F OR P UBLICATION

UNITED STATES COURT OF AP P EALS F OR THE NINTH CIRCUIT

C O N R A D Z A P I E

N , Petitioner-Appellant

,

v.

R O N A L D D A V I S , * Respondent-Appellee

. No. 09-99023

D.C. No. 2:94-cv-01455- W DK

ORDER AND AMENDED OPI NI O N

A ppeal from the United States District Court for the Central District of California W illiam D. Keller, Senior District J udg e, Presiding

Arg ued and Submitted December 11, 2014—San F rancisco, California

F iled November 9, 2015 Amended December 16, 2016

B efore: Alex Koz inski, J ohnnie B . Rawlinson and Mary H. Murg uia, Circuit J u dg es.

Order; O pinion by

J udg e Koz inski

* R o n a l d D a v i s i s s u b stitu ted f o r h is p red ecesso r M i c h a e l M a r t e l a s W ard en o f San Qu en tin

. S

ee Fed . R. A p p. P . 4 3 (c)(2 ).Z A P I E N V

. M A R

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SUMMARY

Habeas Corpus / Death P enalty

The panel filed an order amending an opinion filed November 9, 2015, and deny ing a p etition for panel rehearing

or rehearing en banc, i n a c a s e in which the panel affirmed the district court’s denial of California state p risoner Conrad Z a pien’s habeas corpus petition challeng ing his first deg r ee murder conviction and death sentence.

I n the amended opinion, the panel:

• rejected Z a

pien’s arg u m e n t that the California S u p reme Court unreasonably rejected his claim tha t he was denied due pr o c ess when a prosecution investig ator, who found a sealed envelope c ontaining

an aud i o tape ex plaining defense strateg y , destroy ed the tape.

• held that the California Sup r e m e Court did not unreasonably reject Z apien’s arg uments that h is rig hts under the Confrontation Clause were violated b y (1) the trial court’s admission of s t a t ements that Z apien’s sister made at a preliminary h e aring a nd (2) the introduction of multi-level hearsay testimony

.

• held that the California Supreme C o u r t did not

unreasona

b ly r eject Z apien’s claims of ineffective assistance of counsel at the g uilt phase.

T h is s u m m ary co n stitu

tes n o p ar t o f t h e o p i ni o n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

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

th e read er.Z A P I E N V

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T E L 3

• hel d t h a t the California Supreme Court did not unreasonably reject Z apien’s cla i ms of ineffective assistance of counsel at the sentencing phase.

• held that the California Supreme Court d i d n o t unreasonably reject Z apien’s claim that his rig ht to an impartial jury was v iolated when the trial court failed
to dismiss a juror w h o admitted to hearing a news report that sug g ested Z apien would hurt his g uards if he were g iven the death penalty

.

COUNSEL

Tracy J

. Dress ner (arg

ued), L a Crescenta, California, J ay L

. L ichtman (arg

ued), L os Ang eles, California for Appellant.

J oseph P. L ee ( arg ued), Deputy Attorney General, Kamala D

. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, L a

nce E. Winters, Special Assistant Attor n ey General, A

. Scott Hay w ard, Deputy Attorney G e n e r a l

, Office of the Attorney General for the State o f California, L os Ang eles, California for Appellee.Z A P I E N V

. M A R

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ORDER

The o pinion filed N ovember 9
, 2015, and app e a r i ng at 805 F .3d 862, is AMENDED a s r e flected in the a ttached amended opinion. The petition for panel rehearing o r rehearing en banc is DENIED

. No a dditional petitions for rehearing are permitted.

OP INION

KOZ I NSKI , Circuit J udg e:

Conrad Z apien was convicted of first deg ree murder a

nd sentenced to d eath b y the st a te of California. He c halleng e s both his conviction and sentence.

BACK G ROUND

I n 1 987, Z apien was found g uilty of killing Ruby Gonz al ez in her h ome by shooting her four times a nd stabbing her five times. Z apien wa s a h e r oin addict, desperate for money , and Ruby was the mistre ss of his sister’s husband. T h e p rosecution ’s c ase at trial was that Z a pien intended to rob Ruby ’s h ome after b e i n g told by his sister that there was money and jewelry ins i d e

. T he prosecution th e o r iz e d that Ruby surprised and confronted Z a pien, who killed her and fled town t h e n ex t day

. Z apien spent the months after Ruby ’s death living under pseudony ms i n various Christian homes, before eventually being foun d and arrested in Ariz o n a.

