FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

R O B E R T JUR AD O , Petitioner-Appellant
,

v

.

R ON ALD D A VI S , W arden, 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. Samm artino, District Judge, Presiding

Argued and Subm itted June 23, 2021 Pasadena, California

F iled September 10, 2021

Before: Sidney R. Thom as, Chief Judge, and Susan P. Graber and Richard R. Clifton, Circuit Judges.

Opinion by Chief Judge Thom asJUR AD O V

. D A

VI S 2

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirm ed the d istrict court’s judgm ent denying Robert Jurado’s habeas corpus petition challenging his firstdegree murder conviction and death sentence.

The panel held tha t th e C alifornia Suprem e Court’s conclusion that the Double Jeopardy Clause did not bar further prosecution of Jurado was not an unreason able applicat i o n of clearly established f ederal law o r an unreasonable determ ination of the f acts with i n the m eaning of 28 U.S.C. § 2254(d). After Jurado’s indictm ent, the state trial co urt granted Jurado’s m otion to set aside the lying-inwait special circum stan ce based on insufficiency o f the evidence, and Jurado pleaded guilty to all pe n d i ng charges. The C alifornia C ourt of Appeal held th at the special circum stance had been im properly dism issed
, and that the double jeopardy bar posed n o bar to its reinstatem ent, relying

on Ohio v. Johnson
, 4 6 7 U.S. 493 (1984). The California Suprem e C ourt denied Jurad o ’ s p etition for review. Jurado then withdrew his guilty plea, entered a plea of not guilty, and

was convicted at trial. The panel wro t e that, as in Johnson
, the Double Jeopardy Clause is not im plicated because Jurado

was not subject to m

u ltiple punishm ents for the sam e offense, and the special circum stance was an included part and parcel of the initial prosecution.

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.JUR AD O V

. D A

VI S 3

The panel held that the Californi a Sup rem e Court’s conclusion that the adm ission at trial of the videotaped conditional exam ination of Brian Johnsen (the victim ’s boyfriend at the tim e o f her m urder) did not violate Jurado’s rights to d

ue process and to a reliable penalty determ ination

was not an unreasonable determ ination of the facts w ithin the

m eaning of 18 U.S. C. § 2254(d)(2), where the prosecutor subm itted 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-exam ine Johnsen during the conditional

exam ination.

The panel held that the California Suprem e Co urt ’s conclusion that Jurado’s constitu t ional rights were not violated by Steven Baldwin’s testim ony regar d i n g Denise S h igem ura’s o ut-of-court statem ents was no t an unreaso n ab le determ ination of the facts or an unreasonable applica t i o n o f clearly established facts. The panel wrote that the California Suprem e Court did not rely on an unreasonable determ ination

o f the facts or an unreasonable application of clearl y established fe de r a l law in concluding that the trial court’s adm ission of Shigem

ura’s pre-crim e stat e me n t am ounted to harm less error, or that her post-crim e statem ent was properly

a dm itted as an adoptive adm ission. The panel wrote th at adm ission of the p o st-crime statem ent likewise did not violate Jurado’s clearly established Confrontation Clause rights.

The panel held that the California Suprem e Co urt ’s conclusion that the trial court’s penalty-phase exclu s i on o f Jurado’s videotaped confession to police officers did not violate Jur a do ’s right to a fair trial and reliable p enalty determ in ati o n , b e c aus e c api t a l d efendants have no constitutional right to the adm ission of evide nc e lacking
tru stw o r th i n ess, d id n o t rest on an unreaso n ab le d etermin atio nJUR AD O V

. D A

VI S 4

of th e facts or an unreasonable application of clearly established federal law.

The panel held that the Ca l i fornia Suprem e Court’s conclusion that the adm ission at the p enalty phas e th at the victim wa s s ev enteen weeks pregnant at the tim e she was killed did not violate Jurado’s c o n s t itutional to right to a fundam entally fair sentencing hearing was not contrary to, o r an unreasonable application of, Suprem e Court precedent.

The panel held that the Californi a Sup rem e Court’s conclusion that Jurado’s rights to due process, a f air p enalty trial, and a reliable se n tence were n ot violated by the adm ission of evidence concerning Jurado’s prior incidents o f violence was not contrary to and did not in v ol v e an unreasonable application of clearly established federal law.

The panel held that the California Suprem e Co urt ’s rejection of Jurado’s challenge t o the jury instructions was not contrary to or an unreasonable application of clearly established federal law. The p anel 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 s e n t e ncing proceedings such that Jurado’s sentence violates due process. The p anel wrote that even assum ing that counsel’s failure to request the instruction constituted ineffective assistance, Jurado cannot dem onstrate prejudice because the state court reasonably could have concluded that the evidence of aiding and abetting was overwhelm ing.

The panel held that the Californi a Sup rem e Court’s rejection of Jurado’s ineffective assistance of counsel claim based on his attorney’s concession that Jurado intentionallyJUR AD O V

. D A

VI S 5

killed the victim was not contrary to or an unreasonable application of clearly established federal law.

The panel held that the Ca l i fornia Suprem e Court’s rejection o f Jurado’s claim of ineffective assistance o f counsel at the pena l ty phase was n ot contrary to or an unreasonable application of clearly established federal law. The panel did not need to reach the iss u e o f whether counsel ’ s p erform ance was deficient, as Jurado has not adequately established that any of counsel’s alleged deficiencies resulted in prej u dice within the m eaning o f 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 developm ent, discovery, and an evidentiary hearing.

C OUNSEL

Stephen M. Lathrop (argued), Lathrop & Villa, Rolling H ills Estates, California; Robert E. Boyce (argu e d )
, B oyce & Schaefer, San Diego, California; for Petitioner-Appellant.

