FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT JURADO,

Petitioner-Appellant,

v.

RONALD DAVIS, Warden, San

Quentin State Prison,

Respondent-Appellee.

No. 18-99009

D.C. No.

3:08-cv-01400-

JLS-JMA

OPINION

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Argued and Submitted June 23, 2021

Pasadena, California

Filed September 10, 2021

Before: Sidney R. Thomas, Chief Judge, and Susan P.

Graber and Richard R. Clifton, Circuit Judges.

Opinion by Chief Judge Thomas
2 JURADO V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s judgment denying

Robert Jurado’s habeas corpus petition challenging his firstdegree murder conviction and death sentence. 

The panel held that the California Supreme Court’s

conclusion that the Double Jeopardy Clause did not bar

further prosecution of Jurado was not an unreasonable

application of clearly established federal law or an

unreasonable determination of the facts within the meaning

of 28 U.S.C. § 2254(d). After Jurado’s indictment, the state

trial court granted Jurado’s motion to set aside the lying-inwait special circumstance based on insufficiency of the

evidence, and Jurado pleaded guilty to all pending charges. 

The California Court of Appeal held that the special

circumstance had been improperly dismissed, and that the

double jeopardy bar posed no bar to its reinstatement, relying

on Ohio v. Johnson, 467 U.S. 493 (1984). The California

Supreme Court denied Jurado’s petition for review. Jurado

then withdrew his guilty plea, entered a plea of not guilty, and

was convicted at trial. The panel wrote that, as in Johnson,

the Double Jeopardy Clause is not implicated because Jurado

was not subject to multiple punishments for the same offense,

and the special circumstance was an included part and parcel

of the initial prosecution. 

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

been prepared by court staff for the convenience of the reader.
JURADO V. DAVIS 3

The panel held that the California Supreme Court’s

conclusion that the admission at trial of the videotaped

conditional examination of Brian Johnsen (the victim’s

boyfriend at the time of her murder) did not violate Jurado’s

rights to due process and to a reliable penalty determination

was not an unreasonable determination of the facts within the

meaning of 18 U.S.C. § 2254(d)(2), where the prosecutor

submitted a declaration that Johnsen’s life would be at risk if

he testified, and Jurado and his counsel had a full and fair

opportunity to cross-examine Johnsen during the conditional

examination.

The panel held that the California Supreme Court’s

conclusion that Jurado’s constitutional rights were not

violated by Steven Baldwin’s testimony regarding Denise

Shigemura’s out-of-court statements was not an unreasonable

determination of the facts or an unreasonable application of

clearly established facts. The panel wrote that the California

Supreme Court did not rely on an unreasonable determination

of the facts or an unreasonable application of clearly

established federal law in concluding that the trial court’s

admission of Shigemura’s pre-crime statement amounted to

harmless error, or that her post-crime statement was properly

admitted as an adoptive admission. The panel wrote that

admission of the post-crime statement likewise did not violate

Jurado’s clearly established Confrontation Clause rights.

The panel held that the California Supreme Court’s

conclusion that the trial court’s penalty-phase exclusion of

Jurado’s videotaped confession to police officers did not

violate Jurado’s right to a fair trial and reliable penalty

determination, because capital defendants have no

constitutional right to the admission of evidence lacking

trustworthiness, did not rest on an unreasonable determination
4 JURADO V. DAVIS

of the facts or an unreasonable application of clearly

established federal law.

The panel held that the California Supreme Court’s

conclusion that the admission at the penalty phase that the

victim was seventeen weeks pregnant at the time she was

killed did not violate Jurado’s constitutional to right to a

fundamentally fair sentencing hearing was not contrary to, or

an unreasonable application of, Supreme Court precedent.

The panel held that the California Supreme Court’s

conclusion that Jurado’s rights to due process, a fair penalty

trial, and a reliable sentence were not violated by the

admission of evidence concerning Jurado’s prior incidents of

violence was not contrary to and did not involve an

unreasonable application of clearly established federal law.

The panel held that the California Supreme Court’s

rejection of Jurado’s challenge to the jury instructions was

not contrary to or an unreasonable application of clearly

established federal law. The panel wrote that the trial court’s

failure to instruct the jury sua sponte on the law of assault and

aiding and abetting liability did not so infect the sentencing

proceedings such that Jurado’s sentence violates due process. 

The panel wrote that even assuming that counsel’s failure to

request the instruction constituted ineffective assistance,

Jurado cannot demonstrate prejudice because the state court

reasonably could have concluded that the evidence of aiding

and abetting was overwhelming.

The panel held that the California Supreme Court’s

rejection of Jurado’s ineffective assistance of counsel claim

based on his attorney’s concession that Jurado intentionally
JURADO V. DAVIS 5

killed the victim was not contrary to or an unreasonable

application of clearly established federal law.

The panel held that the California Supreme Court’s

rejection of Jurado’s claim of ineffective assistance of

counsel at the penalty phase was not contrary to or an

unreasonable application of clearly established federal law. 

The panel did not need to reach the issue of whether

counsel’s performance was deficient, as Jurado has not

adequately established that any of counsel’s alleged

deficiencies resulted in prejudice within the meaning of

Strickland v. Washington, 466 U.S. 668 (1984).

Finally, the panel held that the district court did not abuse

its discretion in denying Jurado’s request for evidentiary

development, discovery, and an evidentiary hearing.