B e fore Z apien’s trial beg an, p r o secutor Gary Van Camp and his investig a tor Harry Heidt fo u n d a sealed envelopeZ A P I E N V

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bearing the name of Za pien’s trial counsel. The envelope

c o n tained an audio tape ex plaining the defense’s streng t h s and weaknesses. Heidt later c laimed that Van Camp told him
to listen to the tape, but he destroy ed it instead. H e i d t eventually revealed the incident and Z a p ien’s counsel moved
to have all charg es dismissed. The trial court deni ed the motion, finding that Heidt had not listened to the tape.

The j u r y convicted Z a

pien of first deg ree murder a nd found a “special circumstance” which made Z apien death elig ible—that the killing was committed during the course o f

a burg lary and an attempted robbery

. The jury sentenced Z a pien to death.

Z apien a ppealed his c o nvict i on and sentence to the California Supreme Court, w hich denied his appeal in a leng thy reasoned opinion in 1 993. See People v. Zapien
, 846 P.2d 7 04 (Cal. 1993) (in bank). I n 1 9 9 6
, Z apien filed a federal habeas petition that was stay ed pending ex haustion o f
state remedies. Z apien then filed a state h abeas petition in the California Supreme Court. I n 1998, the California Supreme Court denied all but four o f Z apien’ s c l a i m s on timeliness
g rounds and, in the alterna t i v e, summarily denied all of his claims on the merit s

. Za p ien then returned to federal court. Althoug h he was g ranted a n evidentiary heari ng o n some o f his ineffective assistance of counsel claims, the district court ultimately

denied them all.

D ISCUSSION

1. The Tape

Za p ien arg ues he was denied d ue process when Heidt destroy e d the d efense strateg y tape. The California SupremeZ A P I E N V

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Court concluded that, thoug h Heidt “clearly acted wrong ly in disposing o f the envelope a nd its contents, . . . this improper
act d id not depr i v e [ Za p ien] of due process of law o r otherwise deny [ him] a fair trial” b ecause there was no “‘c onscious effort to suppress ex culpatory evidence.’” Zapien
, 846 P.2d at 723 ( q u o t i n g California v. Trombetta

, 467 U.S. 479, 488 (1984)). Z apien arg ues that this w as an unreasonable application of Trombetta a nd Ariz o n a v. Y o ungblood , 488 U.S. 51 (1988).

However, both Y

oungblood and Trombetta dealt with the destruction of potentially ex culpatory e vidence—not, a s h ere, t he destruction o f attorney -client work product. See Y o ungbloo d

, 488 U.S. a t 57–58; Trombetta

, 467 U.S. at 486–87. Zapien asserts the n ovel theory that destroy ing the tape constituted the destructi o n o f ex culpatory evidence because, had the tape been r ecovered, it could have been tested. Such testing a

pparently would have revealed that the tape had been listened to and thus that miscond u c t h ad occurred. Revealing the alleg ed misconduct w ould have been “ex c ulpatory ,” according to Z apien, b ecause it would have required the case be dismissed.

Z apien’s tortuous chain of reasoning is not supported, let alone “clearly established,” by Y oungblood

, Trombetta or any othe r S u p re m e Court case. See 28 U.S.C. § 2254(d)(1) (a writ of habeas corpus may not be g ranted unles s t h e state court reached a “decision that was contrary to, or involved an unreasonable application of, clearly established F ederal law,

as determined by the Supreme C o u rt o f the United States”). Z a pien provides no authority f or the proposition that a d ueZ A P I E N V

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process v i o l ation can be premised on the destruction o f information already

known to the defense. 1

Z apien nex t arg ues that it was u nreasonable for the Cal i f ornia Supreme Court to adopt the Superior Court’s factual finding that Heidt didn’t listen to the tape. Because Z a pien is u nable t o e x p l ain how listening to a defense strateg y tape constitutes a d ue process vi o l ation, he likely wouldn’t have a viable claim even if the state court’s f actual determin a t i on had been unreasonable. See W ilson v. Corcoran
, 562 U.S. 1, 5–6 (2010) (holding that a state court’s unreasonable factu a l d e termination is only relevant in a federal habeas proceeding to the ex tent it results in a decision that violates federal law). I n any event, our review of a state appellate court’s affirmance of a state trial c ourt’s credibility determination “is doubly d eferential.” Br i ggs v. Grounds

, 682 F .3d 1 165, 1170 (9th Cir. 201 2 )

. “ [ U] nless the state appellate court was objectively unreasonable in concluding that a trial court’s credibility d etermination was supported b y [ the recor d ]
, we must uphold it.” Id. H ere, even if “[ r] easonable minds reviewing the record mig ht disag r e e” a s to the truthfulness of Heidt’s testimony

, “that does not suffice
to supersede the trial court’s credibility d etermination.” Rice