Marvin E. Mizell ( arg ued) and Ronald A. Jakob, D eputy Att orneys General; Ronald S. Matthias, Senior Assistant Attorney Gene r a l; Rob Bonta, Attorney General; Attorney General’s Office, San D iego, C alifo rn i a; for RespondentAppellee.JUR AD O V

. D A

VI S 6

OPINION

THOMAS, Chief Judge:

Robert Jurado, a California inm ate on death row, appeals the district court’s denial of his petition for writ of habeas

c o r pus. W e review de novo a district court’s denia l o f a habeas corpus petition and review for clear error any factual findings m ade by the district court. Hurles v. Ryan
, 752 F.3d 768, 777 (9th Cir. 2014). W e 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 Jur ado’s petition was f iled in the district court after the effective date of the Antiterrorism an d Effe ctive Death Penalty Act of 1 996 (“AEDPA” ), “we m ay grant habeas relief o n l y if the state court’s decision (1) ‘was contrary to, or in v olved an unreasonable application of, clearly established federal law, as determ ined b y the Suprem e Court

. . . ; or (2) resulted in a d ecision that was based o n an unreasonable determ ination of the facts in light o f the evidence presented in the State court p roceeding.’” Davis v. Woodford
, 384 F.3d 6 28, 6 37 (9th Cir. 2004)(quo t ing 28 U.S.C. § 2254(d)).

“A state court decision is ‘contrary to’ clearly established Suprem e Court precedent if the state court applies a rule that contradicts the governing law set forth in Suprem e Court

cases or if the state court confronts a set of facts m aterially indistinguishable from those at issue in a decision of th e Suprem e Court and, nevertheless, arrives at a result different from its precedent.” Lambert v. B lodgett
, 393 F.3d 943, 974 (9th Cir. 2004). A state court’s d ecision is an “unreasonable application” of federal law if it “identifies th e correctJUR AD O V

. D A

VI S 7

governing legal principle from [ the Suprem e] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer v. Andrade
, 538 U.S. 6 3, 75 (2003) (quotations and citation om itted). The Suprem e Court has explained that the exceptions base d on “clearly established” law refer only to “the holdings, as opposed to the dicta, of th[e] Court’s decisions as of the tim e of the relevant
state-court decision.” (Te rr y) Williams v. Taylor
, 529 U.S. 362, 412 (2000).

W ith respect to § 2254(d)(2) claim s, “a state-court factual determ ination is n o t unreasonable m erely 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 m inds reviewing the record m ight disagree’ about the finding in question, ‘on habeas review that does not suffice to supersede the trial court’s

. . . determ ination.’” Id. (quoting Rice v. Collins , 546 U.S. 333, 341–42 (2006)).

“[E]ven a strong case for r e l i e f d o es not m ean the state court’s contrary conclusion was unreasonable.” Harrington

v. Richter
, 5 62 U.S. 86, 102 (2011). “If this standard is difficult to m eet, that is because it was m eant to be.” Id. A s

am ended by AEDPA, § 2254(d) “preserves authority to issue the writ [only] i n c a ses where there is no possibility fairm in d ed jurists could d isagree that the state court’s decision conflicts w ith [Suprem e Court] precedents. It goes

no f urther.” Id. Un de r AEDPA, then, habeas corpus is a guard only “against ex tr e me m alfunctions in the state crim inal justice system s,” and is not a m eans f or “ordinary

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

v. Virginia
, 4 43 U.S. 3 07, 332 n.5 (1979) (Stevens, J., concurring in judgm ent)).JUR AD O V

. D A

VI S 8

Applying these standards, we affirm the judgm ent of the district court.

I

On May 17, 1991, Teresa H olloway’s body was found off of Highway 163 in San D iego C ounty. The cause of death

was determ ined t o be “blunt force head injuries and strangulation.”

According to the evidence adduced at trial, Petitioner Robert Jurado and his roomm ate, Denise Shigem ura, hatched

a plan to kill a drug dealer nam ed Doug Mynatt, with whom the two had an o n going dispute. Jurado and Shigem ura becam e concerned that their acquain t ance and Mynatt’s form er roomm ate, Teresa Holloway, w ould reveal their plan. Jurado, Shigem

ura, and Jurado’s girlfriend, Anna Hum iston, apparently killed Holloway in a car by strangling her with an 18-inch weed-eating cord and b e ati ng her with the car’s scissor-jack. Jurado w as interviewed by police soon after the

m urder, and he confessed to killi n g Holloway, cooperated with law enforcem ent, an d t o ok police to the scene of the crim e where they located the tire jack.

Jurado w as indicted on one count of conspiracy to comm it

m urder and one count of first degree m urder comm itted while lying in w ait
, a special circum stance that m ade him eligible for the death penalty. Jurado was tried separately from his co-defendants, Shigem

ura and Hum iston. The jury convicted him of first degree m

urder and determ ined that death w as the appropriate penalty. After denying a m otion for n ew trial and
t o m odify the verdict, the trial court sentenced Jur a d o t o death.JUR AD O V

. D A

VI S 9

The California Suprem e C ourt affirm ed the judgm e n t in People v

. Jurado
, 38 Cal. 4th 72 (2006). Jurado petitioned fo r wr i t of certiorari, and the Suprem e Court of the United States denied Jurado’s petition in Jurado v

. Ca l ifornia
, 549 U.S. 9 5 6 (2006). While his direct appeal wa s pending, Jurado filed a state habeas petition in the California Suprem e Court, which was denied without an evidentiary hearing.

Jurado’s first federal habeas p etition was stayed in order
to allow him to exhaust his claim s in state court. The Cal i fornia S uprem e Court subsequently denied his second state petition.

The district court denied h abeas relief on Jurado’s second

am ended federal habeas petition, and also denied h is m otions f o r inv estig atio n , ev id entiary d ev elo p m ent, an d an ev id e nt i a r y hearing. The d istrict court subseque n t l y issued a certificate of appealability, and stayed execution pending appeal. This tim ely appeal followed.

