

[ T] he judg e made it cl ear that if Mr. S a vocchio testified he was g oing to al l o w impeachment with reg ard to the EME issue; in other words, whatever rel a tionship Mr. Savocchio ha d o r didn’t, whether real o r somethi ng he had made up, about the EME, and that it was g oing to open the door in a specific way to the g a

ng issue t h a t we h ad been attempting to keep out of the case.A Y A L A V

. C H A P P E L L 34

L ead counsel ex plained that she reviewed Savocchio’s prison file w ith him before the 1988 in limine hearing

, and althoug h she lacked specific recollection of her pre-trial meeting with Savocchio, she surmised that she was aware of his d ebt to someone connected with the Mex ican Mafia.

Counsel acknowledg ed at the 2010 hearing that she would have pursued a different trial strateg y if she had known Rafa

was g oing to recant. B ut as we have observed, counsel could
not have known this would happen; indeed, Ra f a ’s recantation was a devastating development for the defense because it came so lat e in the trial and counsel built their defense on a “no-g ang ” strateg y

. F rom the outset, the defense
team p repared with the aim of kee p i n g evidence of Ay ala’s
g ang a f f i l i a t ion from the jury

. T h is meant that the defense
team did not ex tensively voi r d i r e t he jury on their attitudes about g ang s because they did not w an t t o sug g est that the 43rd Street murders were g ang related. I t also meant the defense did not present ex pert testimony t o e x p l a in the distinction between p rison g ang s and s t r eet g ang s, or that Ay ala’s g ang was di f

f e r ent from those that terroriz ed southern California in the mid-19 8 0 s

. After Rafa recanted, the defense r equested and received a continuance to reg roup. I t considered a

bandoning its “no-g a

ng ” strateg y , but it had no voire dire record from which to p redict how the jury would
react a nd no ex pert testimony that mig h t have allowed it to contex tualiz e Ay ala’s participation in the Mex ican Mafia. W o rse, shifting strateg ies would have forced c ounsel to admit
to the jury that the defense withheld key facts about Ay ala’s
g ang -involvement. Ay ala d oes not ex plain how d ef e nse counsel could have completed such a maneuver without ruining her credibility with t h e j u r y , and Ay ala’s o wn Strickland ex pert acknowledg ed that “ [ t] h e credibili ty o f counsel during all phases o f a trial .

. . is absolutely crucial.”A Y A L A V

. C H A P P E L L 35

I n sum, we ag ree wit h t h e d istrict court that the initial decision not to p resent Savocchio’s testimony did not fall below an objective standard of reasonableness. See Bemore
, 788 F .3d at 1163 ( “[ A] tactical d ecision may constitute constitutionally adequate representation even if, in h indsig ht,

a different defense mig ht have fared better.”). W e a lso ag r ee with the district court’s analy sis of counsel’s decision not to reopen the defense c ase after Rafa tes t i f i ed. I n lig h t of the risks and difficulties presented by pivoting away from a “nog ang ” strate gy , the decision not to make such a dramatic
tr ansition did not fall below an objectively reasonable standard of care. I

ndeed, a holding to the contrary would be the t y p e of “Monday morning quarterbacking ” S trickland prohibits. See Strickland

, 4 66 U.S. at 689 (reviewing courts must “ eliminate the distorting e ffects of hindsig ht”). Habeas relief is not warranted on this claim. 1 1

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

Ay ala a lso arg ues that trial counsel was i n effective for failing to impeach: (1) Mez a by calling inmate Raul Garcia to testify that Mez a admitted to knowing nothing about the 43rd Street m u r d e r s; and ( 2) Castillo, with evidence that he solicited J uan Mendez (and possibly L uis “B obo” Garcia) to kill victim Z amora in the months before the murders.

1 1 A y ala also arg u es th at t rial co u n sel w as in ef

f ectiv e b y f

ailin g t o im p each Meza w ith

ev i d en ce ab o u t h is p ast in v o lv em en t w ith g an g s an d lo n g stan d in g relatio n sh ip w ith D etectiv e Ch aco n

. T h e reco rd ref u tes th is claim

. T rial co u n sel th o ro u g h ly im p each ed Meza. S h e a v o i d ed certain
to p ics—su ch as Meza’ s f

o rm er statu s as a Mex ican Maf ia m em b er an d h is f rien d ly relatio n sh ip w i th Detectiv e Ch aco n , a g an g in t ellig en ce

o f f icer—b ecau se cro ss- ex am in atio n o n th o se to p i cs w o u ld h av e p erm i tted th e State to i n q u i r e , o n re- d irect, ab o u t Meza’ s (an d A y ala’ s) Mex ican Maf ia af f iliatio n

.A Y A L A V

. C H A P P E L L 36

Ay ala did not name these “other witnesses ” in his Ex haustion P e t i t i o n or in the declarations he filed w ith the California Supreme Court. There, he alleg ed only that counsel w as ineffective for failing to impeach Mez a with evi d e n ce that he “had c o nfessed to numerous witnesses, including Richard Sovacchio [ sic] among man y o t h ers

– known to Petitioner’s coun s e l ” t h at he had no idea wither Petitioner had actually p articipated in the 43rd street murders. Similarly

, Ay ala’s Ex h austio n Petition and the supporting declarations alleg ed only that counsel was ineff e c tive for failing to impeach Castillo with evidence that he “had, prior
to the murders, solicited two d ifferent witnesses to kill victim Z a mora.” Under Pinholster

, we review these I AC claims as Ay ala pre s e n t e d them to the California Supreme Court. 563 U.S. at 187 n.11 (“Even if the evidence a d d uced in the District Court additionally supports [ a claim presented to the
state c ourt]
, we are precluded fr o m c onsidering it.”). T h e refore, w e do not consider evidence that specific individuals—including R a ul Garcia, Mendez

, and L uis Garcia—were willing to testify on Ay ala ’ s behalf in 1988. See id

. at 181 (“[ R] eview under § 2254(d)(1) is limited to the record that was before the state c o urt that adjudicated the claim on the merits.”). 1 2

The California Supreme Court did not unreasonably deny Ay ala’s I AC claims as t hey relate to “other witnesses.” Ay ala did not alleg e in the California court that counsel could

12 B ecau se th e Calif

o rn ia Su p rem e Co u rt su

m m aril y d e n ied th ese IA C claim s, w e “ d eterm in e w h at arg u m en ts o r th eo ries

. . . co u ld h av e

su p p o rte d

. . . th e state co u rt’ s decisio n ; an d th en

. . . ask w h eth er it is
p o ssib le f airm in ded j u rists co u ld d isag ree th at th ose arg u m en ts o r th eo ries

are in co n sisten t w i t h t h e h o l d in g in a p rio r d ecisio n o f ” th e S u p rem e Co u rt. Ha rrin g to n , 5 6 2 U.S. at 1 0 2

.A Y A L A V

. C H A P P E L L 37

have pr es ented the testimony of these witnesses without wrecking their “no-g a

ng ” defense plan. To t h e contrary , Ay ala a dmitted in his Ex haustion Petition that counsel chose
not to call these witnesses because counsel believ e d t h e witnesses were g ang -affi l i a ted. J u st as we conclude that counsel’s decision to i n s u l ate the jury from mention o f the Mex ican Mafia was “sound trial strateg y , ” Strickland

, 466 U.S. a t 689, we conclude that decisions counsel made to implement this strateg y , like declining to call g ang -affiliated witnesse s , were likewise reasonably strateg ic. Id. “[ S] trateg ic choices made after thoroug h investig ation o f law and f acts relevant to plausible options are v i rtually unchalleng eable” u nder Strickland

. Id. at 690. The California Supreme Court’s denial of these claims was not an unreasonable application of S trickland

. Ay ala also arg ues that defense co u n s e l failed to independently investig a te the g ang affil i a t ion of numerous witnesses before deciding not to call them. He c laims defense counsel entered “into an ag reement w ith the prosecution, whereby counsel p rovided to the prosecution the

names of [ Ay a la’s] prospective witnesses, and w ould ag r ee not to call c ertain witnesses upon receiving any representation

or threat fr o m the prosecution of possible g ang -related affiliations relatingto that witness.”