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

1 Z ap ien ’ s claim

is m o re read ily

co g n izab l e as a v io latio n o f h i s rig h t to co u n se l u

n d er th e Six th A m en d m en t , see Un ited S ta tes v

. Da n i elso n , 3 2 5 F.3 d 1 0 5 4, 10 7 0

– 7 1 (9 th C ir. 2 0 0 3 ), th o u g h

, ag ain

, su ch a claim h as

n o t b een clearly estab lish ed b y t h e Su p rem e Co u

rt. In an y ev en t , Z ap ien f ailed to b rin g th i s claim

, eith er b ef ore u s o r in an y p rio r s tate or f ed eral
p ro ceed in g

.Z A P I E N V

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2. Conf

rontation Clause

Z apien nex t arg ues that his rig hts under the Confrontation Clause were violated when the trial c ourt admitted v ar ious
statements that his sister I nez —who refused to testify at t r i al

— made at a preliminary hearing

. 2 Under the theng overning standards o f Ohio v. Roberts

, 448 U.S. 56 (1980), abroga t ed by Crawford v. W ashington

, 541 U.S. 36 (2004), the “adequate opportunity to cross-ex amine [a] w itness” at a preliminary hearing ty

p ically provides “sufficient indic ia o f reliability ” f

or statements from that hearing to be introduced
at trial if the witness is unavailable. I d. at 73 (alteration omitted) (internal q

uotation marks omitted). Nonetheless, Z a pien arg ues tha t t he state c ourt unreasonably a pplied Roberts because the go v e r nment knew I n ez had told lies during other parts o f her preliminary hearing testimony (thoug h not in the p ortions read to the jury ). Even assuming I nez h a d in fact lied, Z apien fails to show that the California Supreme Court’s decision was an u n reasonable application o f Roberts

. Preliminary hearing testimony fa l l s within the heartland of those statements deemed reliable u nder R oberts

, s e e 4 48 U .S. a t 73 (noting that “g uarantees o f
trustwo r thiness” a

r e f o und “in the a c couterments o f the preliminary hearing

itself”), and Z apien can point to no case in which admitting preliminary hearing testi m o n y has been

2 T h e trial co u rt also allo w ed in to ev id en ce certain statem en ts m ad e b y In ez d u rin g a p o lice in terv i ew

. T h e C alif o rn i a Su p rem e Co u rt f

ou n d th at Z ap ien w as p ro ced u rally barred f ro m raisin g th e arg u m en t th at ad m issio n

o f th ese in terro g atio n statem en ts v i o lated h is co n f ro n tatio n rig h ts, b ecau s e h e d id n o t co n tem

p o ran eo u sly o b

j ect t o t h eir ad m issio n at trial. T h at d ism issal o n a p ro ced u ral g ro u n d co n stitu

tes an in d ep en d en t an d ad eq u ate b asis f o r d i sm issin g th e claim , w h i ch w e are b arred f

ro m rev iew in g

. S

ee Co lema n v

. Th o mp so n , 5 0 1 U.S. 7 2 2 , 7 5 0 (1 99 1 ).Z A P I E N V

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held to v iolate the Confrontation Clause solely because other testimony by the absent witness is untrue.

Z apien claims that his co n f r o ntation rig hts were also violated by the introduction at trial of multi-level hear s ay t e stimony by Mariella Perez
, a friend of I nez ’s daug hter J uanita. Perez testified that J uanita told her that I nez ’s other daug hter, “ L i ttle I nez , ” had told J uanita that Z apien arrived
at I nez ’s h ouse on the morning of the murder with b l o o d on his shirt. An investig ator also p lay ed a recording of Perez stating that J uanita told h e r t h a t L ittle I nez saw I nez g ive Z a pien her car key s. B oth J uanita and L ittle I nez testified at trial: L ittle I n e z denied seeing Z apien that day or talking to J u a nita, and J u anita likewise d enied the conversation. T h e California Supreme Court reasonably —indeed correctly

— applied the holding in Califor n i a v

. Green that “the Confrontation Clause is not violated by admittin g a declarant’s out-of-court statements, as long as the declarant is testify ing as a witness and subject to full a n d e ffective

c ross-ex amination.” 399 U.S. 149, 158 (1970). Z apien
arg ues here, as he did before the Ca l i f o r n i a Supreme Court, that Green is inapplicable in the contex t of multiple hearsay

. B ut he c i t e s no authority for that proposition, a nd the California Sup r e m e Court reasonably rejected what it considered to be an “arbitrary rule b ased solely upon the number of levels of hearsay .” Zapien , 846 P.2d at 717.