COUNSEL

Stephen M. Lathrop (argued), Lathrop & Villa, Rolling Hills

Estates, California; Robert E. Boyce (argued), Boyce &

Schaefer, San Diego, California; for Petitioner-Appellant.

Marvin E. Mizell (argued) and Ronald A. Jakob, Deputy

Attorneys General; Ronald S. Matthias, Senior Assistant

Attorney General; Rob Bonta, Attorney General; Attorney

General’s Office, San Diego, California; for RespondentAppellee.
6 JURADO V. DAVIS

OPINION

THOMAS, Chief Judge:

Robert Jurado, a California inmate on death row, appeals

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

corpus. We review de novo a district court’s denial of a

habeas corpus petition and review for clear error any factual

findings made by the district court. Hurles v. Ryan, 752 F.3d

768, 777 (9th Cir. 2014). We review for abuse of discretion

a district court’s decision whether to conduct an evidentiary

hearing. Stanley v. Cullen, 633 F.3d 852, 863 (9th Cir. 2011).

Because Jurado’s petition was filed in the district court

after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), “we may grant

habeas relief only if the state court’s decision (1) ‘was

contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme

Court . . . ; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Davis v.

Woodford, 384 F.3d 628, 637 (9th Cir. 2004)(quoting

28 U.S.C. § 2254(d)).

“A state court decision is ‘contrary to’ clearly established

Supreme Court precedent if the state court applies a rule that

contradicts the governing law set forth in Supreme Court

cases or if the state court confronts a set of facts materially

indistinguishable from those at issue in a decision of the

Supreme Court and, nevertheless, arrives at a result different

from its precedent.” Lambert v. Blodgett, 393 F.3d 943, 974

(9th Cir. 2004). A state court’s decision is an “unreasonable

application” of federal law if it “identifies the correct
JURADO V. DAVIS 7

governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Lockyer v. Andrade, 538 U.S. 63, 75

(2003) (quotations and citation omitted). The Supreme Court

has explained that the exceptions based on “clearly

established” law refer only to “the holdings, as opposed to the

dicta, of th[e] Court’s decisions as of the time of the relevant

state-court decision.” (Terry) Williams v. Taylor, 529 U.S.

362, 412 (2000).

With respect to § 2254(d)(2) claims, “a state-court factual

determination is not unreasonable merely because the federal

habeas court would have reached a different conclusion in the

first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). If

“‘[r]easonable minds reviewing the record might disagree’

about the finding in question, ‘on habeas review that does not

suffice to supersede the trial court’s . . . determination.’” Id.

(quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)).

“[E]ven a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Harrington

v. Richter, 562 U.S. 86, 102 (2011). “If this standard is

difficult to meet, that is because it was meant to be.” Id. As

amended by AEDPA, § 2254(d) “preserves authority to issue

the writ [only] in cases where there is no possibility

fairminded jurists could disagree that the state court’s

decision conflicts with [Supreme Court] precedents. It goes

no further.” Id. Under AEDPA, then, habeas corpus is a

guard only “against extreme malfunctions in the state

criminal justice systems,” and is not a means for “ordinary

error correction through appeal.” Id. at 103 (quoting Jackson

v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J.,

concurring in judgment)).
8 JURADO V. DAVIS

Applying these standards, we affirm the judgment of the

district court.

I

On May 17, 1991, Teresa Holloway’s body was found off

of Highway 163 in San Diego County. The cause of death

was determined to be “blunt force head injuries and

strangulation.”

According to the evidence adduced at trial, Petitioner

Robert Jurado and his roommate, Denise Shigemura, hatched

a plan to kill a drug dealer named Doug Mynatt, with whom

the two had an ongoing dispute. Jurado and Shigemura

became concerned that their acquaintance and Mynatt’s

former roommate, Teresa Holloway, would reveal their plan. 

Jurado, Shigemura, and Jurado’s girlfriend, Anna Humiston,

apparently killed Holloway in a car by strangling her with an

18-inch weed-eating cord and beating her with the car’s

scissor-jack. Jurado was interviewed by police soon after the

murder, and he confessed to killing Holloway, cooperated

with law enforcement, and took police to the scene of the

crime where they located the tire jack.

Jurado was indicted on one count of conspiracy to commit

murder and one count of first degree murder committed while

lying in wait, a special circumstance that made him eligible

for the death penalty. Jurado was tried separately from his

co-defendants, Shigemura and Humiston. The jury convicted

him of first degree murder and determined that death was the

appropriate penalty. After denying a motion for new trial and

to modify the verdict, the trial court sentenced Jurado to

death.
JURADO V. DAVIS 9

The California Supreme Court affirmed the judgment in

People v. Jurado, 38 Cal. 4th 72 (2006). Jurado petitioned

for writ of certiorari, and the Supreme Court of the United

States denied Jurado’s petition in Jurado v. California,

549 U.S. 956 (2006). While his direct appeal was pending,

Jurado filed a state habeas petition in the California Supreme

Court, which was denied without an evidentiary hearing.

Jurado’s first federal habeas petition was stayed in order

to allow him to exhaust his claims in state court. The

California Supreme Court subsequently denied his second

state petition.

The district court denied habeas relief on Jurado’s second

amended federal habeas petition, and also denied his motions

for investigation, evidentiary development, and an evidentiary

hearing. The district court subsequently issued a certificate

of appealability, and stayed execution pending appeal. This

timely appeal followed.