II

A

The Ca lifornia Suprem e Court’s conclusion that the Double Jeopardy Clause d id not b ar further prosecution o f Jurado was not an unreasonable applicat i o n of clearly established federal law or an unreasonable determ ination o f the facts within the m eaning of § 2254(d).

After Jurado’s indictm ent, the state tr i al court granted Jurad o ’s m otion to set aside the special circum stance based

on insufficiency of the evidence, and Jurado imm ediately pleaded guilty to all pending charges. The prosecutorJUR AD O V

. D A

VI S 10

acknowledged that Jurado “can plead to the face at any tim e,” but indicated that “the People would not be signing the change of p lea form ,” and specified that “there’s a possibility tha t the People m ay take a writ on the ruling by the court.” Additionally, the prosecutor n oted that he “wanted counsel to be aware that the plea could conceivably be set aside at a later tim e depending on how that procedure goes.”

The following m o n th, the p rosecution sought reinstatem ent of th e special circum stance allegation in the California Court o f Appeal. People v. Superior C ourt (Jurado)
, 4 Cal. App. 4th 1217 (1992). The C ourt of Appeal held that the special circum stance had been im properly dism issed. See id. at 1229. The Court of Appeal further held that double jeopardy posed no bar to the reinstatem ent of the special circum stance, rel y ing on Ohio v. Johnson
, 467 U.S. 493, 5 00

– 0 2 (1 984) (holding double jeopardy did n ot bar prosecution of m ore serious crim es when defendant pleaded
to less serious crim es). Id. at 1229–30. The California Sup r em e Court denied Jurado’s petition for review, an d Jurado withdrew his guilty plea and entered a plea of not guilty. Jurado raised this issue again on direct appeal, and the California Suprem e Court rejected it, relying on Johnson

.

In Johnson
, the defendant w as indicted on o ne count o f

m urder, one count of involuntary m anslaughter, one count o f aggravated robbery, and one count of grand theft. Id. at 495. At his arraignm ent, the defendant o ffered to plead guilty to the involuntary m anslaughter and grand theft charges, and despite the prosecutor’s objection, the trial court accepted the guilty p leas and sentenced the defendant to a term o f im pri so nm e nt. Id. at 496. The defendant subsequently requested that the trial court dism iss th e mur d er and aggravated robbery charges on the g round that in voluntaryJUR AD O V

. D A

VI S 11

m anslaughter and grand theft were lesser included offenses,

and that the continued prosecution of the greater o ffe n s e s after acceptance of the defendant’s guilty pleas on the lesser offenses was barred by the D ouble Jeopardy Clause. Id. The
tr i a l court dism issed the charges and the O hio C ourt of Appeals and the Ohio Suprem e C ourt affirm ed because under Ohio l aw, a defendant can only be found guilty of either

m urder or involuntary m anslaughter (but not both), and either
aggrava t e d robbery or grand theft (but not both). Id. at 496–97.

The S uprem e Court reversed. It concluded that, contrary to the Ohio Suprem e Court’s determ ination, the case did not

concern the double jeopardy protection prohibiting m u ltiple punishm ents for the sam e offense. Id. at 497. It f ound that the “trial court’s dism issal of [the] m ore serious charges did

m ore than sim

ply p r event the im

position of cum

ulative punishm ents; it halted co mpletely the proceedings that ultim ately would have led to a verdict of guilt or innocence

on [those] m ore serious charges.” Id. at 499–50. This went beyond the Double Jeopardy C lause’s “principles o f finality and prevention of prosecutorial o verreaching,” id. at 5 01, and “den[ied] the State its right to one full and fair opportunity to convict those who have violated its laws.” I d. at 502. The Court stated that n o interest protected by the Double Jeopardy Clause was im

plicated by cont i nuing prosecution on the

rem aining charges where the d efendant o ffered only to resolve part of the charges against him and the state objected
to d isposing of any o f the charges without a trial. Id. at 501. And it ultim ately held that “the D ouble Jeopardy Clause [did]
not prohibit the State from continuing its prosecution o f respondent o n the charges o f m urder and aggravated robbery.” Id. at 502.JUR AD O V

. D A

VI S 12

A substantially sim ilar situation is pr e s e n t e d here. The
state trial court dism issed the special c i r cum stance, and Jurado unconditionally pleaded gu ilty to the rem aining char ges. The State appealed. Applying Johnson
, the Ca l i fornia Court of Appeal allowed reinstatem ent of th e special circum stance, and Jurado withdrew his g uilty plea. As in Johnson
, the Double Jeopardy Clause is n ot im plicated because Jurado was n ot subject to m u ltipl e p un ishm ents for the sam e o ffense. Moreover, on direct appeal, the California Suprem e Court specifically f ound that the prosecutor had not acquiesced in Jurado’s plea, and accordingly, Jurado’s case

was indistinguishable from Johnson

. J u rado
, 38 Cal. 4th at 97.

Jurado argues that Johnson does not apply because m ore serious char ges did not rem ain p ending against h im at the tim e he pleaded guilty. However, Johnson explained that where m ultiple charges are “em braced within a singl e prosecution,” they are not “capable of being infinitely subdivided” such tha t “a determ ination of guilt and punishm ent on one count of a m ult i c ount indictm ent immediately raises a double jeopardy bar to continued prosecution on any rem aining counts that are greater or lesser included o ffenses of the charge just concluded.” Johnson
, 467 U.S. at 501. Regardless of th e tim ing o f Jurado’s plea, this is the sam e course of ev en t s th at occurred in his prosecution—the special circum stance was an included part and p arcel of the i n itial prosecution—and the California Suprem e Court was not unreasonable in c oncluding that the rationale in Johnson applied to Jurado’s case.