Z a p ien also arg ues that the admission o f Perez ’s
statements wa s such a

n eg r eg ious violation of California evidentiary law that it constituted a d ue process violation. I t is not at all clear that there was a violation of California law, let a l o n e one so fundamentally unfair that it amounted to a due process violation. I n any event, we’ve held that, “[ u ] nder AEDPA, even clearly erroneous admissions of evidence thatZ A P I E N V

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render a trial fu n damentally unfair may not permit the g rant of federal habeas corpus relief if n ot f orbidden by clearly

e stablished [Supreme Court precedent] .” Holley v

. Y a rborough

, 568 F .3d 10 9 1, 1101 (9th Cir. 2009) (internal
quo t ation marks omitted). B ecause there is no Supreme Court case establishing the fundamental unf a irness o f admitting multiple hearsay testimony

, Holley prohibits us from finding in Z apien’s favor on this due process claim.

3. I nef f ective A ssistance of Counsel at the G ui l t P hase

Z apien brings several ineffective assistance of counsel claims, all of which were summarily denied by the California Supreme Court. 3 W he n confronted with a state court’s
summary d enial, w e “ must deter mine what arg uments o r theories

. . . could have supported

. . . the state cour t ’s decision; a n d t h e n

. . . ask whether it is possible fairminded jurists could disag r ee that those arg ument s or theories a re inconsistent with the holding in a prio r d e c ision of [ the Supreme] Court.” Harrington v. Richter

, 562 U.S. 86, 102 (2011). O ur review of Z a pien’s ineffective assistance c laims is d oubly deferential: “ W e take a hig h ly deferential look at counsel’s performance throug h the deferential l e n s o f

3 Z ap ien ’ s in ef

f ectiv e assistan ce claim s w ere f irst p resen ted to t

h e state

co u rts i n a h ab eas petitio n o v er t h ree y ears af ter th e d en ial o f Z ap ien ’ s d irect ap p eal. In ad d i t i o n to s u m m arily d en y i n g th ese claim s o n th e

m erits, t h e C alif o rn ia Su p rem e Co u rt d ism issed th em o n t im elin ess g ro u n d s. T h ey sh o u ld th eref o re b e p ro ced u rally d ef

au lted

. Ho w ev er, th e state d o es n o t raise p ro ced u ral d ef au lt b ef o re u s, n o r d id it d o so b ef

o re th e d istrict co u rt. A lth o u g h w e m ay raise th e issu e o f p ro ced u ral d ef au lt su a sp o n te u n d er ex ce p t i o n al circu m stan ces, see Da y v

. McDo n o ug h

, 5 4 7 U .S. 1 9 8 , 2 0 9 (2 0 0 6 ), w e d eclin e to d o so h ere.Z A P I E N V

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§ 2254(d).” Cullen v. Pinholster

, 56 3 U.S. 170, 190 (2011) (internal quotation marks and citation omitted).

Z apien first arg ues that his trial counsel was ineffective for n ot vig orously impeaching the t e s t i mony of Ruby ’s daug hter Marci. Thirteen-y ear-old Marci was an ey ewitness
to the murder and testified that during the attack she heard her mother s a

y , “ Chato, leave me alone. I will g ive y ou the
money a nd the jewelry .” “Chato ” was Z apien’s brother— who resembled Z apien—and was in prison at the time of the killing

. Marci’s testimony was harmful to Z a pien both because i t s h owed that he looked like the assailant a nd because it sug g ested he entered the home w ith a n i n t ent to commit a rob b e ry , the “special circumstance” that made Z a pien death e lig ible. Z apien arg ues that his trial counsel should have impeached Marci wi t h statements she made during Z apien’s preliminary hear i n g—and statements made
to neig hbors and the police—where she ei t h er failed to mention “the money and the jewelry” or i m p l i ed that Ruby

was offering the intruder “the money and the jewelry ” rather than responding to a demand. Z apien a l s o a rg ues that trial counsel should have attempted to undermine Marci’s account

w i t h testimony by a child memory ex pert, w ho wo u l d apparently h ave e x plained that, since Marci had just awoken from a violent dream, her memories of the at t a c k m a y have been faulty

.
However, a fairminded jurist could conclude that counsel made a st r a t e g ic d ecision in how he approached Marci’s impeachment. Even if counsel had tried to impeach Marci in
t he manner Z apien n ow sug g ests, a jury w ould likel y s t i l l h a v e found her testimony credible. Marci’s p hy sic al description of the a ttacker wearing a p l a id shirt and a vest

was c or r o borated by the d iscovery of an abandoned plaidZ A P I E N V

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shirt and vest cover e d i n Ru b y ’s blood. Marci was by all
accounts hig hly sy

mpathetic on the stand. And her memory of the e vent was vivid and p rolong ed—involving not merely wi t n e s s i n g the attack, but also hitting the assailant with a bro om and try ing to p rotect her sisters. Ag g ressively attempting to impeach Marci’s testimony may therefore have alienated the jury