Ay ala c orrectly arg ues that “c o u n s el has a duty to make reasonable investig ations or t o make a reasonable decision that makes p a r t i cular investig ations unnecessary .” W iggins

v. Smith

, 539 U.S. 510, 5 21 (2003) (quotin g Strickland

, 466 U

. S

. a t 690–91). B u t the record b e fore the state court does not support Ay ala’s claim that his lawy ers abdicated this du t y

. I nstead, it shows that counsel located potential witnesses and soug h t access to their prison files beforeA Y A L A V

. C H A P P E L L 38

decidin g whether to call them to testify

. F or ex ample, counsel r eviewed Savocchio’s prison file before he testified
at the in limine hearing

. And counsel state d during pretrial hearing s that she subpoenaed “ department of correc t i o n s’ files” for k ey witnesses in p a r t to learn whether those witnesses were g ang -affiliated. The trial court ord e r ed the State to turn over “[ a] ll notes or memoranda, handwritten o r ty ped, by a n investig ating officer, peace o f ficer, or deputy district atto rney of their conversations with any w itnesses which is relevant to said witness[ es] ’ credibility ,” and one o f the district attorney s confirmed that her office delivered this discovery

, including requested prison files, to the defense
t e a m. B ecause o f these efforts by defense counsel, Ay ala’s

case is unlike Thomas v. Chappell

, a pre-AEDPA case where

we g ranted relief b eca u s e the defense “conducted no investig ation for supportin g witnesses or corroborating evidence outside” the community i n w hich the murder took place (and in w hich petitioner lived), despite sworn testimony that the v ictims and another suspect ca m e f r o m 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

ex c u sed as a tactical decision because [ counsel] did not have sufficient information with which to m a k e an informed decision”). Ay ala’s defense team opted ag ainst calling some potential witnesses; it did not overlook them.

To the ex tent Ay ala arg ues that h is lawy ers performed deficiently because they reli e d to some deg ree on the prosecution’s information a bout potential witnesses, that
arg ument is also without mer i t

. Defense counsel was concerned not only with wha t prospective witnesses’ prison files showed, but also with Detective Chacon’s knowledg e o f witnesses ’ affiliations that mig ht surface on crossex a mination. Counse l were keenly aware of DetectiveA Y A L A V

. C H A P P E L L 39

Chacon’s involvement in this p rosecution; they knew h e was

a g ang intellig ence officer who had k e p t tabs on several o f the prospective w itnesses for y ears before Ay ala’s trial, and they suspected that Chacon’s a w a reness o f potential witnesses’
g ang affiliations far o utstripped the information contained in their prison files. I f the p rosecution had information ty ing a prospective witness to g ang s, from any source, c all i n g the witness to testify mig ht have opened the door for the State to impeach the witness with evidence of g a ng -driven bias. F o r this reason, there is ample room for fairminded disag reement about whether consulting with the p rosecution before c alling prospective impeachmen

t w i t n e s s e s w as an “ error[ ] so serious that counsel was not functioning as the ‘ counsel’ g u aranteed the defen d a n t by the Six th Amendment.” Strickland

, 466 U.S. at 687; s ee a l s o Harrington
, 562 U.S. a t 103 (discussing A EDPA deference). The California court reasonably

rejected Ay

ala’s failure-to-investig ate claim.

B u t even if we reviewed this claim de novo, Ay ala would
not b e elig ible for relief. Defense counsel confirmed during the 2010 evidentiary

hearing that she purposely chose not to call many witn e s s es , including Raul Garcia and Mendez

, because those witnesses were or had b een ga ng affiliated. Ex hibits Ay a l a i n troduced at the 2010 hearing show that counsel investig ated these witnes ses to evaluate potential

ex p osure to harmful g ang affiliation evidence. F or ex ample, Ay ala submitted defense counsel ’s pre-trial notes in which she described her impressions of Raul Garcia: “ C l a ims he

w a s a p p roached by Mez a to make up a story about the killing s. He kn o w s Ronnie well. My reading between the lines is that thi s is possible B .S. and he is very impeachable

re relationship with Ronnie.” Cf. Cannedy v. Adam s , 706 F

. 3d 1148, 1160–61 (9th Cir. 2013) (g ranting r e lief when uncontradicted evidence showed that trial counsel failed t oA Y A L A V

. C H A P P E L L 40

interview a key w itness). Ay ala also introduced notes from defense counsel’s p re trial interviews with J uan Mendez in which she wrote t h at Mendez “ha[ d] been reported in his prison f ile [ as]

. . . EME affiliated,” that Mendez knew Ay ala from the prison g ang , an d t h a t Mendez had done favors for the g ang during his time in prison. These notes sho w t h at trial counsel’s decision not to call “numerous witnesses” was consistent with her trial strateg y

. Strickland

, 4 66 U.S. at 689. Relief under Strickland is not available.

F inally

, A y ala asks us to stay h i s f ederal proceeding s so he c an seek reconsideration o f h is I AC c l a ims in the California Supreme Court. See Gonzalez v. W ong , 667 F .3d 965, 980 (9t h Cir. 2011) (stay ing federal case to g ive petitioner the opportunity t o p resent to the state court evidence first adduced in federal court). I n particular, Ay ala seeks the chance to submit in state court evidence he first presented in the federal proceeding s, including evidence that J uan Mendez

, Raul Garcia, and L uis Gar c i a w e r e willing to testify on Ay a la’s b ehalf in 1988. B ut the district court held

an ex tended evidentiary

hearing on A y a la’s I AC claims, a nd its leng thy and well-reasoned order co n c luded that Ay ala’s petition failed even in lig ht of this newly presented evidence. See Ayala v. Chappell

, No. 01CV0741-BT M ( M DD), 2013 W L 1 3 1 5 1 27 ( S.D. Cal. Mar. 2 8, 2013). W e ag ree with the district court that the 2010 evidence does no t s t reng then Ay ala’s I AC claims, and we decline A y ala’s invitation to stay his federal case. 1 3

13 A y ala ad d i tio n ally arg u es th at co u n sel ren d ered d ef icien t p erf

o rm an ce b y d eclin in g to call J esu s A g u ilar, J av ier Frau sto , an d Sal Co lab ella,

w h o se testim o n y w o u l d h av e c o r r o b orated J u an Men d ez’ s sto ry th at Castillo p rev io u sly

so licited p eo p le to k ill o n e o f th e v ictim s

. A y ala d id

n o t p resen t th ese n am es to th e state co u rt, alth o u g h in f o rm atio n ab o u tA Y A L A V

. C H A P P E L L 41

D. The state court’s fact-finding process

Ay ala arg ues that de n ovo review of his Strickland c laims is warranted because the sta t e c ourt’s fact-finding process

w a s deficient. He requested an evidentiary hearing i n h i s initial state habeas corpus petition, which the Cali fornia Supreme Court summarily d enied in J u n e 2000, and in his Ex haustion Petition, which the California Supreme Court summarily

denied in September 2003. Ay ala raised his I AC claims in both state court petitions, and he now arg ues that it

was unreasonable for the California Supreme Court to resolve
t h e s e claims without first g ranting h im an e videntia r y hearing

. W e disag ree.