Jurado also attem

pts to distinguish Johnson becau s e the
p ro s e cutor in this case d id not explicitly object to his pl e a. However, the California Suprem e Court’s conclusion that theJUR AD O V

. D A

VI S 13

prosecutor’s actions in this case were equivalent to an objectio n wa s not objectively unreasonable, as it was clear that the p rosecution was opposed to the guilty plea and wanted to p ursue prosecution of the special c i rc um stance allegation. In sum , the district court correctly concluded that the California Suprem e Court’s d eterm ination that Johnson ’s holding controlled was not unreasonable. 1

B

The California Suprem e C ourt’s conclusion that Jurado’s rights to d

u e process and a reliab l e p e nalty determ ination

were not violated by the adm ission at trial of Brian Johnsen’s videotaped conditional exam ination was not an unreasonable determ ination of facts within the m eaning of § 2254(d)(2).

The stat e tr ial court perm itted the prosecution to play Johnsen’s videotaped conditional exam ination at trial, after specifically finding that Johnsen’s life would be in jeopardy if he w ere to testify at trial. Johnsen, who was Holloway’s boyfriend at the tim e o f her m urder, testified that Mynatt h ad previously ki dn ap p ed and threatened to kill Jurado, and he explained details about the conspiracy to k i ll Mynatt. Johnsen also discussed his telephone conversation fro m j a il with Holloway the day she was kil l e d

. Jurado’s counsel

c r o s s

- e x a mi n e d J o h n s e n thr o u g h out th e co n d i t i o n al

exam ination.

1 Because t

he California Suprem e Court’s decision r ested o n application of Johnson , we need not and do not reach Jurado’s argum ent regarding whether the special circ um s t ance w as a different offense or a greater elem ent of capital murder.JUR AD O V

. D A

VI S 14

On appeal, the California Suprem e Court concluded that, with respect to Johnsen’s conditional exam ination, the prosecutor satisfied the requirem ents o f Californi a Pe n al Code § 1 335(b) and § 1336(b) by subm itting a declaration stating that Johnsen’s life was in d anger from Mynatt, Jurado, and Jurado’s co-defendants and associates. J u ra d o , 38 Cal. 4th at 114. The court also concluded that since Jurado had a full and fair opportunity to cross-exam ine Johnsen during his conditional exam ination, h i s constitutional rights were not violated. Id. at 115.

“[A] decision adjudicated on the m e r i ts in a state court

an d b a s ed on a factual determ ination w ill not be o verturned

on factual grounds unless o bjectively unreasonable in light o f the evidence presented in the state

- c o urt proceeding, § 22 5 4 ( d )(2).” Miller-El v. Cockrell
, 537 U.S. 322, 340 (2003). Additionally, the adm ission of particular evidence provides a basis for habeas relief only when it “render[s] the trial fundam entally unfair in violation of due process,” Holley

v. Yarborough
, 568 F.3d 1091, 1 101 (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 determ ine, on the basis of the prosec ut o r’s declaration, that J ohn s e n’s life would be at risk if he testified. As dem onstrated by the circum stances of the case, both Mynatt and Jurado and his associates would b e highly m otivated to kill or harm Johnsen—a direct threat was not necessary to draw this inference. Moreover, the adm ission of the conditional evide n ce did not violate Jurado’s rights to d ue process or a r e l i able penalty determ ination because, as the California Suprem e Court h eld, Jurado and his counsel had a full and f air opportunity to cross-exam ine Johnsen during the conditional exam ination. Jurado , 38 Cal. 4th at 115.JUR AD O V

. D A

VI S 15

C

The California Suprem e Court’s conclusion that Jurado’s constitutional rights were n ot violated by Steven Baldwin’s testim ony at trial regarding Denise S higem ura’s out-of-court
statem ents was not an unreasonable determ ination o f the facts

or an unreasonable application of clearly established federal law.

Baldwin testified that Shigem ura cam e over to his h ouse

a couple days before the m urder. Shigem

ura 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 m urder, he let Jurado, Shigem ura, and Mark Schm idt into his h om e. Baldwin testified that, while in Jurado’s presence, Shigem ura, sitting
next to Jurado on the couch, told Baldwin, “I no longer need what it was I asked y ou for. W e took care of the problem and

we dum ped the body at B alboa Park.” Jurado rem ained silent during and after this statem ent was m ade. The trial court held that the stateme n t wa s adm issible as an adoptive adm ission by Jurado, and S higemura ’s earlier statem ent requesting a “gat” was adm issible as a co-conspirator statem ent.

The California Suprem e Court held that the trial court correctly adm itted Shigem ura’ s statem ent to Baldwin in Jurado’s presence as an adoptive adm ission. Jurado
, 3 8 Cal. 4th at 116–17. The court concluded that Shigem ura’s request for the “gat” was not hearsay b ecause “a request, by i t se lf, does not assert the truth of any fact, [and] it cannot be offered
to prove the truth of the m atter stated,” b ut that the statem ent “was hearsay insofar as it asserted that Sh i g e mura had a p roblem that she n eeded to take care o f.” Id. at 117. Th e court also concluded that Jurado suffered no prejudi ce as aJUR AD O V

. D A

VI S 16

result of the adm ission of the pre-crim e statem ent because the substance of that statem ent was repeated in the post- c r i m e statem ent m ade in Jurado’s presen c e and which Jurado adopted through his conduct. Id. at 118.

The California Suprem e Court’s conclusion that the trial

c o u r t ’ s a d m i s s i o n o f S h i g e m u r a ’ s p r e

- c r i m e statem ent—asking Baldwin if he had a “gat” and explaining that she had a problem she needed to take care of—am ounted
t o harm less error did not rest on an unreaso nab le determ ination of the facts or an unreasonable applica t i o n o f clearly e stablished 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, 2 69 (2015) (quotations and citation o m itted). The st ate court’s harm lessness determ ination was not unreasonab le here because th e substance of the pre-crim e statem ent was repeated in the post-crim e statem ent. Thus, even if the prec r i me statem ent had not been adm itted at trial, the jury still would have known that Shigem ura previo us l y indicated to Baldwin that she had a p r o b lem she needed to take care o f and that she (and Jurado) subsequently took care of that problemby dum

ping a body in Balboa Park.