, without doing muc h t o undermine her credib ility

. Z apien’s trial counsel took a different tack. He stressed that Marci’s testimony

, even if true, failed to

e s t ablish bey ond a reasonable d oubt that Z apien was t h e assailant. U nder the c ircumstances, we cannot c onclude that all fairminded jurists would sa y s u c h a strateg y rendered counsel’s assistance ineffective. See Harrington
, 562 U.S. at 102; Stri c k l a n d v. W

ashington

, 466 U.S. 668, 681, 688 (1984).

Z apien nex t claims that trial counsel should have introduced the testimony of Ruby ’s two other c h i l d r en, J oni and J essica, who a lso witnessed the mur d e r

. J oni told the police that the a ttacker w as wearing a dark ski mask, and both J oni a nd J essica said they heard a c ar speeding away after the attack. Z apien claims that the ski mask testimony would have undermined Marci’s account that Ruby thoug ht the assailant

was Chato, a

nd the car sound would have undermined Mariella Perez ’s story that Z apien n eeded a car from I nez after the murder.

However, at the time of the murder, J oni and J essica were eig ht and si x respectively

, much y oung er than the thirteeny ear-old Marci. Not only was Marci’s story more p recise a nd fleshed out than those o f her sisters, it was also corroborated by the discovery of the plaid shirt a nd vest. B ecause of their
y outh, J oni and J essica m ay h a v e been unpredictable on the stand, and putting them throug h the o rdeal of testify ing couldZ A P I E N V

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have alienated the j u r y

. T h ere was o nly a small, perhaps infinitesimal, possibility that a jury would have believed them rather than Marci. On b a l a nce, the risks associated with calling them to testify outweig hed the potential b e nef i t s

. According ly

, it is r easonable to conclude that counsel wasn’t ineffective in failing to call J oni and J essica as witnesses.

Z apien nex t arg ues that counsel should have mo v ed to

ex c lude the testimony of L ena Chacon and Michael J imenez

, two witnesses Z apien met at a Christian home shortly a fter the murder. Chacon testified at trial that Z apien told her that he shot someone during the robbery of a store and was using

a pseudony

m b e c ause he was wanted for murder in California. J imenez testified that Z apien had told him about
two separate shooting s—one in which he shot someone, w ho J imenez thoug ht was a woman, and an o t h e r d uring the robbery of a store. Z apien arg ues t hat trial counsel was ineffective f

or failing to move in limine to ex clude Chacon’s and J imenez ’s testimony as irrelevant to R u b y ’ s murder. However, a r eview o f the record reveals little basis upon which such a motion could plausibly have been successful. W h ile both witnesses made v ag u e and c onfusing statements during the preliminary hearing

, their testimony clearly h ad the potential of being hig h l y probative. Competent counsel could reasonably have c oncluded that moving to ex clude their testimony on the g r oun d s Z apien now sug g ests would have seemed frivolous.

Z apien also criticiz es counsel for eliciting testimony from Chacon at trial reg arding the apparent store-robbery killing

. B ut, review of the c r oss-ex amination transcript r eveals that counsel a cted reasonab l y

. C hacon mentioned on the stand that Z apien had admit t e d shooting someone, but didn’t specify who the victim was. At that point, counsel made theZ A P I E N V

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strateg ic decision to a sk about the p o s s i bility o f a second shooting in order to create d oubt as to whether Z apien w a s referring to Ruby ’s killing

. Under our doubly deferential review, we cannot say the California Supreme Court erred in concluding that counsel’s representation was competent.

Z apien also claims that counsel w as ineffective by failing
to object to several instances of inadmissible a nd prejudicial hearsay testimony

. Z apien claims counsel should have objected o n Conf

ro n tation Clause g r ounds to Serg eant Stevens’s testimony about what I n ez told him. B u t counsel had cross-ex amined I nez at a pr e l iminary hearing

, and the California Supreme Court found that the same interest a nd motive e x isted in that cross-ex amination as a t trial. The California Supreme Court’s determination that this testimony didn’t violate the Confrontation Clause wasn’t unreasonable. See Ohio v. Roberts

, 448 U .S. 56, 72

– 7 3 (1980), a brogated by Crawford v. W

ashington

, 541 U.S. 3 6 (2004). The other hearsay statements Z apien c o mplains about were c umulative of the evidence offered at trial and thus n ot prejudicial, even assuming that counsel should have objected to them.