II

A

The California Supreme Court’s conclusion that the

Double Jeopardy Clause did not bar further prosecution of

Jurado was not an unreasonable application of clearly

established federal law or an unreasonable determination of

the facts within the meaning of § 2254(d).

After Jurado’s indictment, the state trial court granted

Jurado’s motion to set aside the special circumstance based

on insufficiency of the evidence, and Jurado immediately

pleaded guilty to all pending charges. The prosecutor
10 JURADO V. DAVIS

acknowledged that Jurado “can plead to the face at any time,”

but indicated that “the People would not be signing the

change of plea form,” and specified that “there’s a possibility

that the People may take a writ on the ruling by the court.” 

Additionally, the prosecutor noted that he “wanted counsel to

be aware that the plea could conceivably be set aside at a later

time depending on how that procedure goes.”

The following month, the prosecution sought

reinstatement of the special circumstance allegation in the

California Court of Appeal. People v. Superior Court

(Jurado), 4 Cal. App. 4th 1217 (1992). The Court of Appeal

held that the special circumstance had been improperly

dismissed. See id. at 1229. The Court of Appeal further held

that double jeopardy posed no bar to the reinstatement of the

special circumstance, relying on Ohio v. Johnson, 467 U.S.

493, 500–02 (1984) (holding double jeopardy did not bar

prosecution of more serious crimes when defendant pleaded

to less serious crimes). Id. at 1229–30. The California

Supreme Court denied Jurado’s petition for review, and

Jurado withdrew his guilty plea and entered a plea of not

guilty. Jurado raised this issue again on direct appeal, and the

California Supreme Court rejected it, relying on Johnson.

In Johnson, the defendant was indicted on one count of

murder, one count of involuntary manslaughter, one count of

aggravated robbery, and one count of grand theft. Id. at 495. 

At his arraignment, the defendant offered to plead guilty to

the involuntary manslaughter and grand theft charges, and

despite the prosecutor’s objection, the trial court accepted the

guilty pleas and sentenced the defendant to a term of

imprisonment. Id. at 496. The defendant subsequently

requested that the trial court dismiss the murder and

aggravated robbery charges on the ground that involuntary
JURADO V. DAVIS 11

manslaughter and grand theft were lesser included offenses,

and that the continued prosecution of the greater offenses

after acceptance of the defendant’s guilty pleas on the lesser

offenses was barred by the Double Jeopardy Clause. Id. The

trial court dismissed the charges and the Ohio Court of

Appeals and the Ohio Supreme Court affirmed because under

Ohio law, a defendant can only be found guilty of either

murder or involuntary manslaughter (but not both), and either

aggravated robbery or grand theft (but not both). Id.

at 496–97.

The Supreme Court reversed. It concluded that, contrary

to the Ohio Supreme Court’s determination, the case did not

concern the double jeopardy protection prohibiting multiple

punishments for the same offense. Id. at 497. It found that

the “trial court’s dismissal of [the] more serious charges did

more than simply prevent the imposition of cumulative

punishments; it halted completely the proceedings that

ultimately would have led to a verdict of guilt or innocence

on [those] more serious charges.” Id. at 499–50. This went

beyond the Double Jeopardy Clause’s “principles of finality

and prevention of prosecutorial overreaching,” id. at 501, and

“den[ied] the State its right to one full and fair opportunity to

convict those who have violated its laws.” Id. at 502. The

Court stated that no interest protected by the Double Jeopardy

Clause was implicated by continuing prosecution on the

remaining charges where the defendant offered only to

resolve part of the charges against him and the state objected

to disposing of any of the charges without a trial. Id. at 501. 

And it ultimately held that “the Double Jeopardy Clause [did]

not prohibit the State from continuing its prosecution of

respondent on the charges of murder and aggravated

robbery.” Id. at 502.
12 JURADO V. DAVIS

A substantially similar situation is presented here. The

state trial court dismissed the special circumstance, and

Jurado unconditionally pleaded guilty to the remaining

charges. The State appealed. Applying Johnson, the

California Court of Appeal allowed reinstatement of the

special circumstance, and Jurado withdrew his guilty plea. 

As in Johnson, the Double Jeopardy Clause is not implicated

because Jurado was not subject to multiple punishments for

the same offense. Moreover, on direct appeal, the California

Supreme Court specifically found that the prosecutor had not

acquiesced in Jurado’s plea, and accordingly, Jurado’s case

was indistinguishable from Johnson. Jurado, 38 Cal. 4th

at 97.

Jurado argues that Johnson does not apply because more

serious charges did not remain pending against him at the

time he pleaded guilty. However, Johnson explained that

where multiple charges are “embraced within a single

prosecution,” they are not “capable of being infinitely

subdivided” such that “a determination of guilt and

punishment on one count of a multicount indictment

immediately raises a double jeopardy bar to continued

prosecution on any remaining counts that are greater or lesser

included offenses of the charge just concluded.” Johnson,

467 U.S. at 501. Regardless of the timing of Jurado’s plea,

this is the same course of events that occurred in his

prosecution—the special circumstance was an included part

and parcel of the initial prosecution—and the California

Supreme Court was not unreasonable in concluding that the

rationale in Johnson applied to Jurado’s case.

Jurado also attempts to distinguish Johnson because the

prosecutor in this case did not explicitly object to his plea. 