The California Suprem e C ourt decision also did not rely

on an unreasonable dete rm ination of the facts o r an unreasonable application of clearly established law in concluding th at Shigem ura’s post-crim e statem ent was properly adm itted as an a d o p t i ve adm ission. Shigem ura’s post-crim e statem ent—“I no longer need what it was I asked
you for. W e took care of the problem an d we dum p ed the body at Balboa Park”—accus e d Jurado of comm itting a crim e, in particular, because of her use of “we” and because of her locati o n n e xt to Jurado on a couch. There is noJUR AD O V

. D A

VI S 17

indication that Jurado could not hear S higemura’s statem ent,

or that he did not understand that she was im plicating him in the crim e d escribed. Therefore, h e should have been

com pelled to reply or object if Shigem ura’s s t atem ent was incorrect, and it was not “objectively unreasonable” for the
state court to construe his silence as an ado p tive adm ission. Miller-El
, 537 U.S. at 340. As the statem e n t wa s p roperly adm itted as an adoptive adm ission, it did not cause the trial to be “fundam ent a lly unfair,” in violation of due p rocess. See Holley
, 568 F.3d at 1 10 1 ; see also E stelle v. McGuire
, 502 U.S. 62, 6 7

– 68 (1991). Likewise, its adm ission did not violate Jurado’s clearly established Confrontation Clause rights. The Sixth Am endm ent’s C onfrontati o n Clause protectio n s f

o cu s o n testimo n ial statements, or statem ents that “bear testim o ny.” See Crawford v. Washington
, 541 U.S. 36, 51–53 (2004). Suprem e Court precedent, however, h as yet to address whether adoptive adm issions are testim onial
statem ents that f

all with in the Confrontation C lause’s protections.

D

The California Suprem e C ourt’s conclusion that Jurado’s constitutional rights were not violated by the trial court’s exclusion of his videotaped confession at the p e na l ty phase does not warrant relief under § 2254(d).

During the penalty p hase, defense co un sel so u g ht to ad m it

a videotape of the confession Jurado gave to police officers. During the interrogation, Jurado wept as he adm itted he “did it,” and when the detectives asked if Jurado knew Holloway

wa s still alive when he dum ped her in a ditch, he s a id
, “ I don’t know. Only G od k nows that, m an.” Wh en the det ectives asked if Jurado sustained any injuries during theJUR AD O V

. D A

VI S 18

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

my conscience.” The d efense asserted this evidence o f

rem orse was needed to rebut the prosecution’s evidence that after Jurado was arrested
, h e called Christine Medlin and sang

som ething like “On, on, the bitch is gone” to the tune o f 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.”

Th e trial court refused to adm it the videotape because i t determ ined that, un der Green v. Georgia
, 442 U.S. 95 (1979), the statem ents m ade on the confession tape were inadm issible hearsay, and that no applicable hearsay exception applied. It further concluded that, as to the n on-ass e rt ive em otions

c o n tained in the tape, there was no com pelling need fo r th e evidence, and no s ub s tantial evidence of inherent trustworthiness or reliability. The trial court noted that “nowhere does [Jurado] expressly art i c u l ate any em otion, if
you w ill, or conce rn or rem o rse about the v ictim o r her fam ily,” and instead, he o nly “express[ed] concern about not wanting to go to jail, not wanting to be labe led as a snitch,” or other fears that he or his fam ily m ight be harm ed.

The California Suprem e Court held the trial court ’s exclusion of the interrogation did not violate Jurado’s right
to a fa i r tr ial and reliable penalty d eterm ination because capital defendants have no co n s titutional right to the

a dmission of evidence lacking trustworthiness. Jurad o , 38 Ca l

. 4 th at 130. The court held that the trial court h ad correctly determ ined th at the circum stances of the interrogation lacked indicia o f trustworthiness. Id. at 129–30 (citing Cal. Evid. Code §§ 1250 & 1252).

The California Suprem e Court decision did not rely on an unreasonable determ ination of the f acts within th e m eaningJUR AD O V

. D A

VI S 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 unlim ited, but rather is subject to reasonable restrictions.” Unit e d States v. Scheffer
, 523 U .S. 303, 3 0 8 (1998). Such reasonable restrictions m ay include the requirem ent 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

s ought to introduce because “there is sim ply no consensus that polygraph evidence is reliable”). The California Suprem e Court did not unreasonably conclude that the videotaped interrogation lacked persuasiv e assurances o f trustworthiness. T herefore, its d e c ision to affirm the exclusion o f the videotape was not co n tr ary to or an unreasonable application of clearly established federal law.

E

The C alifornia S upr e me Court’s conclusion that Jurado

was not denied his constitutional right to a fundam entally fair sentencing hearing w as n ot contrary to, or an unreasonable application o f Suprem e C ourt precedent. Jurado argues that his right wa s v iolated by the adm ission of evidence at the
p en a l ty phase that H olloway was seventeen weeks pregnant at the tim e she was killed.