W e have r ecog niz ed tha t a state court’s decision may be based on an “unreasonable d etermination of the f acts,” 28 U.S.C. § 2254(d)(2), if “the [ f a c t-finding ] process employ e d b y the state court [ was] def ective,” Taylor v

. Maddox

, 366 F .3d 9 92, 999 (9th Cir. 2004); see also W oods

, 764 F .3d at 1128. “To find the state cour t ’ s [ f act-finding ]

th ese w itn esses w as in h is p o s sessio n w h en h e f ile d h i s E x h au stio n P etitio n

. T h eref

o re, u n d er Pin h o lster w e can n ot co n sid er t h e testim o n y

o f th ese w itn esses, 5 63 U.S. at 1 8 1, an d a stay is n o t pro p er u n der Go n za lez

, 6 6 7 F.3 d at 9 79

. S h ortly bef ore o r a l a r g u m en t in o u r co u rt, A y ala f iled a d eclaratio n f

ro m T rav i s C h e lb erg , a n ew ly

- id en tif ied d eclaran t w

h o p articip ated in a resid en tial d ru g ab u se treatm en t p ro g ram

w ith Meza d ecad es af

t er A y ala’ s trial. C h elb erg d eclares Meza ad m i tted
to h im th at h e lied w

h en h e t estif

ied ag ain st th e A y alas. A y ala m o v es f or

rem an d u n d er Rh in es v. W eb er , 5 4 4 U.S. 2 69 (2 0 0 5 ), so th e district co u rt

can rev iew th is ev id en ce. See ECF N o

. 6 1

. T h e m o t i o n i s d en ied

. W e d eclin e t o u se th e stay

- an d

- ab ey an ce pro ced u re o u tlin ed in Rh in es an d

o rd in arily reserv ed f

o r m ix ed h ab eas p etitio n s to allo w A y ala to d ev elo p h is claim b ased on n ew ev id en ce. T h e p ro p er m eth o d f o r o b tain i n g relief is to seek leav e to f

ile a s eco n d h ab eas p etiti o n

. S ee 2 8 U.S.C. § 2 2 4 4(b )(3 ).A Y A L A V

. C H A P P E L L 42

process d ef

e c t ive

. . . ‘we must more than merely doubt

w h e t h er the process operated properly

. Rather, we must b e satisfied that any appellate c ourt to whom the defect is pointed out would b e unreaso n a ble in holding that the state court’s fact-finding process was a d equate.’” Hurles

, 752 F .3d at 778 (citation o mitted). A state court’s d en i a l o f

a petitioner’s request for an evidentiary hearing d o e s not

necess a r ily render its fact-finding procedure defective. W oods

, 7 6 4 F.3d at 1128 (concluding that it “was not unreasonable for the W ashing ton Supreme Court to deny W o ods’s request f

o r a[ n evidentiary ] hearing ”); see also Harrington
, 562 U.S. at 97 (deny ing r elief on a n I AC claim where the California Supreme Court did not g rant p etitioner an evidentiary

hearing ).

Turning first to Ay a la’s Savocchio-based I AC claim, we have no trouble c o ncluding that t h e California Supreme Court’s decision to deny A y ala an evi d e n t i ary hearing was not unreasonable. The record before the California Supreme Court included a c o mplete transcript of th e t r ial court’s in limine hearing where defense counsel ex plained her decision
not to call Savocchio as a witness. The C a l i f o rnia court “reasonably concluded that the evidence a lready adduced was sufficient to resolve” the question of counsel’s performance

on this score. Hibbler v. Benedetti

, 693 F .3d 1140, 1147 (9th Cir. 2012).

W e come to the same conclusion on Ay al a’ s I AC claim based on “ot h e r witnesses.” As ex plained, Ay ala alleg ed in his E x haustion Petition that the defense team’s “ n o

- ga ng ” strateg y drove thei r d ecision not to c all numerous other impeachment witnesses, and this remains the crux of his I AC
arg ument in our court. Th e r e cord before the California Supreme Court vividly illustrated that the “no-g ang ” strateg yA Y A L A V

. C H A P P E L L 43

was well r esearched and deliberate, and that decisions counsel made to carry out the strateg y , including decisions
not to call g ang -affiliated witnesses, were l ikewise reasonable. See Strickland

, 466 U.S. at 689–90. The California Supreme Court did n ot need an evidentiary h earing
t o resolve this I A C claim. See People v. Duvall

, 8 8 6 P

. 2 d 1252, 1 258–59 (Cal. 1995) ( r e q uiring California courts to

assume the truth of a h abeas petitioner’s non-conclusory alleg ations); L au ri e L

. L evenson, California Criminal Procedure § 30:25 (2014) ( “The court m a y also deny the petition without a hearing if consideration o f t h e w r itten
return and matters of record persuade it t hat the contentions of the petition lack merit.”). 1 4

III. Brady relating to Juan Meza

Ay ala’s nex t g roup o f c laims arises from B rady v

. Maryland

, 3 73 U.S. 8 3 (1963). A y a la arg ues in these c laims that the State failed to d isclose impeachment evidence about its key witness, J uan Mez a , who testified at tr i a l t hat Ay ala

e n l i sted him to plan and p articipate in the 43rd Str e et murders. Ay ala arg ues the State “ f a i l e d to disclose specific details of Mez a ’s long h istory as a p rosecution informant, his
y ears-long r elationship with Chacon as a snitch, the fact that Mez a previously d e n i e d having any personal knowledg e o f the 43rd Str e e t m u r ders, and the full ex tent of the consideration that Mez a r eceive d for his testimony ag ainst

14 B ecau se w e co n clu d e th at th e Calif o rn i a S u prem e C o ur t r e a s o n ab ly
ap p lied S trickla n d ’ s d ef

icien t p erf

o rm an ce pro n g w

h en it den ied A y ala’ s IA C claim s, w e n eed n o t decid e w h eth er A y ala e s t a b l ish ed p rej u d i ce

u n d er S trickla n d p ro n g tw o

. S ee Ca n n ed

y , 70 6 F .3 d at 1 1 5 7 (“ If t

h e state

co u rt reaso n ab ly co n clu d ed th at P etitio n er f ailed to estab lish eith er p ro n g

o f th e S trickla n d

test, th en w e can n o t g ran t relief

.” (f oo tn o te o m i t ted )).A Y A L A V

. C H A P P E L L 44

Ay ala.” The State a l s o alleg edly concealed evidence that Detecti v e C hacon orchestrated Mez a’s decision to come forward t o testify nearly two y ears after the murders. This issue draws from several certified claims (namely

, claims 5, 6, and 8), but Ay ala f

oc u s e d his arg u ment in o ur court on uncertified claim 76.

Claim 7 6 a rose from Mez a ’ s testimony at the 2010 evidentiary hearing wherein he discussed benefits he received in ex c hang e f

o r testify ing ag ainst Ay ala in 1988. Ay ala interpreted this hearing testimony as revealing p r e viously undisclosed evidence about Mez a’s immunity a greement. Ay ala raised c laim 76 in h is third amended habeas corpus petition, asserting that the State failed to disclose the scope o f the immunity Mez a r e ce ived in ex chang e for his trial testimony

. Th e district court g ranted the State’s motion for
summary judg ment on claim 7 6, ru l i n g that the claim was

unex h a usted and lacked merit.