F inally

, Za p ien a

rg ues that c o unsel was ineffective for failing to introduce evidence sug g e s t ing that Z apien had a broken hand a t th e t i m e of the murder and was therefore likel y i n c apable of killing Ruby

. Z apien arg ued in his state habeas petition that trial counsel should have i ntroduced testimony by Dr. J ames D ay , a ra d i o l o gist who alleg edly treated Z apien for a hand inj u r y t welve day s before Ruby ’s murder. A ccordi n g t o Z apien, Day ’s testimony would have shown that Z apien was injured, had a cu m b er some cast placed on his rig ht hand and was likely phy sically incapable of making the deep stab wounds found on Ruby ’s body

. B ut

even if counsel was in possession of medical records showingZ A P I E N V

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that Z apien was treated for a f ractur e , a fairminded jurist could conclu d e that counsel’s failure to pursue this line o f defense did not amount to ineffective assis t a n ce. A fairminded jurist could also conclude that this sing le piece o f medical evide nce would not have created a reasonable likelihood o f a differ e n t outcome at trial, g iven the other evidence of Z apien’s g uilt and, most sig nifican t l y , the fact that the hand injury (as Z apien concedes) would not have made the attack impossible.

4. Inef f ective Assistance of Counsel at the Sentencing P hase

Z apien a rg ues that counsel w as in effective for failing to introduce various p i e c e s of mitig ating evidence at the sentencing phase. Z apien f irst claims tha t c o u nsel should have introduced f

urther e vidence r e g arding his traumatic upbring ing

, w hich would have r evealed that Z apien’s father

was a violent alcoholic who b rutally beat Z apien’s mother in front of the children and abandoned the family when Z apien

was five. Z apien’s father later retu rned and carried on a thirteen-y ear incestuous relationship with Z apien’s sister that ended when Z apien’s f

ather sho t her to death before k illing himself.

Meanwhile, Z apien’s mother worked as a prostitute a nd

a “coy o te” smug g ling undocu m e nted immig rants across the Mex ican border. Two men with whom she was involved impreg nated two of Z a

pien’s s i s t e r s. Z apien’s mother also carried a g un a

nd drank at local bars, g ot men drunk and stole their wallets, and neg lected her children, who g rew up on the
streets malnourished and hung ry

. She frequently beat Z apien and his sibling s.Z A P I E N V

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I n addition, evidence in the h abeas r ecord indicates that Z a pien’s g randmother, with whom Z apien lived, also worked

as a coy ote. She routinely abused Z apien, whipping him with

a rubber hose, often for acts committed by a sibling

. She forced Z apien a

nd h is sibling s to perform manual labor in the fields, and threw rocks at them when they took a break from working

. On one occasion, she killed Z apien’s pet rabbit a nd served it to him for dinner, w hich Z apien l e a rned only a fter he had eaten the meal.

Z apien’s uncle, who al s o lived in the g r andmother’s house, was a major drug dealer w i t h m u ltiple d rug

c o n victions; he used a

nd sold h eroin, and made dr u gs available to Z apien from a y oung ag e

. Z apien was sentenced
to juve n i l e hall for drug - and alcohol-related offenses when he w a s f i ft een y ears old. He w as a heroin addict by the ag e of twenty

.

I n addition to his drug addiction, Z apien had a history o f blackouts and was diag nosed with sy philis. He had a lso been

ex p osed to pesticides while working a s a tree spray er, a nd suffered numerous blows to the head at a y oung ag e

.

Z apien contends that there is a reasonable probability that this sordid backg round evidence w ould have moved at least

one juror to spare Z apien’s life, and that it was unreasonable for the California Supreme Court to conclude otherwise, particularly g iven that Z apien’s jury —without h aving heard this evidenc e

— d eliberated f or three day s before returning a death verdict.

The importance and relevance of social history a nd mental health at the sent en ci n g phase of a capital case is clearly established by

the United States Supreme Court, a ndZ A P I E N V

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was cle ar ly established b oth a t the time of defendant’s penalty phase in 1987 a

nd at the time the California Supreme Court denied Z api e n ’s ineffective assistance o f counsel claims in 1998. See California v. Brown
, 479 U.S. 538, 545 (1987) (O’Connor, J
., concu r r i n g ); Eddings v. Oklahoma

, 455 U.S. 104, 1 14–15 ( 1982); Lockett v. Ohio

, 438 U.S. 586, 604–05 (1978) (plura l i t y opinion); W oodson v. North Carolina

, 428 U.S. 280, 303–05 (1976) (plurality o pinion). However, t h e S u

preme Court h as clarified that S trickland does not require penalty phase c o u n sel to “investig ate every conceivable line of mitig ating evidence.” W iggins v. Smith

, 539 U.S. 510, 533 (2003).