The California Suprem e Court affirm ed the adm ission o f the pregnancy evidence at the penalty phase because, unde r Payne v. Tennessee
, 501 U.S. 80 8
, 8 27 (1991), the Eighth Am endm ent “perm its the p rosecution, in a c ap i tal case, to present evidence about the m urder v ictim and th e specific h arm th e defendant caused as relevant to the jury’s penalty decision.” Jurado
, 38 Cal. 4th at 130. The pregnancyJUR AD O V

. D A

VI S 20

evidence was r e l e v ant because the “facts concerning the victim that are adm issi b le at the penalty phase of a capital trial as circ um stances of the crim e are not lim ited to those known to or reasonably foreseeable by the defendan t at the
t i m e of the m

urder.” Id. at 131. It found that the eviden c e

was not unduly prejudicial because, in m urdering Holloway, the “defendant also term inated the life of a healthy 17-weekold fetus she w as carrying,” an d th at this was “part of the harm caused b y defendant’s crim e and thus was a legitim ate, though em otional, consideration for the jury in m aking its penalty decision.” Id. The court a l s o n o t e d that Jurado h ad
not challenged th e manner in which the evidence was presented, and confirm ed that the evidence wa s “not presented in an unnecessarily inflam m atory way.” Id.

The California Suprem e Court correctly concluded that victim impact evidence is p erm issible at sentencing in a capital case. See Payne
, 501 U.S. at 824–25 ( “[A] State m ay properly conclude that f

or the jury to assess m eaningfully the defendant’s m o ral culpability and blam eworthiness, it should have before it at the sentencing phase evidence of the specific harm c aused by the defendant.”). The decision also did not rely on an unreasonable determ ination o f the facts. The state court weighed the im

pact the evidence likely had on the jury, but it reasonably concluded that the p regnancy evidence “was part of the harm caused by defendant’s crim e and thus w as a legitim ate, though em otional, consi d eration for the jury in

m aking its penalty decision.” Jurad o , 3 8 Cal.4th at 131. This determ ination was not objectively unreasonable within the m eaning of § 2254(d)(2).JUR AD O V

. D A

VI S 21

F

The California Suprem e Court concluded that Jurado’s

r i ghts to due process, a fair p enalty trial, and a reli ab le

s en tence were not violated by the adm ission o f eviden c e concerning Jurado’s p ri or incidents o f violence. This determi n ation was not contrary to and did not involve an unreasonable application of clearly established federal law.

At trial the p ro s ec ution introduced evidence of two physical altercations that had taken place between Jurado and his m other, Josephine Jurado. As a result, Josephine applied for a restraining order t o have Jurado rem oved from the house. The application i n d i c ated that Jurado “threatened to obtain weapons during this incident an d s hoot u p [her] house,” “threatened to kill [her],” and “raised his hand as if to strike [her].”

Under California law at the tim e of Jurado’s trial, “[i]f [ a] defendant has b een found guilty of m urder in the first degree, and a special circum stance h as been charged and f ound to be
true

. . . the trier of fact sh a l l d e t e rm ine whether the p enalty shall be death or confinem ent in state prison for a term o f life without the possibility of parole.” Cal. Penal Code § 190.3. In determ ining the penalty, if relevant, the trier of f act “shall take into account” “[t]he presen ce or absence o f crim inal activity by the defendant which involved the use or attem pted

use of f orce or violence or the express or im plied threat to use force o r violence.” Id. § 190.3(b). “A habeas petitioner who challenges a stat e c o urt’s adm ission into evidence o f p rior
acts of m isconduct is not entitled to habeas corpus r e lief unless the state court’s adm ission of this evidence violated
th e petitioner’s federal due process right to a fair trial under the Constitution.” Gordon v. D uran , 895 F.2d 610, 613 (9thJUR AD O V

. D A

VI S 22

Cir. 1990). Sim

ple state law err o r d oes not warrant federal habeas relief. Estelle , 502 U.S. at 67–68.

The adm ission of evidence of prior acts of violence did
not render the penalty phase of Jurado’s trial fundamentally unfair in violation o f due process. The evid e n c e com plied with § 190.3(b)’s requirem ents: Jurado’s conduct amounted to battery and/or assault.

The adm ission o f this evidence also does not run afoul o f Suprem e Court precedent h oldi n g that aggravating circum stances that renders a defendant eligible for the death penalty “m

ust genuinely narrow the class of persons eligible for the death pen a l ty and m ust reasonably justify the im position of a m o re severe sentenc e on the defendant

com pared to others found guilty of m urder.” Zant v. Stephens
, 4 62 U.S. 862, 877 (1983). Here, the evidence was introduced only aft er the jury had already found Jurado eligible for the death p e n alty. Accordingly, the requisite narrowing function had already taken place. See
, e.g. , id. at 878 (“But the C onstitution d oes not require the jury to ignore other possible aggravating factors in the process of selecting, from am o ng [th e class of persons eligible for the death penalty], those defendants who will actually be sentenced to death.”).

G

The California Suprem e Court’s re j e ction 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.JUR AD O V

. D A

VI S 23

At trial, the prosecution introduced evidence under California Penal C ode § 190.3(b) showing that Jurado aided and abetted an assault that occurred while Jurado w as in jail by instigating other inm ates to attack Steven Ba ldwin for being a s n i tch. T h e attack resulted in Baldwin losing consciousness, and a physician testified as t o the injuries Baldwin suffered as a result.

Jurado claim s th at 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 le g a l fr am ework to rely
upon, which in turn, cau s e d the jury to find an unconstitutionally vague aggravating circum stance in violation o f due process. Alternatively, he asserts that counsel’s decision to withdraw the request for instruction on this issue am ounted to ineffective assistance of coun s e l, in violation of Jurado’s Sixth Am endm ent right to counsel.