Brady is the clearly e stablished law g overning the state’s duty to disclose impeachment evidence favorable to the defense. 373 U.S. a t 87. Brady holds that “the suppression by the prosecution of evidence favorable to an accused upon request violates d

u e p roces s wh ere the evidence is material either to g uilt or to punishment.” Id. “Evidence favorable to [ the] accused” includes evidence that w ould help a defendant impeach prosecution witnesses. See Giglio v. United States
, 405 U.S. 150, 154–55 (1972). To e stablish a Brady violation,

a defendant must show: “(1) the evidence at issue is favorable
to the accused, either bec a use it is ex culpatory o r because it is i m p eaching ; (2) the evidence w as suppressed by the
g overnment, reg ardless of whether the suppression was willful o r inadvertent; and (3) the evidence is material to theA Y A L A V

. C H A P P E L L 45

g uilt o r i n n ocence of the defendant.” United States v

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

A. Claim 76

Ay ala concedes in his op e n ing brief that claim 76 is

unex h a usted b ecause it is based on testimony elicited f or the f irst time in f

ederal district court. See 28 U

. S

. C

. § 2254(b)(1)(A); W

oods

, 764 F .3d at 1129–30. He asks us to review it o n the merits because it is c losely co nnected to several of h is ex hausted, certified claims, but he cites no authority for this proposition and we cannot create any here. Ay ala alternatively asks us to stay his f ederal proceeding s so that he may p r esent claim 76 to the California Supreme Court. He bases this r equest on our decision in Gonzalez v

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

I n G onzalez

, the State concealed critical imp e a c hment d o c u m e n t s u n t i l p e t i t i o n e r ’ s s t a

t e p o st-conviction proceeding s

were complete, a flag rant and continuing Brady violation. Id.
at 976. “B ecause the suppressed materials su b s t a n tially streng thened the petitioner’s Brady claim, we remanded that portion o f the petitioner’s c a s e to the district court, with instructions to stay the habeas proceeding s until the p etitioner ha d a n opportunity to present the new evidence to the California Supreme Court.” Thompson v. Runnels

, 705 F .3d 1089, 1100 (9th Cir. 2013) (discussing Gonzalez ). W e stay ed Gonz a les’s federal c a se, thereby enabling him to present this

new e vidence in state court, because: ( 1 ) th e evidence first uncovered in federal court g ave r ise to a poten t i ally meritorious claim; and (2) the petitioner dilige n t ly pursued that evidence in the state court. S ee G on z a l e

z , 667 F .3d at 979–80.A Y A L A V

. C H A P P E L L 46

Ay ala’s case is not analog ous to Gonzalez because Mez a’s 2010 hearing testimony di d not g ive rise to a potentially meritoriou s Brady claim. The State disclosed Me z a ’ s written immunity ag reement to defense counsel before Ay ala’s trial in 1988, and the ag reement was admitted

as a trial ex hibit. The ag reement showed that Mez a testified
ag ainst A y ala in ex chang e for u se and d erivative use immunity and a favorable recommendation reg arding resentencing on his F ebruary 1 9 87 d rug conviction. Ay ala concedes that the State prope r l y disclosed Mez a’s written
ag reeme n t , b u t he arg ues that Mez a and the State also had a broader u nwritten immunity ag reement that was undisclosed at trial. According to Ay ala, the State verbally g uaranteed it would not p r osecute Mez a for “any thing else [ that] came u

p” during Mez a ’s discussions with the district attorney s a b out Ay ala’s case, including pas t assaults, stabbing s, a nd potentially a murder. Ay ala also arg u es that th e u nwritten
ag reement g uaranteed M e z a ’s immediate release from custody

.

The record does not s upport Ay a la’s contention that a br o a d u nwritten ag reement e ver ex isted. Ay ala’s lawy er conceded at oral a

r g ument that the on l y e v i dence of a “sidebar” immunity ag reement is Mez a’s 2 0 10 evidentiary hearing testimony

. That testimony c onsisted mostly of Mez a responding “ y es” to leading q ues t i o n s from Ay ala’s lawy er:

Q: And p art of th e a g reement was that y ou would b e s e n tenced to four y ears, but a fter
y ou testified y ou would be released?

A: Mm-hmm.

Q: I s that y es?A Y A L A V

. C H A P P E L L 47

A: Yes.

Q: Do y ou r ecall also there was some considerable conv e rsation about immunity

, tha t y ou would be g iven what is called use and derivative immunity ; is that rig ht?

A: Yes.

Q: J ust as y o u sit here today — first of all, do
y ou recall that that was part of th e deal, too,

was that if y ou talk to the DA y ou would be
g iven use and derivative immunity ?

A: Mm-hmm.

Q: I s that y es?

A: Yes.

Q: Y our recolle c tion, sir, or y our understanding of u se and/or derivative immunity

, what was that? What did that encompass?

A: I g uess if any

thing else came up I wouldn’t be charg ed with it, just in case.

Q: So just in c ase y ou were considered, say , a suspect in t h e 4 3rd Street robberies a nd murder s , y o u wouldn’t be charg ed; is that rig ht?

A: Mm-hmm.A Y A L A V

. C H A P P E L L 48

Q: Yes?

A: Yes.

. . .
Q: So if any

thing else came up while y ou

were talking to D ellatore, y ou wouldn’t be charg ed with any of those thing s either?

A: Yes.

Contrary to Ay ala’s claim 76, Mez a also testified that, y ears before Ay ala’s trial, the State declined to prosecute him for crimes he committed in prison beca u s e “ they just couldn’t
prove it,” not because of a sw e e ping

, unwritten immunity deal he r eceived in ex chang e for testify i n g a g ainst Ay ala. The record is likewise inconsistent with Ay ala’s arg ument that the State promised Mez a immediate release from custody : Ex hibits introduced at the 2 0 1 0 hearing establish that the p rosecution requested Mez a be r e s e n t e nced on his F ebruary 1 987 drug arrest, n ot that any reduction was g uaranteed. This Brady claim also fails because Ay a la’s trial lawy ers knew Mez a was testify ing in the hope of receiving a reduction in h is jail time. B eca use Mez a’s 2010 testimony does not per s u a de us that the State g uaranteed Mez a immunity or benefits bey ond that which it disclosed in 1988,

we decline to stay A y ala’s federal case, deny claim 76 on the merits, and deny

as moot Ay ala’s request for a COA.

B. Ayala’s certified B rady claims

I n his certified Brad

y claims, Ay a la arg ues: (1) “the prosecution failed to disclose a ll material informationA Y A L A V

. C H A P P E L L 49

reg arding its use of jailhouse snitches with known g ang affiliations, including b ut not limited to J uan Mez a”; (2) “[ t] he prosecution was aware that J uan Mez a h a d a l ong term informant relationship with Detective Chacon and t h at in the y ears preceding t h e t r ial Mez a h ad received favors and/or sweetheart deals for a number of criminal off e n s es, and that said consideration had been instig ated by Detective Chacon”; and (3) the State c oncealed evidence that Chacon and Mez a met several times b e f o r e Mez a decided to testify about his role in planning the 43rd Street murders.

The state court record shows that the g overnment did not

c onceal this information about Mez a. I n f act, in his Ex haustion Petition, Ay a l a asserted that d efense counsel knew (and failed to u s e for impeachment purposes) many facts about Mez a that Ay ala now claims the g overnment suppressed. The Ex haustion Petition averred:

[ Defense counsel] were aware that:

A. J u a n Mez a and Detective Carlos Chacon knew each other since 1965; . . .

C. W h enever J ua n Mez a was incarcerated Detective Chacon would v i sit h im; a nd these visits were g e nerally unannounced;

D. As a r esult of this “relationship”

. . . Detecti v e Chacon had kept a file on J u an Mez a for the ten y ears preceding the trial;

E. J uan Mez a had b een a prosecution informant, who r eceived ben e f its o fA Y A L A V

. C H A P P E L L 50

shortened and/or lenient sentences f or his criminal offenses;

F

. Mez a

. . . h ad been in the Mex ican Mafia, however he was c urrently considered a drop out[ ; and]

G. [ V] ery s oon after the April 26, 1985 killing s, Detective Chacon h a d visited Mez a , while incarcerated, a number of times, but that i t w as not until F ebruary

, 1987, after J u an Mez a was due to be sentenced to a t e rm o f four y ears in the state p e n itentiary

, and after a vi s i t from Detective Chacon, that J uan Mez a surfaced as a witness in the case.

Either counsel knew about these fact s a nd alleg a tions a nd failed to use them, or the State concealed th i s information from counsel; Ay ala cannot have it both way s.