However, the California Supreme Court’s conclusion that the
JURADO V. DAVIS 13

prosecutor’s actions in this case were equivalent to an

objection was not objectively unreasonable, as it was clear

that the prosecution was opposed to the guilty plea and

wanted to pursue prosecution of the special circumstance

allegation. In sum, the district court correctly concluded that

the California Supreme Court’s determination that Johnson’s

holding controlled was not unreasonable.1

B

The California Supreme Court’s conclusion that Jurado’s

rights to due process and a reliable penalty determination

were not violated by the admission at trial of Brian Johnsen’s

videotaped conditional examination was not an unreasonable

determination of facts within the meaning of § 2254(d)(2).

The state trial court permitted the prosecution to play

Johnsen’s videotaped conditional examination at trial, after

specifically finding that Johnsen’s life would be in jeopardy

if he were to testify at trial. Johnsen, who was Holloway’s

boyfriend at the time of her murder, testified that Mynatt had

previously kidnapped and threatened to kill Jurado, and he

explained details about the conspiracy to kill Mynatt. 

Johnsen also discussed his telephone conversation from jail

with Holloway the day she was killed. Jurado’s counsel

cross-examined Johnsen throughout the conditional

examination.

1 Because the California Supreme Court’s decision rested on

application of Johnson, we need not and do not reach Jurado’s argument

regarding whether the special circumstance was a different offense or a

greater element of capital murder.
14 JURADO V. DAVIS

On appeal, the California Supreme Court concluded that,

with respect to Johnsen’s conditional examination, the

prosecutor satisfied the requirements of California Penal

Code § 1335(b) and § 1336(b) by submitting a declaration

stating that Johnsen’s life was in danger from Mynatt, Jurado,

and Jurado’s co-defendants and associates. Jurado, 38 Cal.

4th at 114. The court also concluded that since Jurado had a

full and fair opportunity to cross-examine Johnsen during his

conditional examination, his constitutional rights were not

violated. Id. at 115.

“[A] decision adjudicated on the merits in a state court

and based on a factual determination will not be overturned

on factual grounds unless objectively unreasonable in light of

the evidence presented in the state-court proceeding,

§ 2254(d)(2).” Miller-El v. Cockrell, 537 U.S. 322, 340

(2003). Additionally, the admission of particular evidence

provides a basis for habeas relief only when it “render[s] the

trial fundamentally unfair in violation of due process,” Holley

v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting

Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995)).

It was not objectively unreasonable for the state courts to

determine, on the basis of the prosecutor’s declaration, that

Johnsen’s life would be at risk if he testified. As

demonstrated by the circumstances of the case, both Mynatt

and Jurado and his associates would be highly motivated to

kill or harm Johnsen—a direct threat was not necessary to

draw this inference. Moreover, the admission of the

conditional evidence did not violate Jurado’s rights to due

process or a reliable penalty determination because, as the

California Supreme Court held, Jurado and his counsel had a

full and fair opportunity to cross-examine Johnsen during the

conditional examination. Jurado, 38 Cal. 4th at 115.
JURADO V. DAVIS 15

C

The California Supreme Court’s conclusion that Jurado’s

constitutional rights were not violated by Steven Baldwin’s

testimony at trial regarding Denise Shigemura’s out-of-court

statements was not an unreasonable determination of the facts

or an unreasonable application of clearly established federal

law.

Baldwin testified that Shigemura came over to his house

a couple days before the murder. Shigemura asked him if he

could get her a “gat” (a slang term referring to a gun) because

she had a problem that she needed to take care of. Baldwin

also testified that the day after the murder, he let Jurado,

Shigemura, and Mark Schmidt into his home. Baldwin

testified that, while in Jurado’s presence, Shigemura, sitting

next to Jurado on the couch, told Baldwin, “I no longer need

what it was I asked you for. We took care of the problem and

we dumped the body at Balboa Park.” Jurado remained silent

during and after this statement was made. The trial court held

that the statement was admissible as an adoptive admission

by Jurado, and Shigemura’s earlier statement requesting a

“gat” was admissible as a co-conspirator statement.

The California Supreme Court held that the trial court

correctly admitted Shigemura’s statement to Baldwin in

Jurado’s presence as an adoptive admission. Jurado, 38 Cal.

4th at 116–17. The court concluded that Shigemura’s request

for the “gat” was not hearsay because “a request, by itself,

does not assert the truth of any fact, [and] it cannot be offered

to prove the truth of the matter stated,” but that the statement

“was hearsay insofar as it asserted that Shigemura had a

problem that she needed to take care of.” Id. at 117. The

court also concluded that Jurado suffered no prejudice as a
16 JURADO V. DAVIS

result of the admission of the pre-crime statement because the

substance of that statement was repeated in the post-crime

statement made in Jurado’s presence and which Jurado

adopted through his conduct. Id. at 118.

The California Supreme Court’s conclusion that the trial

court’s admission of Shigemura’s pre-crime

statement—asking Baldwin if he had a “gat” and explaining

that she had a problem she needed to take care of—amounted

to harmless error did not rest on an unreasonable

determination of the facts or an unreasonable application of

clearly established law. To grant relief on this basis, we

would need to conclude that “the harmlessness determination

itself was unreasonable.” See Davis v. Ayala, 576 U.S. 257,

269 (2015) (quotations and citation omitted). The state

court’s harmlessness determination was not unreasonable

here because the substance of the pre-crime statement was

repeated in the post-crime statement. Thus, even if the precrime statement had not been admitted at trial, the jury still

would have known that Shigemura previously indicated to

Baldwin that she had a problem she needed to take care of

and that she (and Jurado) subsequently took care of that

problem by dumping a body in Balboa Park.