“The burden of dem onstrating that an erro n e o u s instruction was so prejudicial that it will support a collateral attack on the constitutional validity o f a s t ate court’s judgm ent is even gre at e r than the showing required to establish p lain error on direct appeal.” H enderson v. Kibbe
, 431 U.S. 145, 154 (1977). “The question in such a collateral
proce ed i n g is ‘whether the ailing instruction by itself so infected the entire trial tha t the resulting conviction v iolates due process , ’ not m erely whether ‘the instruction is undesirable, erroneous, or ev en universally condemned.’” Id. (quoting Cupp v. Naughten
, 414 U.S. 141, 146–47 (1973)). Further, “[a]n om ission, or an incom plete instruction, is less likely to be p r ejudicial than a m isstatem ent of the law.” Id. at 155.JUR AD O V

. D A

VI S 24

The trial court’s sua sponte failure to instruct on aid i n g and abetting assault fails to satisfy this dem anding standard. There is no evidence that the om i s s i o n of a specific instruction addressing aiding and abetting as s au lt—one o f four nonadjudicated crim inal acts the prosecution p r esented separate and apart from the aggravating circum s tan ces r e lated directly to the m

urder—“so infected” the sentencing proceeding such that Jurado’s sentence violates due process. Th e jury was still instructed that it could not consider p r i o r crim inal activity all e ged in aggravation unless it was convinced beyond a reasonable doubt that Jurado h ad 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 Suprem e Court’s rejection of th e i n e ffective assistance of counsel claim was unreasonable. Even assum ing that counsel’s failure to request the instruction constituted ineffective assistance, Jurado cannot dem onstrate prejudice because the
state court reasonably could have concluded that the evidence of aiding and abetting was overwhelm ing.

H

The California Supr e m e Court’s rejection of Jurado’s ineffective assistance of counsel c laim b ased o n his attorney’s concession that Jurado intentionally killed Holloway was not contrary to or an unre asonable application o f clearly established federal law. 2
, 3

2 To the extent Jurado challenges counsel’s failure to inv es t i g a te Jurado’s LSD use, we decline to addres s h i s argum ents. Jurado raised these claim s only in the context of Claim 1.D in of his Second Am endedJUR AD O V

. D A

VI S 25

During voir dire, defense counsel co n ceded Jurado’s involvem ent in killing Holloway. In his guilt phase opening
statem ent, counsel also conceded Jurado’s involvem ent in the killing—stating that Jurado killed Holloway in a m anner that suggested rage resulting from the use of m ethamp hetam ine,

as oppos e d t o a m anner that suggested prem editation and deliberation—and he argued that he would request a verdict of less than first degree m urder. In support of this argum ent, counsel p ut on evidence at the guilt phase regarding Jurado’s

m e t h a mp h e t a mi n e u s e , i n c l u d i n g t h e p r e s e n c e o f

m etham phetam ine in his systemat the tim e of the m urder— although there was evidence that suggested that Jurado likely ingested the m etham

p h etam ine days before the crim e.

Trial coun sel requested a jury instruction addressing the effe c t o f voluntary intoxication on specific intent. At the tim e, voluntary intoxication was a defense to first and second degree m urder. Ca l

. Pe nal Code § 22(a), (b); People v. Whitfield
, 7 Cal.4th 4 37
, 450–51 (1994). The trial court, however, refused to give the instruction b ecause it concluded counsel h ad set fo rth insufficient evidence establishing that Jurado w as intoxicated by me tham phetam ine o r any other substance at the tim e of the m urder.

During guilt ph a se closing argum ents, counsel told the jury that Jurado comm itted second d egree m urder. He argued

Petition, b ut th i s claim was not certified on appeal by the district court, and Jurado has not re que sted that we expand the COA to consider t hat claim now.

3 Jurado raised this claim in his 2 010 state habeas pe t i t i o n , and the California Suprem e Court denied it on the m erits without explanation and also concluded it was barred as untim ely and successive.JUR AD O V

. D A

VI S 26

that Jurado had only commi tt ed second degree m urder, and
not first degree m

urder, because h e kille d Ho l l oway in an unplanned struggle in the car that got “out of hand.”

In assessing allegedly deficient perform ance under Strickland v. Washington
, 466 U. S. 6 68 (1984), we are required “to affirm atively entertain” the range of possible

reasons counsel m ight h ave p roceeded as h e d i d. Cullen v. Pinholster
, 563 U.S. 179, 196 (2011). Strickland applies a strong p resum

ption of effective assistance of counsel, a reviewing court m

ust be h ighly defe r e nt ial to the judgm ent below, and wi d e latitude is given to defense counsel in

m aking t a ct ical decisions. 466 U.S. at 689. “[I]f counsel’s strategy, given the evidence bearing on the d efendant’s guilt, satisfies the Strickland standard, that is the end of the m atter;

no tenable claim of ineffe ct i v e assistance [will] rem ain.” Florida v. Nixon , 543 U.S. 175, 192 (2004).

Jurado has failed to show that trial counsel’s actions were objectively unreasonable su ch that counsel’s perform ance

was constitutionally d e ficient under Strickland

. Defense counsel’s decision to co n cede second degree m urder at the
cost o f the voluntary intoxication defense was not objectively unreasonable under the circum stances. Even though counsel had presented evidence that theoretically laid the foundation for the voluntary intox ication 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 m aking decisions based on a likely-unsuccessful defense. Considering the possi b l e t actical reasons that counsel cho s e to concede this p oint, it was n ot 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 m urder.JUR AD O V

. D A

VI S 27

Jurado’s argum ent that d efense couns e l ’s failure to prepare and present evidence in s upport of the voluntary intoxication case am ounted to deficient perform ance is likewise unpersuasive. Jurado has not explai n e d with any level of specificity how counsel’s investigatio n into the

m etham phetam ine intoxication issu e was inadequate. Moreover, he does not cite any other available evidence that could have been discovered or presented i n s up port 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 sug gested only that Jurado h ad ingested m etham

p hetam ine at som e point in the d ay s before his arrest, and no evidence established that Jurado h ad in fact i n ge s t e d m etham

p hetam ine the day of the m urder o r that he was intoxicated at the tim e of the m urder. If anything, the evidence of intoxication w as so thin th at c o unsel m ight have consider ed not presenting it at all; there was n o reason counsel needed to e x ert additional effort in its presentation,

and an expert testifying to the effects o f intoxication on the brain—without additional evidence o f Jurado ’ s actual intoxication—wo u ld not have been useful. Thus, this

ar g um ent does not support Jurado’s claim of deficient perform ance.