The trial transcript confirms that counsel knew these facts and alleg ations. Mez a testified outside the jury ’s presence that he had known Chacon since childhood, and that Chacon frequently visited him in jail. Mez a confirmed that Chacon visited h im in jail in May or J une 1 985 but he denied that he and Chacon d iscussed Mez a’s involvement in the 43rd Street murders a t that meeting

. Chacon visited Mez a ag a i n in F ebruary 1987, shortly after Mez a w as arrested on the unrelated drug charg e , a n d Mez a g ave Chacon some information about the 4 3rd S t re e t murders. B y April 1987, Mez a admitted that he w as involved in planning the murders, and by May o f t h a t y ear, Mez a told Chacon that he h ad de ci d e d to testify ag a inst the Ay alas. Defense counsel questioned Mez a about previous “ sweetheart” deals heA Y A L A V

. C H A P P E L L 51

r eceived because of his relationship with Chacon, but Mez a repeatedly denied the ex istence of such deal s, and Ay ala points to no evidence that o ther deals were actually ma de. B ecause Ay ala has not establ i s hed that the State suppressed the information that underpins his certified Brady claims, the
state court’s summary denial o f them was n ot unreaso n able. See S e daghaty

, 728 F .3d at 899 (to e s t ab l ish a Brady violat i o n, defendant must show that evidence was “suppressed by

the g overnment”).

IV. Brady claim s regarding Detective Chacon

Ay ala nex t claims the State violated Brady by concealing evidence that Detective Carlos Chacon had a long standing bias ag ains t t he Ay ala brothers. 1 5 A y ala first presented this claim to the California Supreme Court in his Ex haustion P et i t ion, and the California court summarily denied it. T h e district court g ranted the State’s motion for summary judg ment on this claim, concluding that the Cal i f o r nia Supreme Court’s application of Brady was reasonable under 28 U.S.C. § 2254(d)(1). W e affirm.

I n support of the claim that Detective Chacon was biased
ag ainst the A y ala brothers, Ay ala alleg ed the following to the C a l ifornia Supreme Court: (1) Chacon had a long -standing personal g rudg e ag ainst the Ay alas stemming from his belief that the Ay alas were involved in the 1977 murder o f Chacon’s close friend, Eduardo Cruz ; (2) Chacon previously accused the Ay alas of “complicity in many murders previous
to the 4 3rd Street murders”; (3) Chacon was related b y marriag e to the Sosa f

a mily

, whose g a

ng

— Nuestra F amilia—

was a r ival of the Mex i c a n Mafia’s; and (4) the district

15 T h is arg u m en t co rresp o n ds to claim 5

.A Y A L A V

. C H A P P E L L 52

attorne y s i n charg e of Ay ala’s case considered removing Chacon f rom the investig a tion. Ay ala submitted a declaration by defense investig ator Hart to support these alleg a tions. I n it, investig ator Hart attested “on information and b elief” that Cha c o n w a s biased ag ainst the Ay alas for each of these

reasons.

The state court reasonably rejected this Brady claim because Ay ala presented no evidence to substant i at e his alleg ation t hat Detective Chacon harbored bias ag a inst him. The spare alleg ations in Ay ala’s petition and Hart’s

unex p lained “information and be l ief” d id not identify any evidence the p rosecution withheld that mig ht have sug g ested bias, nor d o they describe how Hart h ad personal knowledg e of such bias. See Cal. Evid. Code § 7 02(a) (“[ T] he testimony of a w itness c oncerning a particular matter is inad m i s s ible unless he has personal knowledg e of the matter.”). 1 6 W i t h nothing more, the California court need n ot have determined whether a Brady violation occurred o r prejudice resulted. Cf. Milke v. Ryan
, 711 F .3d 998, 1008 (9th Cir. 2013) (g ranting relief w hen “Milke presented the state court with hundreds o f
pag es o f court records f

rom cases where [ t h e officer] h ad committed misconduct, e i t her by ly ing under oath or b y violating suspects’ Miranda a n d other constitutional rig hts during interrog ations”). W e addressed a sim i l a r ly sparse petition in Runningeagle v. Ryan and ex plained that “to state

a Brady claim, [ a petitioner] is required to d o m o r e than ‘merely speculate’ about” the w ithheld evidence. 686 F .3d

1 6 F o r t h e reaso n s stated in th e n ex t sectio n , w e also af f irm th e d istrict

co u rt’ s dism issal o f claim 5 to th e e x t en t A y ala arg u es t h at th e state

c o n c e a led ev i d en ce th at C h aco n in tim id ated Raf a an d J en if

er Men do za L o pez (Raf

a’ s w i f e). B ecau se A y ala d id n o t estab lish th at th e w i tn esses

w ere in t im id ated , w e co n clu d e th ere w as n o th in g to d isclo se.A Y A L A V

. C H A P P E L L 53

758, 769 ( 9th Cir. 2012); see a lso Du v a l l

, 8 8 6 P.2d at 1258 (“The petition should both (i) state fully and with particularity the fac t s o n which relief is soug h t, a s well as (ii) include copies of reasonably available d ocumentary evidence supporting the claim, inc l u d i n g pertinent portions of trial transcripts and affidavits or de c larations.” (citations omitted)). A y ala’s failure to identify evidence th e S t a te withheld c onvinces us that the state c ourt reasonably a pplied Brady when it denied this claim. 1 7

V. Witness intim idation

Ay ala’s nex t c laim is primarily a due process-b ased witness intimidation cla im. Ay ala arg ues that Detective Chacon intimidated and threatened Rafa a nd his wife, J e nifer,

a nd that Rafa recanted h is testimony in favor of Ay a l a a s a result of the threats and intimidation. Ay ala also asserts that the State v iolated Napue v. Illinois , 360 U.S. 264 (1959), by failing to correct Rafa’s testimony that Detective Chacon did not threaten him. 1 8

17 Ev id en ce ad d u ced at th e 2 0 1 0 h earin g d o es n ot ch an g e th is

co n clu sio n

. Cf. Go n z a l ez , 6 6 7 F.3 d at 9 7 9

. I n h i s 2 0 1 0 t estim on y , Ch aco n d en ied h arb o rin g an y b i as ag ain st th e A y alas. He ex p lain ed th at h e su sp ected th em o f th e 4 3 rd Street m u rd ers an d sev eral o th er m u r d e r s b ased o n h is s tu d y o f th eir actio n s an d w h e r e a b o u ts in h is cap acity as a g an g in tellig en ce o f

f icer. De fe n se co u n sel k n ew o f th ese s u sp icio n s b ecau se s h e su

b p o en aed Ch aco n ’ s n o tes f ro m th e n ig h t o f t he m

u rd er. T h e A y alas also kn e w th at Ch aco n s u sp ected th em o f an earlier m u rd er b e c a u s e C h aco n w as activ ely in v olv ed i n i ts i n v estig atio n

. In sh o rt, th e 2 0 1 0 ev id en ce d o es n o t sh o w th at th e State co n cealed ex cu lp ato ry

ev id en ce ab ou t Detectiv e Ch aco n

.

18 A y ala d raw s t h is issu e f ro m claim s 4 an d 8 (w

h ich b o th relate to

w itn ess in tim id atio n ) an d claim 1 2 (w h ich is a g en eral Na

p u e claim ).A Y A L A V

. C H A P P E L L 54

As ex p lained, when A y ala initially called Ra f a as a defense witness, Rafa’s testimony implicated Pete Castillo in the 43rd Street murders a nd ten d e d to ex onerate the Ay alas. Shortly after Rafa testified f or Ay ala, Detective C h acon visited him in jail, and accused him o f ly ing in court to b enefit Ay ala. After some discussion about the risk s R a f a

w o u l d face from g ang s upon his return to prison, Raf a admitted to Chacon that he l ied, and a g reed to recant his testimony

. Rafa’s rebuttal testimony ex onerated Castillo a nd implicated the Ay alas in the 43rd Street murders. 1 9

W ebb v

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

c learly established law g overning claims of wit n e s s intimidation by g overnment officials. I n W ebb

, the trial judg e strong ly admonished a defen se witness about the risks o f perjury before the witness testified. Id. at 95–96. The judg e sing led out this witness, telling him:

I f y ou take the wit n e s s s tand and lie under oath, the Co u r t will personally see that y our

case g oes to the g rand jury and y o u w i l l be indicted for perjury and the li k lihood (sic) is that y ou would g et convicted of perjury a nd that it would be stacked onto what y o u have already g ot, so that is the matter y ou have g ot to make up y our mind on.