Here, defense cou n s e l soug ht out—and introduced—a considerable amount of mitig ating e v i d ence. F or ex ample,

co u n s el called a cultural anthropolog ist who testified a s an

ex p ert about the “ phy sical, social, [ and] economic isolation,” i n the L a Colonia c ommunity in Ox n ard. Counsel a lso introduced testimony from a medical doctor about the effects of heroin addiction, and solicited char acter testimony from Z a pien’s friends and family

. Throug h this evidence, defense counsel introduced a picture of Z apien as a k i n d a n d affectionate child w ho was raised i n an overcrowded, drug

infested a

nd impoverished “slum” without parental supervision or a male ro l e m o d e l. Counsel also appealed to the notion of ling ering doubt by introducing information
reg arding the prosecution’s possible misconduct, w h ich called into question the reliability of the pro s e c ution’s evidence. “[ C ] o u n s el’s decision n ot to mount an a ll-out investig ation into petitioner’s backg round i n search o f mitig ating circumstances was supported b y reasonable professional judg ment.” Burger v. Kemp
, 483 U.S. 776, 794 (1987); cf. P orter v. McCollum

, 558 U.S. 30, 39–40 (2 0 0 9 ) (per c uriam) (finding deficient performance d u ring theZ A P I E N V

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penalty phase where “ c ounsel did n ot even take the f irst step of interviewing witnesses or r equesting records” and “th u s failed to u ncover and present any evidence of [ petitioner’s] mental h ealth or mental impairment”); W iggins
, 539 U.S

. at 533 (finding deficient performance during the penalty phase where “counsel’s investiga tion of p etitioner’s backg r ound

was limited to [ two court-commissioned] records,” a n d holding that “strateg ic c hoices made after less than complete investig ation are reasonable o nly to the ex tent that reasonable
p r o f es s i o n a l j u d gm e n t s s u p p o r t t h e l i m i t at i ons o n investig ation” (internal quotation marks and citation omitted)).

F urthermo r e , as the district court correctly found, mitig ating evidenc e o f drug dependency and an abusive family history “can be a two-edg ed sword that [ a jury ] mig ht find to show f

uture dang erousness” o r u se to conclude that a defendant is “simply bey ond r e h abilit a t ion.” Pinholster

, 563 U.S. at 201(internal quotation mark s o mitted) (quoting Atkins v. Virginia
, 536 U.S. 3 04, 321 (2 0 0 2)). Given that “strateg ic choices made after thorou gh investig ation of law and f acts relevant to plausi b l e options are v irtually unchalleng eable,” Strickland

, 466 U.S. at 690, the California Supreme Court was not unreasonable in deny ing this claim.

Za p i e n a l s o a r gu e s t hat t r i a l c o u n s e l s h o u l d h a v e introduced evidence of Z a pien’s psy c h iatric and neurolog ical problems. H o w e v er, it is not c lear that Z apien actually suffers from any such problems. All that was presented for
state habeas r eview was evidence that Z apien’s fa m ily

mem b ers suffered from mental illness, and that he was

ex p osed to various thing s— like drug s, p esticides and blows
to the head—that c ould have led to him developing a b r a in injury

. T h e closest thing to an actual diag nosis o f a mentalZ A P I E N V

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disorder is a doctor’s testimony during Za p ien’s federal evidentiary hearing that he may have suffere d from PTSD. However, that evidence was never presented in Z apien’s state petition, and we are n o t p ermitted to consider it h ere. Pinholster

, 563 U.S. at 181–82, 1 86. And, even if it were before us, there is no indication that counsel knew or should h a v e k nown that Z apien suffered from such a disorder

. F ailur e t o introduce e vidence o f PTSD, therefore, didn’t amount to ineffective assistance of counsel.

Z apien n ex t arg ues that counsel was ineffective for failing
to properly prepare tw o ex p erts at sentencing

. B o th ex perts g a ve g eneric testimony

—one about the socioeco n o m i c p r o f i l e of Z apien’s neig hborhood and the other about the effects o f heroin abuse—but neither ex pert met w ith Z apien or tailored his testimony to Z apien’s particular circumstances. Z apien

can point to no case holding that failure to hav e an e x pert meet with a defendant c o n s titutes ineffective assistance. And, in any event, if defense counsel had pr e s e nted ex p erts w ho “personaliz ed” their testimony to Z a pien, r easonable jurists could debate whethe r s u ch ex pert testimony would have opened the door to evidence (or more evidence) re g a r d i ng Z a pien’s heroin addiction as w ell a s whether Z apien suffered from anti-social personality disorder—topic s that may not have inured to Z apien’s benefit in the ey es of the jury

.