The California Supreme Court decision also did not rely

on an unreasonable determination of the facts or an

unreasonable application of clearly established law in

concluding that Shigemura’s post-crime statement was

properly admitted as an adoptive admission. Shigemura’s

post-crime statement—“I no longer need what it was I asked

you for. We took care of the problem and we dumped the

body at Balboa Park”—accused Jurado of committing a

crime, in particular, because of her use of “we” and because

of her location next to Jurado on a couch. There is no
JURADO V. DAVIS 17

indication that Jurado could not hear Shigemura’s statement,

or that he did not understand that she was implicating him in

the crime described. Therefore, he should have been

compelled to reply or object if Shigemura’s statement was

incorrect, and it was not “objectively unreasonable” for the

state court to construe his silence as an adoptive admission. 

Miller-El, 537 U.S. at 340. As the statement was properly

admitted as an adoptive admission, it did not cause the trial to

be “fundamentally unfair,” in violation of due process. See

Holley, 568 F.3d at 1101; see also Estelle v. McGuire,

502 U.S. 62, 67–68 (1991). Likewise, its admission did not

violate Jurado’s clearly established Confrontation Clause

rights. The Sixth Amendment’s Confrontation Clause

protectionsfocus on testimonial statements, or statements that

“bear testimony.” See Crawford v. Washington, 541 U.S. 36,

51–53 (2004). Supreme Court precedent, however, has yet to

address whether adoptive admissions are testimonial

statements that fall within the Confrontation Clause’s

protections.

D

The California Supreme Court’s conclusion that Jurado’s

constitutional rights were not violated by the trial court’s

exclusion of his videotaped confession at the penalty phase

does not warrant relief under § 2254(d).

During the penalty phase, defense counsel sought to admit

a videotape of the confession Jurado gave to police officers. 

During the interrogation, Jurado wept as he admitted he “did

it,” and when the detectives asked if Jurado knew Holloway

was still alive when he dumped her in a ditch, he said, “I

don’t know. Only God knows that, man.” When the

detectives asked if Jurado sustained any injuries during the
18 JURADO V. DAVIS

fight, he replied, “The only injury I got is from my, just from

my conscience.” The defense asserted this evidence of

remorse was needed to rebut the prosecution’s evidence that

after Jurado was arrested, he called Christine Medlin and sang

something like “On, on, the bitch is gone” to the tune of a rap

song, and he also said that he did not care if he had to spend

the rest of his life in prison because “it was worth it.”

The trial court refused to admit the videotape because it

determined that, under Green v. Georgia, 442 U.S. 95 (1979),

the statements made on the confession tape were inadmissible

hearsay, and that no applicable hearsay exception applied. It

further concluded that, as to the non-assertive emotions

contained in the tape, there was no compelling need for the

evidence, and no substantial evidence of inherent

trustworthiness or reliability. The trial court noted that

“nowhere does [Jurado] expressly articulate any emotion, if

you will, or concern or remorse about the victim or her

family,” and instead, he only “express[ed] concern about not

wanting to go to jail, not wanting to be labeled as a snitch,”

or other fears that he or his family might be harmed.

The California Supreme Court held the trial court’s

exclusion of the interrogation did not violate Jurado’s right

to a fair trial and reliable penalty determination because

capital defendants have no constitutional right to the

admission of evidence lacking trustworthiness. Jurado,

38 Cal. 4th at 130. The court held that the trial court had

correctly determined that the circumstances of the

interrogation lacked indicia of trustworthiness. Id. at 129–30

(citing Cal. Evid. Code §§ 1250 & 1252).

The California Supreme Court decision did not rely on an

unreasonable determination of the facts within the meaning
JURADO V. DAVIS 19

of § 2254(d)(2), nor did the decision involve an unreasonable

application of clearly established federal law. “A defendant’s

right to present relevant evidence is not unlimited, but rather

is subject to reasonable restrictions.” United States v.

Scheffer, 523 U.S. 303, 308 (1998). Such reasonable

restrictions may include the requirement that certain evidence

be excluded if it is not sufficiently reliable. See id. at 308–12

(upholding application of Military Rule of Evidence 707,

which operated to exclude polygraph evidence defendant

sought to introduce because “there is simply no consensus

that polygraph evidence is reliable”). The California

Supreme Court did not unreasonably conclude that the

videotaped interrogation lacked persuasive assurances of

trustworthiness. Therefore, its decision to affirm the

exclusion of the videotape was not contrary to or an

unreasonable application of clearly established federal law.

E

The California Supreme Court’s conclusion that Jurado

was not denied his constitutional right to a fundamentally fair

sentencing hearing was not contrary to, or an unreasonable

application of Supreme Court precedent. Jurado argues that

his right was violated by the admission of evidence at the

penalty phase that Holloway was seventeen weeks pregnant

at the time she was killed.

The California Supreme Court affirmed the admission of

the pregnancy evidence at the penalty phase because, under

Payne v. Tennessee, 501 U.S. 808, 827 (1991), the Eighth

Amendment “permits the prosecution, in a capital case, to

present evidence about the murder victim and the specific

harm the defendant caused as relevant to the jury’s penalty

decision.” Jurado, 38 Cal. 4th at 130. The pregnancy
20 JURADO V. DAVIS

evidence was relevant because the “facts concerning the

victim that are admissible at the penalty phase of a capital

trial as circumstances of the crime are not limited to those

known to or reasonably foreseeable by the defendant at the

time of the murder.” Id. at 131. It found that the evidence

was not unduly prejudicial because, in murdering Holloway,

the “defendant also terminated the life of a healthy 17-weekold fetus she was carrying,” and that this was “part of the

harm caused by defendant’s crime and thus was a legitimate,

though emotional, consideration for the jury in making its

penalty decision.” Id. The court also noted that Jurado had

not challenged the manner in which the evidence was

presented, and confirmed that the evidence was “not

presented in an unnecessarily inflammatory way.” Id.