Id. at 96. The witness chose not to testify

. Id. T he Supreme Court revers e d We b b ’ s conviction because “the unnecessarily strong terms used b y the judg e could well have ex e rted such

19 A y ala raised th ese w itn ess in tim id atio n an d N a p u e claim s b ef

o re th e Calif o rn ia Su p rem e Co u

rt in h is Ex h au s t i o n P etitio n , an d th e co u rt

su m m arily d en ied th em . T h e d i strict co u rt lik ew ise d en ied relief

.A Y A L A V

. C H A P P E L L 55

duress on the witness’ mind as to p reclude him from making

a free and v o luntary c hoice whether or not to testify .” Id. at 98. B ecause the judg e’s remarks “effectively d r o v e that witness off the stand,” the judg e violated the defendant’s d ue process rig ht to present a d efense, and reversal o f his conviction was w arranted. I d

. Under W

ebb

, “[ i] t is w ell established that ‘substantial g overnment interf e r e nce with a defense witness’s free and unhampered choi c e t o testify
amounts to a violation of d ue process.’” Earp v. O r n o s k i
, 431 F .3d 1158, 1170 (9th Cir. 2005) (quoting Uni t e d S tates v. Vavages , 151 F .3d 1185, 1188 (9th Cir. 1998)).

The California Supreme Court’s rejection of Ay a l a’s witness intimidation claim w as n ot contrary to or an unreasonable application of W ebb

. 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 t h reatened, coerced, manipulated and/or inti m i dated p otential and actual witnesses, including b ut not limited to” Rafa, and alleg e d that Chacon accomplished this coercion in part by threatening

to investig ate Rafa’s w ife J enifer for smug g ling dr u g s into prison. Standing alone (and taken as true), these alleg ations could amount to “subst a n t i a l

. . . interference” with Rafa’s choice to testify

. See E a r p , 4 3 1 F .3d a t 1170. B ut Hart’s declaration does not p rovide sources for its conclusions, a nd it was directly co n t r adicted by Rafa’s 1988 trial testimony that Chacon did not threaten h i m

. R a fa denied that Chacon told him he was on a h it list and testified that he alway s knew his life was in dang er because of his involvement with g ang s. He told the jury “[ t] he only thing [ Chacon] said [ was]

. . . ‘I don’t see w hy y ou’re helping t h e s e people out when y ou kn o w’ — ‘they ’ — y ou know, ‘ they don’t care about y o u,’
y ou k now.” Rafa also denied that Chacon threatened J eniferA Y A L A V

. C H A P P E L L 56

as a way of pressuring him to recant. R a t her, he ex p lained that he orig inally testified for the defense as a favor, but was motivat e d to recant because, d espite his promise to testify

, people associated with Ay ala tried to eng ag e J enifer in illeg al activity :

B u t, y ou know, af

t e r I testified and these people started calling my wife, y ou know, they w anted h er — told her, y o u know, that I had put him in a spot. They wanted her to g o visit somebody else i n p rison to take them drug s and

— . . . so I told them — I started thinking

, ‘man, I do these g uy s all these favors,’ y ou know, ‘and they d o n ’ t show me no kind of respect,’ y

ou know.

Defense counsel vig orously cross-ex amined R afa about whether Chacon threatened or intimidated him into r ecanting his testimony

, but Rafa consistently denied that this w a s the

c a s e. W ith nothing to support Hart’s alleg a tions, the California c ourt did not unreasonably apply W ebb w hen it rejected Ay

ala’s witness intimidation claim. 2 0

Nor did the California Supreme Court misapply federal la w w h e n it r ejected Ay ala’s Napue claim. See Napue
, 360 U. S

. a t 269 (“[ A] conviction o btained throug h use o f false e vidence, known to b e such by representatives of the

20 Ev id en ce ad d u ced at th e 2 0 1 0 h earin g did n o t s t r e n g t h e n A y ala’ s

w itn ess in tim id atio n claim

. B o t h Jen if er an d Raf

a testif ied at th e h earin g

co n sisten t w ith Raf

a’ s trial t estim on y

. Raf

a testif ied th at Ch aco n an d th e d istrict atto rn ey s “ d id n ’ t th reaten m e o r th ey d id n ’ t p ressu re m e to co m e b ack an d testif

y a g a i ns t Ro n n i e.” Jen if er lik ew ise d en ied th at Ch aco n th reaten ed to in v estig ate h er f o r sm u g g lin g d ru g s.A Y A L A V

. C H A P P E L L 57

S tate, must fall under the F ourteenth Amendment.”). Ay al a only offers Hart’s declaration t o b u ttress the alleg ation that Rafa lied in his recanted testimony

, and, as discussed, Rafa’s testimony refutes this charg e. The California Supreme Court reasonably

denied this claim. 2 1

VI. Other alleged trial court errors

Ay ala arg ues that the trial court committed several other

errors that deprived him of certain federal cons t itutional rig hts. W e address each alleg ed error in turn.

A. Refusal to strike juror Cosgove for cause

Ay ala arg ues that the trial c ourt c ommitted constitutional

error when it d eclined to st rike juror Cosg rove for cause. 2 2 According to Ay ala, juror Cosg rove was predisposed to v ote for the death penalty and his presence on the j u ry v iolated Ay ala’s d ue process rig ht to a f

air and imparti a l j u r y

. The California Supreme Court rejected this a r gument on direct appeal, see Ayala

, 1 P.3d at 24–25, a n d the district court denied federal habeas relief.

Morgan v. Illinois

, 504 U.S. 7 19 (1992), is the clearly established law applicable to this biased-juror claim. M organ

21 A y ala lik ew ise arg u es th at t h e State v i o lated W

eb b

, Na p u e , an d Bra d

y b ecau se it f

ailed to d isclo se “ a p attern o f in tim id atio n an d th reats d irected
at [p o ten t ial p ro secu tio n w itn esses Rich ard B u ch an an an d Mario Marin ], in an ef f o rt th at each testif

y f alsely ag ain st A y ala.” T h is arg u m en t f ails. A y ala d id n o t m en tio n Marin bef o re th e state co u rt, an d B u ch an an ref u s ed
to testif y

. T h u s, ev en if Ch aco n t h r e a t e n ed B u ch an an , A y ala can n o t estab lish p rej u d ice.

22 T h is arg u m en t co rresp o n ds to claim 4 7

.A Y A L A V

. C H A P P E L L 58

h o l d s that “[ a ] d efendant has a constitutional due proces s rig ht to remove for cause a juror who will automatically v ote for the death pen a l t y

. ” See United States v. Mitchell

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

. S. at 719).