F inally

, Z apien arg ues th a t c ounsel was ineffective because h e didn ’ t adequately rebut the prosecution’s use o f Z a pien’s prio r manslaug hter conviction as an ag g ravating factor. A ccording to Z apien, counsel failed to ex p lain to the j ury that the victim in that crime had attacked an d r a p e d Z a pien’s g irlfriend a few day s before the k i l l i ng

. I nstead, trial counsel soug ht to obscure the particular facts of Z apien’sZ A P I E N V

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prior crime and emph as i z e the lower deg ree of culpability required for a manslaug

hter conviction.

I n W o ng v. Belmontes , 558 U .S. 15 (2009) (per curiam), the Supreme Court reversed this court’s g rant of habeas relief based on the p urported prejudicial ineffective assis t a n ce o f B elmontes’s trial counsel and reinstated the petitioner’s death
sentence. B elmontes was convicted of murd e ring a w oman during a burg lary

. Id. at 15. At sentencing

, B e l montes’s counsel presente d n ine witnesses who testified about B elmont es ’ s difficult childhood. Id. at 19. Nevertheless, B elmontes a

rg ued that c ounsel should have offered more mitig ating evidence. Id. at 1 6. However, B e lmontes had a prior conviction for accessory after the fac t t o voluntary manslaug hter. Id. a t 1 7. There was substantial evidence that B elmontes h ad, in fact, committed murder but pleaded g uilty
to a lesser offense

, a n d c ounsel built his mitig ation strateg y around the “overriding need” to ex clude t h e d e tails o f B elmontes’s criminal h istory

. Id. at 18. The Supreme Court held that trial counsel had reasonably tailored his mitig ation

case to avoid opening the door to the ag g ravating e vidence o f B elmontes’s manslaug hter conviction, which would have become admissible had the unoffered evidence been received. See id. at 2 5

– 2 6

. As the Supreme Court ex plained, “[ a] heavy handed case to portray B e lmontes in a positive lig ht

. . . would have invited the strong est possible evidence in rebuttal—the e vidence that B elmontes was r esponsible for not one but two murders.” Id. at 25.

A f airminded jurist could conclude that co u n s e l faced a similar d ilemma reg arding the d etails of Z apien ’ s p rior

con v iction. Z apien’s jury knew that h e had previously been convicted for stabbing a man to death with a machete. And, while Z a pien pled to voluntary manslaug hter, t h e r e wasZ A P I E N V

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evidence that the k i l l i n g w a s a c t u a l l y p remeditated—evidence that would likely have been revealed to the jury had counsel elaborated on the details of the attack. According ly

, we must conclude that the Califor n i a S upreme Court could have reasonably determined that Z a p ien f ailed to show that counsel’s representation was constitutionally inadequ a te, o r that he suffered p r e

j u d ice from the lack of additional mitig ating evidence.

5. Juror P rejudice

Z apien’s final arg ument is that his r ig h t to an impartial jury was violated when the trial court failed to dismiss a juror who admitted to hearing a n ews r eport that sug g ested Z apien would hurt his g u ards if he were g iven the death penalty

. The trial court held a hearing in which the judg e questioned the juror, a nd eventually ruled that h e w a s capable of being impartial. The California Supreme Court r e j ected Z apien’s
arg ument that the trial court erred in thi s c r e d ibility determination, and concluded that the j u r o r’s knowledg e o f the news report was harmless.

Z apien a rg ues that the C al i fornia Supreme Court’s decision was a

n unreasonable application of Mattox v. United States
, 146 U.S. 140 (18 9 2 )

, w hich established a rebuttable presumption o f p r e

judice when a juror is ex posed to information g arnered outsid e o f the trial. However, in substance, the California Supreme Court applied the Mattox presumpti o n w hen it held that the trial court properly determined the juror could be impartial. Once aga i n , o u r posture is d oubly deferential: Z apien asks us to hold that the California Supreme Court was unreasonable in failing to find that the trial court made an unreasonable credibility determination about whether th e juror was prejudiced.Z A P I E N V

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Z a pien has no non-speculative basis f or t h a t c onclusion. I nstead, he e f

fectively advocates for a per se rule in which

ex p osure to any out-of-trial information au t o m atically

r e quires juror dismissal. Such an a pproach is pla i n l y inconsistent with Mattox a n d its prog eny

. As with Z apien’s other claims, the California Supreme Court’s decision w as at least reasonable.

AF F IRMED.