The California Supreme Court correctly concluded that

victim impact evidence is permissible at sentencing in a

capital case. See Payne, 501 U.S. at 824–25 ( “[A] State may

properly conclude that for the jury to assess meaningfully the

defendant’s moral culpability and blameworthiness, it should

have before it at the sentencing phase evidence of the specific

harm caused by the defendant.”). The decision also did not

rely on an unreasonable determination of the facts. The state

court weighed the impact the evidence likely had on the jury,

but it reasonably concluded that the pregnancy evidence “was

part of the harm caused by defendant’s crime and thus was a

legitimate, though emotional, consideration for the jury in

making its penalty decision.” Jurado, 38 Cal.4th at 131. 

This determination was not objectively unreasonable within

the meaning of § 2254(d)(2).
JURADO V. DAVIS 21

F

The California Supreme Court concluded that Jurado’s

rights to due process, a fair penalty trial, and a reliable

sentence were not violated by the admission of evidence

concerning Jurado’s prior incidents of violence. This

determination was not contrary to and did not involve an

unreasonable application of clearly established federal law.

At trial the prosecution introduced evidence of two

physical altercations that had taken place between Jurado and

his mother, Josephine Jurado. As a result, Josephine applied

for a restraining order to have Jurado removed from the

house. The application indicated that Jurado “threatened to

obtain weapons during this incident and shoot up [her]

house,” “threatened to kill [her],” and “raised his hand as if

to strike [her].”

Under California law at the time of Jurado’s trial, “[i]f [a]

defendant has been found guilty of murder in the first degree,

and a special circumstance has been charged and found to be

true . . . the trier of fact shall determine whether the penalty

shall be death or confinement in state prison for a term of life

without the possibility of parole.” Cal. Penal Code § 190.3. 

In determining the penalty, if relevant, the trier of fact “shall

take into account” “[t]he presence or absence of criminal

activity by the defendant which involved the use or attempted

use of force or violence or the express or implied threat to use

force or violence.” Id.§ 190.3(b). “A habeas petitioner who

challenges a state court’s admission into evidence of prior

acts of misconduct is not entitled to habeas corpus relief

unless the state court’s admission of this evidence violated

the petitioner’s federal due process right to a fair trial under

the Constitution.” Gordon v. Duran, 895 F.2d 610, 613 (9th
22 JURADO V. DAVIS

Cir. 1990). Simple state law error does not warrant federal

habeas relief. Estelle, 502 U.S. at 67–68.

The admission of evidence of prior acts of violence did

not render the penalty phase of Jurado’s trial fundamentally

unfair in violation of due process. The evidence complied

with § 190.3(b)’s requirements: Jurado’s conduct amounted

to battery and/or assault.

The admission of this evidence also does not run afoul of

Supreme Court precedent holding that aggravating

circumstances that renders a defendant eligible for the death

penalty “must genuinely narrow the class of persons eligible

for the death penalty and must reasonably justify the

imposition of a more severe sentence on the defendant

compared to others found guilty of murder.” Zant v.

Stephens, 462 U.S. 862, 877 (1983). Here, the evidence was

introduced only after the jury had already found Jurado

eligible for the death penalty. Accordingly, the requisite

narrowing function had already taken place. See, e.g., id. at

878 (“But the Constitution does not require the jury to ignore

other possible aggravating factors in the process of selecting,

from among [the class of persons eligible for the death

penalty], those defendants who will actually be sentenced to

death.”).

G

The California Supreme Court’s rejection of Jurado’s

challenge to the instructions given to the jury in his case was

not contrary to or an unreasonable application of clearly

established federal law.
JURADO V. DAVIS 23

At trial, the prosecution introduced evidence under

California Penal Code § 190.3(b) showing that Jurado aided

and abetted an assault that occurred while Jurado was in jail

by instigating other inmates to attack Steven Baldwin for

being a snitch. The attack resulted in Baldwin losing

consciousness, and a physician testified as to the injuries

Baldwin suffered as a result.

Jurado claims that the trial court’s failure to instruct the

jury sua sponte on the law of assault and aiding and abetting

liability left the jury to consider whether Jurado had aided and

abetted assault without having a legal framework to rely

upon, which in turn, caused the jury to find an

unconstitutionally vague aggravating circumstance in

violation of due process. Alternatively, he asserts that

counsel’s decision to withdraw the request for instruction on

this issue amounted to ineffective assistance of counsel, in

violation of Jurado’s Sixth Amendment right to counsel.

“The burden of demonstrating that an erroneous

instruction was so prejudicial that it will support a collateral

attack on the constitutional validity of a state court’s

judgment is even greater than the showing required to

establish plain error on direct appeal.” Henderson v. Kibbe,

431 U.S. 145, 154 (1977). “The question in such a collateral

proceeding is ‘whether the ailing instruction by itself so

infected the entire trial that the resulting conviction violates

due process,’ not merely whether ‘the instruction is

undesirable, erroneous, or even universally condemned.’” Id.