The California Su p r e m e Court’s rejection of this claim

was not contrary to or an unreasonable application of M organ because juror Cosg rove was n o t a n automatic death penalty
voter. Cosg rove told counsel during voire dire that he “ would probably be 80 percent to 20 percent say ing that i f [ h e ] felt that so m e b o dy d id c ommit murder, that the death penalty should be applied,” b u t h e also said that “if there were mitig ating circumstances, [ h e] w ould take th e m into effect and weig h them.” Habeas re l i ef is not warranted on this claim. See M

itchell

, 5 02 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 thoug ht the only punishment for certain kinds of ‘horrific’ crimes should be death” bu t later “qualified that response b y indicating ‘well, death or imprisonment’” a

nd promised to keep an open mind); United States v. Fulks

, 454 F .3d 410, 4 2 8 (4th Cir. 2006) (district
court did not abuse its discre t i o n by letting a juror serve despite h is statement that he w ould vote for the death penalty in a murd e r ca s e “ say 90 p ercent of the time

. . . unless [ the mitig ating circumstances are] something outrag eous”). 2 3

23 Fo r th e sam e reaso n , w e af f irm th e d istrict co u rt’ s d en ial o f relief o n claim 3 4
, in w

h ich A y ala arg u es th at trial co u n sel w as i n e ffe ctiv e f or f ailin g t o u s e a p erem

p to ry strik e o n j u ro r Co sg ro v e. “ Estab lish in g S trickla n d p rej u d ice in th e co n t ex t o f j u ro r select i o n r e q u ires a sh o w in g th at, as a resu lt o f trial co u n sel’ s f ailu re to ex ercise p erem

p to ry ch allen g es, th e j u ry pan el co n tain ed at least o n e j u ro r w h o w as b iased .” Da vis v. W o o d fo rd

, 3 8 4 F.3 d 6 2 8
, 6 4 3 (9 th Cir. 2 00 4 ). A y ala h as n o t estab lish edA Y A L A V

. C H A P P E L L 59

B. Exclusion of deceased witness’s statements

Ay ala arg ues that the trial court violated his constitutional rig ht to present a defense when it ex cluded under California’s hearsay rules the ex culpatory statements of a d eceased witness, Arthur Castro. 2 4

During trial, A y ala moved to admit statements that Castro made to d efense investig ator B ill Papenhausen. The defense proffered Papenhausen to testify that Castro heard two people
arg uing in Spanish with Doming uez about a lar g e sum o f
money on the day before the murders, and that C as t r o later

saw “three males d

riving a way in a larg e car w i t h b l u e a nd white Mex ican plates.” T he trial court denied Ay ala’s motion
to admi t Papenhausen’s testimony under California’s residual hearsay rule. See Ayala

, 1 P.3d a t 28–29. T he California S u preme Court affirmed this ruling o n direct review, see i d

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

Chambers v. Mississippi
, 410 U.S. 284 (1973), is the applicable “clearly established F eder a l l a w .” See 28 U .S.C. § 2254(d)(1). I n Chambers

, the Supreme C o u r t held that a state court may not prohibit a defendant from presenting directly ex culpatory

evidence when the evidence is essential
to the defendant’ s c a s e and bears sufficient indicia o f reliability

. S

ee 4 10 U.S. a t 300–01. The facts in Chambers

were ex treme: After police o fficers a r rested L e on Chambers for murder, his friend, Gable M cD o n a ld, confessed to three different people that he, not Chambers, committed the crime.

th at j u ro r Co sg ro v e w as b iased

, s o h e can n o t satisf y S trickla n d ’ s p rej u d i ce p ro n g u n der A EDP A ’ s d ef eren tial stan dard

.

24 T h is arg u m en t co rresp o n ds to claim 4 4

.A Y A L A V

. C H A P P E L L 60

Id. at 288–89. The trial court prohibite d C hambers from presenting the testim o ny of these three witnesses u nder a Mississippi comm on-law e videntiary rule. Id. at 289. W ithout this evidence, th e j u ry c onvicted Chambers o f murder. Id. a t 2 85. The Supreme Court reversed the conviction, holding “the ex clusion of this critical evidence

. . . den i e d [ Chambers] a trial in accord with traditional a nd fundamental standards of due process.” Id. at 302. The Court rejected Mississi p pi’s arg ument that McDonald’s prior confessions were hearsay and therefore unreliable b ecaus e t h e confessions bore substantial indicia of reliability : they were ag ainst McDonald’s p enal interest, corroborated by other evidence, spontaneous, and McDonald was available for

cross-ex amination. Id. at 300–01.

F airminded jurists could disag ree a b o ut whether the California Supreme Court’s r esol u t i o n of this claim was contrary to or an unreasonable a p plication of Chambers

. See Bemore
, 788 F .3d at 1160 (discussing AE DPA’s deferential standard). Evidence falls within Cham b e rs ’s admissibility rule only when its ex clusion “sig nificantly u ndermine[ s] fundamental elements of the defendant’s defense.” United States v. Scheffer

, 5 23 U.S. 303, 3 1 5 ( 1 998). Here, while Castro’s account of three Me x i c an men at the body shop supported de fe n d ant’s theory o f the case, it was n o t directly

ex c u lpatory like the confession in Chambers

. See 410 U.S.
at 297 ( trial cour t ’s ruling e ffectively prevented Chambers “from ex ploring the circumstances of McDonald’s three prior oral conf e s s i o ns”); see also Scheffer

, 523 U.S. at 316 (observin g that “ Chambers specifically confined its holding
to the ‘facts and circumsta n ces’ presented in that case”). Also, Castro’s statement had fewer indicia of reliability than the statement in Chambers b e c ause Castro told his story to a defense investig ator who was assisting with trial preparation,A Y A L A V

. C H A P P E L L 61

not “sp o n t a n eously to a close acquaintance.” Chambers

, 4 1 0 U.S. at 300. Althoug h Castro did inculpate himself b y admitting to her o i n u s e, this statement was much less i n culpatory than the o n e at issue in Chambers

, whe r e t h e declarant admitted to murder

. Id. at 300–01. F inally

, unlike the declarant in Chambers

, Castro w as not available f or crossex a mination. I

d. at 301. The California court reached these

same conclusions in its review of this claim. Ayala

, 1 P.3d at 29–30. W e cannot say that its d ecision was unreasonable, so Ay ala is not entitled to habeas relief. Andrews

, 798 F

. 3d at 773 (“W hen a state c ourt 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

I n his closing arg u ments, the prosecutor told the jury that several witnesses, including Mez a , Casti l lo, Rafa, a nd Eduardo “L alo” Sanchez

, 2 5 made incons i s t e nt statements because they were afraid of A y ala and “those pe o p le w ho associated with the defendant.” Ayal a , 1 P

. 3 d at 40. Ay ala
arg ues that this and other similar statement s i n the prosecutor’s closing arg ument violated his c o nstitutional rig hts “beca

use the p r osecution improperly attempted to inject g ang issues into the trial.” 2 6 He separately a rg u es that trial counsel was ineffective fo r f a iling to object to the

25 San ch ez liv ed n ex t d o o r to th e b o dy sh op an d w as o n e o f

th e State’ s trial w itn esses. T o th e ap p are n t s u rp rise o f t h e p ro secu to r, San ch ez testif ied th at h e h eard n o t

h in g o n th e n i g h t o f

th e m u rd ers.

26 T h is arg u m en t co rresp o n ds to claim 7

.A Y A L A V

. C H A P P E L L 62

a l l eg edly improper statements. 2 7 T he California Suprem e Court dismissed these arg uments on direct review, see Ayala

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

Darden v. W

a inwright

, 477 U. S

. 1 6 8 (1986), is the relevant clearly established federal law. I n Darden the Court “ex p la ined that a prosecutor’s improper comments will be held to violate the Constitution only if they ‘so infected the trial with u n f

airness as to make the resulting conviction a denial of due p rocess.’” Parker v

. Matthews

, 132 S. Ct. 2148, 2153 (2012) (quoting Darden

, 4 47 U.S. at 181). Dard e n creates a “general” standard, g iving state courts “more leeway ” to apply it. Id

. a t 2 155 (quoting Y arborough v

. Alvarado

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

The California Supreme Court’s rejection of Ay al a ’s misconduct claim w as not an unreasonable application o f Darden because the prosecutor’s statements t h a t several witnesses f

e a r ed Ay ala were r easonably drawn from the witnesses’ testimony

. See Trillo v. B iter
, 769 F .3d 995, 1002 (9th Cir. 2014) (prosecutors are e ntitled to make reasonable inferences from the facts). Castillo told the jury that he “had worries, concern for my f amily

. There was just three people shot, and I w a s s h o t and almost killed.