Ju rad o ’ s claim th at co un sel’s c o n c e s s i o n r e g a rdin g seco n d degree m urder gratuitously helped the prosecution also does
not am ount to deficient perform ance. Although conceding second d egree m

urder necessarily conceded a num ber of the elem ents of f

irst degree mur d e r , it w as not unreasonable given the circum s t an ces. By the tim e Jurado’s case w ent to trial, m ost of the m aterial elem ents of b oth second and first degree m

urder had been est ab lished; an abundance o f evidence d em onstrated that Jurado had killed Holloway—the prim ary issue was Jurado’s culpability for the killing.JUR AD O V

. D A

VI S 28

Although a crim inal defendant has a Sixth Am endm ent right to d ecide whether to m aintain h is innocence, see McCoy

v. Louisiana
, 138 S. Ct. 1 500, 1509 (2018), “[w]hen counsel info rms th e 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 im peded by
any blanket rule dem anding the d ef en d ant’s exp licit co nsent.” Nixon
, 543 U.S. at 1 9 2. Here, there is n o e v i de n ce Jurado opposed this strategy; therefore, counsel’s tactics did not run afoul of Nixon or McCoy

.

I

The California Suprem e Court’s rejection of Jurado’s claim of ineffective assistance of counsel at the penalty phase

was not contrary to o r an unreasonable application of clearly established federal law. Jurado argues that his counsel should have presented evidence o f: (1) fam ily background and social history; (2) depression, p olysubstance abuse, and

a d d i c t i o n ; ( 3 ) d e c o mp e n s a t i o n a n d h o m e l e s s n e s s ; (4) psycholog ical an d em o tio n al im m atu rity ; an d (5 ) exposure to toxins as a child.

However, we nee d no t reach the issue of whether counsel’s perfo rman ce was deficient, as Jurado has not adequately establis hed that any of counsel’s alleged deficiencies r esulted in prejudice within the m eaning o f Strickla n d

. To establish prejudice under Strickland
, a petitioner m

ust “show that there is a reasonable prob ab i l ity that, but for counsel’s unprofessional errors, the result of the
p ro ceeding would have been different. A reasonable
p ro b ab ility is a p ro b ab ility s ufficient to underm in e c o n f id e n ce in the outcom e.” 466 U.S. at 694. Here, the crim e itself was brutal and prem editated. Jurado killed in order to facilitate aJUR AD O V

. D A

VI S 29

second m

urder. The prosecution presented substantial evidence in aggravation
, i ncluding evidence of Jurado’s fe lony conviction, assaults against his own m o ther, and the victim ’s p regnancy. The evidence Jurado claim s should have been introduced was not so different in quality or kind that it would h ave necessarily shifted the jury’s view of Jurado as an individual or his responsibility for the killing. The jury knew Jurado h ad a difficult childhood and hom e life, they k new he had a strained relationship with his f ather, they knew that he

was a regular drug user, they knew he was twenty years old. Given these fact o rs , Jurado has failed to establish a “reasonable probability that

. . . the result of the p roceeding would have been different.” Id

.

J

The district court did not abuse its d iscretion in denying Jurado’s request for evidentiary developm ent, discovery, and

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

m erits in state c o urt , a federal habeas petitioner seeking discovery or an evidentiary hearing m ust first overcom e the relitigation bar of § 2254(d)(1) and (d)(2) based solely on the record that was before the state post-conviction court. S e e Pinholster
, 563 U.S. at 1 81 (“[R]eview under § 2254(d)(1) is lim ited to the record that was before the state court that adjudic ated the claim on the m erits.”). “Where a habeas petitioner has not f

ailed to develop the factual basis o f his claim as required by 28 U.S.C. § 2 2 5 4(e)(2), an evidentiary hearing is require d i f (1) the petitioner has shown his entitlem ent to an evidentiary hearing p ursuant to T owns end v. Sain , 372 U.S. 293, 313 (1963), and (2) the allegations, if true, would entitle himto relief.” Hurles , 752 F.3d at 791.JUR AD O V

. D A

VI S 30

Jurado h as not dem onstrated that any of his claim s

s urvive the § 2254(d) relitigation bar on the basis o f th e record before th e state court; therefore, the district court properly considered only the state court record in reviewing Jurado’s claim s for relief. S ee Sully v. Ayers
, 725 F.3d 1057, 1067 n.4 (9th Cir. 2013). As these claim s had not stated even

a prim a f acie claim for relief, evide n t iary developm ent was not necessary for the district court to deny them

. Additionally, because both the California Suprem e Court and the district court addressed the m erits of Jurado’s claim s without regard to any procedural defaults, the independence

an d a d e quacy of any procedure bars is not at issue, and any argum ent under Martinez v. Ryan
, 566 U.S. 1, 13–14 (2012) is m oot. Therefore, there was no need to develop additional evidence related to Martinezcause and prejudice.

In sum , the district court did not abuse its discretion in d eny in g Ju

rad o ’s requests for evid e ntiary d ev elo p m ent an d an evidentiary hearing.

III

The district court properly denied Jurado’s petition f or a writ of habeas corpus in thoughtful, detailed o p inions. It properly concluded that the Ca li fornia S uprem e Court’s decisions w er e n ot (1) contrary to, o r involved an unreasonable application of, clearly established federal law,

as determ ined by the Supr em e Court, or (2) resulted in a decision that w as based on an unreasonable determ ination o f the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The district court did not

ab u s e its discretion in denying requests for an evidentiary hearing and related relief.JUR AD O V

. D A

VI S 31

W e affirm

the judgm ent of the district court.

AFFIRMED.