(quoting Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)). 

Further, “[a]n omission, or an incomplete instruction, is less

likely to be prejudicial than a misstatement of the law.” Id.

at 155.
24 JURADO V. DAVIS

The trial court’s sua sponte failure to instruct on aiding

and abetting assault fails to satisfy this demanding standard. 

There is no evidence that the omission of a specific

instruction addressing aiding and abetting assault—one of

four nonadjudicated criminal acts the prosecution presented

separate and apart fromthe aggravating circumstances related

directly to the murder—“so infected” the sentencing

proceeding such that Jurado’s sentence violates due process. 

The jury was still instructed that it could not consider prior

criminal activity alleged in aggravation unless it was

convinced beyond a reasonable doubt that Jurado had

engaged in that activity; sufficient evidence was presented at

trial regarding the Baldwin assault such that the jury could

reasonably reach that conclusion.

Jurado also has not shown that the California Supreme

Court’s rejection of the ineffective assistance of counsel

claim was unreasonable. Even assuming that counsel’s

failure to request the instruction constituted ineffective

assistance, Jurado cannot demonstrate prejudice because the

state court reasonably could have concluded that the evidence

of aiding and abetting was overwhelming.

H

The California Supreme Court’s rejection of Jurado’s

ineffective assistance of counsel claimbased on his attorney’s

concession that Jurado intentionally killed Holloway was not

contrary to or an unreasonable application of clearly

established federal law.2, 3

2 To the extent Jurado challenges counsel’s failure to investigate

Jurado’s LSD use, we decline to address his arguments. Jurado raised

these claims only in the context of Claim 1.D in of his Second Amended
JURADO V. DAVIS 25

During voir dire, defense counsel conceded Jurado’s

involvement in killing Holloway. In his guilt phase opening

statement, counsel also conceded Jurado’s involvement in the

killing—stating that Jurado killed Holloway in a manner that

suggested rage resulting from the use of methamphetamine,

as opposed to a manner that suggested premeditation and

deliberation—and he argued that he would request a verdict

of less than first degree murder. In support of this argument,

counsel put on evidence at the guilt phase regarding Jurado’s

methamphetamine use, including the presence of

methamphetamine in his system at the time of the murder—

although there was evidence that suggested that Jurado likely

ingested the methamphetamine days before the crime.

Trial counsel requested a jury instruction addressing the

effect of voluntary intoxication on specific intent. At the

time, voluntary intoxication was a defense to first and second

degree murder. Cal. Penal Code § 22(a), (b); People v.

Whitfield, 7 Cal.4th 437, 450–51 (1994). The trial court,

however, refused to give the instruction because it concluded

counsel had set forth insufficient evidence establishing that

Jurado was intoxicated by methamphetamine or any other

substance at the time of the murder.

During guilt phase closing arguments, counsel told the

jury that Jurado committed second degree murder. He argued

Petition, but this claim was not certified on appeal by the district court,

and Jurado has not requested that we expand the COA to consider that

claim now.

3

Jurado raised this claim in his 2010 state habeas petition, and the

California Supreme Court denied it on the merits without explanation and

also concluded it was barred as untimely and successive.
26 JURADO V. DAVIS

that Jurado had only committed second degree murder, and

not first degree murder, because he killed Holloway in an

unplanned struggle in the car that got “out of hand.”

In assessing allegedly deficient performance under

Strickland v. Washington, 466 U.S. 668 (1984), we are

required “to affirmatively entertain” the range of possible

reasons counsel might have proceeded as he did. Cullen v.

Pinholster, 563 U.S. 179, 196 (2011). Strickland applies a

strong presumption of effective assistance of counsel, a

reviewing court must be highly deferential to the judgment

below, and wide latitude is given to defense counsel in

making tactical decisions. 466 U.S. at 689. “[I]f counsel’s

strategy, given the evidence bearing on the defendant’s guilt,

satisfies the Strickland standard, that is the end of the matter;

no tenable claim of ineffective assistance [will] remain.” 

Florida v. Nixon, 543 U.S. 175, 192 (2004).

Jurado has failed to show that trial counsel’s actions were

objectively unreasonable such that counsel’s performance

was constitutionally deficient under Strickland. Defense

counsel’s decision to concede second degree murder at the

cost of the voluntary intoxication defense was not objectively

unreasonable under the circumstances. Even though counsel

had presented evidence that theoretically laid the foundation

for the voluntary intoxication defense, that evidence was so

unpersuasive that the trial judge refused to instruct the jury on

it. At that point, it would have been unreasonable for counsel

to continue making decisions based on a likely-unsuccessful

defense. Considering the possible tactical reasons that

counsel chose to concede this point, it was not objectively

unreasonable for him to do so in order to bolster his

credibility with the jury, or alternatively, to do anything to

discourage a jury verdict of first degree murder.
JURADO V. DAVIS 27

Jurado’s argument that defense counsel’s failure to

prepare and present evidence in support of the voluntary

intoxication case amounted to deficient performance is

likewise unpersuasive. Jurado has not explained with any

level of specificity how counsel’s investigation into the

methamphetamine intoxication issue was inadequate. 