. . . There was some people out there that actually kill p eople.” Rafa told the jury that h e orig inally testified for Ay a la in part because “I was afraid that if I
, y ou k

now, didn’t want to cooperate with them

. . . I mig ht

, y o u k n o w , g et killed or something

. ” Mez a likewise e x plained that, althoug h h e helped plan t h e 43rd Street r o bbery

, he did not participate because h e f eared the Ay alas would use the opportunity to kill him.

27 T h is arg u m en t co rresp o n ds to claim 2 6

.A Y A L A V

. C H A P P E L L 63

Also, the prosecutor’s closin g a rg ument a dhered to the trial c ourt’s order concerning the admissibi l i t y of g ang affiliation evidence. He did not mention g ang s, the Mex ican Mafia, or the E ME, but instead arg ued that witnesses were afraid of “what the defendant stood for” and “those with whom the d efendant assoc i a t es.” The jury could have understood these statement s t o m e a n that Ay ala was a g ang member, b ut it also could have understood them to mean that witnesses feared Ay a la simply b e c ause he had been accused of triple murder. The prosecutor’s comments about f ear a nd association were not so prejudicial that they undermined the fundamental fairness of Ay ala’s trial. “I ndeed, Darden itself held that a closing a

r g ument c onsiderably more inflammatory than the one at issue here d id not warrant h a b e as r elief.” Parker

, 132 S. Ct. at 2155; Darden

, 4 77 U.S. at 180 nn.9–11. Habeas relief is not warranted on this claim.

Nor was it unreasonable f

or the California Supreme Court
to reject Ay ala’s related I AC claim. Counsel “ was not constitutionally ineffective for failin g to object to the prosecutorial statements

. . . [ because t] h ose statements were based on r easonable inferences from the record.” See Trillo

, 769 F .3 d a t 1002; see also Cunningham v. W ong , 704 F .3d 1143, 11 5 9 ( 9 t h C i r

. 2013) (“[ A] bsent eg reg ious misstatements, the failure to object d uring closing arg ument and opening statement is within the ‘wide rang e’ o f permiss i b le p rofessional leg a l conduct.” (quoting United States v. Necoechea , 986 F .2d 1273, 1281 (9th Cir. 1993))).

D. Penalty-phase admission of the John Casas murder

I n the penalty phase, the trial court permitted the State to submit evidence that, nea r l y ten y ears before trial, Ay ala murdered an inmate named J ohn Casas while th e t w o wereA Y A L A V

. C H A P P E L L 64

incarcerated tog ether. 2 8 Ay ala arg ues this was constitutional

error because the state n ever charg ed him with this crime a nd “[ t] he e x tensive pre-trial delay in prosecut i n g Ay ala for the alleg ed Casas murder led to Ay ala’s demonstrable inability to present ex culpatory evidence which would have and should have ex o n e rated h im had the alleg ations been timely broug ht.”

Habea s r elief is not warranted on this c laim because Ay ala has not shown he suffered prejudice f rom the
g overnment’s delay in h olding him accountable for the Casas murder. S

ee United States v. L o v asco , 431 U.S. 7 83, 784, 7 9 5–96 (1977) (a due process claim based on “a de l a y between the c ommission of an offense and the initiation o f prosecution” requires defendant to establis h p r ejudice a nd fault on the part of the government). Ay ala claims he suffered prejudice b ecause he “lost” an ex culpat o ry witness during the eig ht y ears that passed b etween the Casas murder

a nd the penalty phase o f his trial. According to Ay a l a , t h i s witness would have testified that h e saw another inmate with

a knife “about ten minutes before the [ Casas] stabbing

. ” B ut this account is not sug g estive of Ay ala’s innocence, particularly

when set ag ainst the State’s two witnesses, both of whom testified that they saw A y ala stab Casas. Ay ala’s inability to show prejudice from this delay is fatal to his due process claim. Id.

28 T h is arg u m en t co rresp on d s to claim 3 9

. Ay a l a p resen ted th is
arg u m en t t o th e Calif

o rn ia Su prem e Co u

rt o n d irect rev iew

, th e C alif o rn ia

co u rt rej ected it, Aya la

, 1 P .3 d at 4 9
, an d th e d istrict co u rt d en ied f

ed eral h ab eas relief

.A Y A L A V

. C H A P P E L L 65

VII. Cum ulative error

Ay ala nex t arg ues t h at the cumulative impact of his lawy ers’ deficiencies, the State’s Brady v iolations, Detective Chacon’s intimidation of witnesses, a nd the trial court’s

e rrors requires reversal of his conviction. 2 9 W e have previously recog niz ed that “[ a] lthoug h individual errors may not rise to the level of a constitutional violation, a collection of e r r o rs mig ht violate a defendant’s constitutional rig h ts.” W oods

, 764 F .3d at 1139 (quot i n g Da vis
, 384 F .3d at 654). Here, we do not ag ree that Ay ala has suffered such prejudice. Any e rrors made b y trial counse l

, t h e trial court, or the
g overnment in Ay ala’s case were m i n o r and “did not render [ Ay ala’s] trial fundamentally unfair.” See Davis
, 3 84 F .3d at 654. F urther, if Ay ala suffered any injustice at trial

, i t was rectified by the district court’s thoroug h handling of his federal habeas petition. The district co u rt’s evidentiary hearing spanned twenty day s and thor o u g hly aired Ay ala’s
most meritorious claims ( an opportunity most federal h abeas petitioners are denied post- Pinholster ). During this hearing

, the c ourt took testimony from former witnesses, counsel, a nd investig ators on Ay ala’s case and a dmitted d o z ens o f

ex h ibit s

. The ex perienced district judg e painstaking ly reviewed Ay ala’s evidence, and was convince d that Ay ala’s conviction and sentence were not the product o f an unfair trial. W e ag ree with J u dg e Moskowitz ’s conclusion.

29 T h is arg u m en t co rresp o n ds to claim 2

.A Y A L A V

. C H A P P E L L 66

VIII. Actual innocence

Ay ala’s final claim is that he is actually innocent of these murders. 3 0 The Supreme Court has assumed that a freestanding innocence claim is c og n iz able on federal h abeas review, b ut it has n oted that “the threshold showing for such

an assumed r ig ht would necessarily be ex traordinarily hig h.” Herrera v

. Collins

, 5 06 U.S. 390, 417 (1993). Ay ala does not meet this h i gh t hreshold of proof. Neither the evidence before the state court nor the evidence adduced at the 2010 evidentiary h e a ri ng supports Ay ala’s contention that key witn e s s e s ag ainst him lied at the behest of the g overnment. Nor does the record support Ay ala’s claim that the prosecution withheld e ssential evidence about Mez a’s immunity a g reement or relationship with Detective Chacon. The evidence Ay ala introduced in 2010 to support his h abeas petition is much less c ompelling than that submitted by the petitioner in Herrera

. See id. at 3 9 6–98 (deny ing H e r r e ra’s actual innocence claim even thoug h several individuals, including o ne ey ewitness, submitted affidavits claiming that Herrera’s brother committed the murders for which Herrera had been co n v i c ted). The Supreme Court’s d enial o f Herrera’s freestanding innocence c laim urg es the same result here, and the Californ i a c o u r t’s dismissal of this c laim was therefore not unreasonable. See 28 U.S.C. § 2254(d)(1).

30 T h is arg u m en t co rresp o n d s to claim 1

. A y ala p resen ted th is claim in h is Ex h au stio n P etitio n , th e Calif o rn ia Su p rem e Co u rt su

m m arily d en ied it, an d th e d istrict co u rt d en i ed relief

.A Y A L A V

. C H A P P E L L 67

CONCLUSION

F or the foreg oing reas o n s , we affirm the district court’s denial of Ay ala’s petition for writ of habeas corpus.

AF F IRMED

.