Moreover, he does not cite any other available evidence that

could have been discovered or presented in support of that

defense. The best evidence supporting the defense—the

results of the blood and urine tests from Jurado’s arrest—was

presented at trial. That evidence suggested only that Jurado

had ingested methamphetamine at some point in the days

before his arrest, and no evidence established that Jurado had

in fact ingested methamphetamine the day of the murder or

that he was intoxicated at the time of the murder. If anything,

the evidence of intoxication was so thin that counsel might

have considered not presenting it at all; there was no reason

counsel needed to exert additional effort in its presentation,

and an expert testifying to the effects of intoxication on the

brain—without additional evidence of Jurado’s actual

intoxication—would not have been useful. Thus, this

argument does not support Jurado’s claim of deficient

performance.

Jurado’s claimthat counsel’s concession regarding second

degree murder gratuitously helped the prosecution also does

not amount to deficient performance. Although conceding

second degree murder necessarily conceded a number of the

elements of first degree murder, it was not unreasonable

given the circumstances. By the time Jurado’s case went to

trial, most of the material elements of both second and first

degree murder had been established; an abundance of

evidence demonstrated that Jurado had killed Holloway—the

primary issue was Jurado’s culpability for the killing.
28 JURADO V. DAVIS

Although a criminal defendant has a Sixth Amendment

right to decide whether to maintain his innocence, see McCoy

v. Louisiana, 138 S. Ct. 1500, 1509 (2018), “[w]hen counsel

informs the defendant of the strategy counsel believes to be

in the defendant’s best interest[,] and the defendant is

unresponsive, counsel’s strategic choice is not impeded by

any blanket rule demanding the defendant’s explicit consent.” 

Nixon, 543 U.S. at 192. Here, there is no evidence Jurado

opposed this strategy; therefore, counsel’s tactics did not run

afoul of Nixon or McCoy.

I

The California Supreme Court’s rejection of Jurado’s

claim of ineffective assistance of counsel at the penalty phase

was not contrary to or an unreasonable application of clearly

established federal law. Jurado argues that his counsel should

have presented evidence of: (1) family background and

social history; (2) depression, polysubstance abuse, and

addiction; (3) decompensation and homelessness;

(4) psychological and emotional immaturity; and (5) exposure

to toxins as a child. 

However, we need not reach the issue of whether

counsel’s performance was deficient, as Jurado has not

adequately established that any of counsel’s alleged

deficiencies resulted in prejudice within the meaning of

Strickland. To establish prejudice under Strickland, a

petitioner must “show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.” 466 U.S. at 694. Here, the crime itself was

brutal and premeditated. Jurado killed in order to facilitate a
JURADO V. DAVIS 29

second murder. The prosecution presented substantial

evidence in aggravation, including evidence of Jurado’s

felony conviction, assaults against his own mother, and the

victim’s pregnancy. The evidence Jurado claims should have

been introduced was not so different in quality or kind that it

would have necessarily shifted the jury’s view of Jurado as an

individual or his responsibility for the killing. The jury knew

Jurado had a difficult childhood and home life, they knew he

had a strained relationship with his father, they knew that he

was a regular drug user, they knew he was twenty years old. 

Given these factors, Jurado has failed to establish a 

“reasonable probability that . . . the result of the proceeding

would have been different.” Id.

J

The district court did not abuse its discretion in denying

Jurado’s request for evidentiary development, discovery, and

an evidentiary hearing. If a claim has been adjudicated on the

merits in state court, a federal habeas petitioner seeking

discovery or an evidentiary hearing must first overcome the

relitigation bar of § 2254(d)(1) and (d)(2) based solely on the

record that was before the state post-conviction court. See

Pinholster, 563 U.S. at 181 (“[R]eview under § 2254(d)(1) is

limited to the record that was before the state court that

adjudicated the claim on the merits.”). “Where a habeas

petitioner has not failed to develop the factual basis of his

claim as required by 28 U.S.C. § 2254(e)(2), an evidentiary

hearing is required if (1) the petitioner has shown his

entitlement to an evidentiary hearing pursuant to Townsend

v. Sain, 372 U.S. 293, 313 (1963), and (2) the allegations, if

true, would entitle him to relief.” Hurles, 752 F.3d at 791.
30 JURADO V. DAVIS

Jurado has not demonstrated that any of his claims

survive the § 2254(d) relitigation bar on the basis of the

record before the state court; therefore, the district court

properly considered only the state court record in reviewing

Jurado’s claims for relief. See Sully v. Ayers, 725 F.3d 1057,

1067 n.4 (9th Cir. 2013). As these claims had not stated even

a prima facie claim for relief, evidentiary development was

not necessary for the district court to deny them.

Additionally, because both the California Supreme Court

and the district court addressed the merits of Jurado’s claims

without regard to any procedural defaults, the independence

and adequacy of any procedure bars is not at issue, and any

argument under Martinez v. Ryan, 566 U.S. 1, 13–14 (2012)

is moot. Therefore, there was no need to develop additional

evidence related to Martinez cause and prejudice.

In sum, the district court did not abuse its discretion in

denying Jurado’s requests for evidentiary development and an

evidentiary hearing.

III

The district court properly denied Jurado’s petition for a

writ of habeas corpus in thoughtful, detailed opinions. It

properly concluded that the California Supreme Court’s

decisions were not (1) contrary to, or involved an

unreasonable application of, clearly established federal law,

as determined by the Supreme Court, or (2) resulted in a

decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding. 28 U.S.C. § 2254(d). The district court did not

abuse its discretion in denying requests for an evidentiary

hearing and related relief.
JURADO V. DAVIS 31

We affirm the judgment of the district court.

AFFIRMED.