FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONRAD ZAPIEN,

Petitioner-Appellant,

v.

RONALD DAVIS,

*

Respondent-Appellee.

No. 09-99023

D.C. No.

2:94-cv-01455-

WDK

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Central District of California

William D. Keller, Senior District Judge, Presiding

Argued and Submitted

December 11, 2014—San Francisco, California

Filed November 9, 2015

Amended December 16, 2016

Before: Alex Kozinski, Johnnie B. Rawlinson and Mary H.

Murguia, Circuit Judges.

Order;

Opinion by Judge Kozinski

 

* Ronald Davis is substituted for his predecessor Michael Martel as

Warden of San Quentin. See Fed. R. App. P. 43(c)(2).
2 ZAPIEN V. MARTEL

SUMMARY

Habeas Corpus / Death Penalty

The panel filed an order amending an opinion filed

November 9, 2015, and denying a petition for panel rehearing

or rehearing en banc, in a case in which the panel affirmed

the district court’s denial of California state prisoner Conrad

Zapien’s habeas corpus petition challenging his first degree

murder conviction and death sentence.

In the amended opinion, the panel:

• rejected Zapien’s argument that the California

Supreme Court unreasonably rejected his claim that

he was denied due process when a prosecution

investigator, who found a sealed envelope containing

an audio tape explaining defense strategy, destroyed

the tape.

• held that the California Supreme Court did not

unreasonablyreject Zapien’s arguments that his rights

under the Confrontation Clause were violated by

(1) the trial court’s admission of statements that

Zapien’s sister made at a preliminary hearing and

(2) the introduction of multi-level hearsay testimony. 

• held that the California Supreme Court did not

unreasonably reject Zapien’s claims of ineffective

assistance of counsel at the guilt phase.

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

been prepared by court staff for the convenience of the reader.
ZAPIEN V. MARTEL 3

• held that the California Supreme Court did not

unreasonably reject Zapien’s claims of ineffective

assistance of counsel at the sentencing phase.

• held that the California Supreme Court did not

unreasonably reject Zapien’s claim that his right to an

impartial jury was violated when the trial court failed

to dismiss a juror who admitted to hearing a news

report that suggested Zapien would hurt his guards if

he were given the death penalty.

COUNSEL

Tracy J. Dressner (argued), La Crescenta, California, Jay L.

Lichtman (argued), Los Angeles, California for Appellant.

Joseph P. Lee (argued), Deputy Attorney General, Kamala D.

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

Attorney General, Lance E. Winters, Special Assistant

Attorney General, A. Scott Hayward, Deputy Attorney

General, Office of the Attorney General for the State of

California, Los Angeles, California for Appellee.
4 ZAPIEN V. MARTEL

ORDER

The opinion filed November 9, 2015, and appearing at

805 F.3d 862, is AMENDED as reflected in the attached

amended opinion. The petition for panel rehearing or

rehearing en banc is DENIED. No additional petitions for

rehearing are permitted.

OPINION

KOZINSKI, Circuit Judge:

Conrad Zapien was convicted of first degree murder and

sentenced to death by the state of California. He challenges

both his conviction and sentence.

BACKGROUND

In 1987, Zapien was found guilty of killing Ruby

Gonzalez in her home by shooting her four times and

stabbing her five times. Zapien was a heroin addict,

desperate for money, and Ruby was the mistress of his

sister’s husband. The prosecution’s case at trial was that

Zapien intended to rob Ruby’s home after being told by his

sister that there was money and jewelry inside. The

prosecution theorized that Ruby surprised and confronted

Zapien, who killed her and fled town the next day. Zapien

spent the months after Ruby’s death living under pseudonyms

in various Christian homes, before eventually being found

and arrested in Arizona.

Before Zapien’s trial began, prosecutor Gary Van Camp

and his investigator Harry Heidt found a sealed envelope
ZAPIEN V. MARTEL 5

bearing the name of Zapien’s trial counsel. The envelope

contained an audio tape explaining the defense’s strengths

and weaknesses. Heidt later claimed that Van Camp told him

to listen to the tape, but he destroyed it instead. Heidt

eventually revealed the incident and Zapien’s counsel moved

to have all charges dismissed. The trial court denied the

motion, finding that Heidt had not listened to the tape.

The jury convicted Zapien of first degree murder and

found a “special circumstance” which made Zapien death

eligible—that the killing was committed during the course of

a burglary and an attempted robbery. The jury sentenced

Zapien to death.

Zapien appealed his conviction and sentence to the

California Supreme Court, which denied his appeal in a

lengthy reasoned opinion in 1993. See People v. Zapien, 846

P.2d 704 (Cal. 1993) (in bank). In 1996, Zapien filed a

federal habeas petition that was stayed pending exhaustion of

state remedies. Zapien then filed a state habeas petition in the

California Supreme Court. In 1998, the California Supreme

Court denied all but four of Zapien’s claims on timeliness

grounds and, in the alternative, summarily denied all of his

claims on the merits. Zapien then returned to federal court. 

Although he was granted an evidentiary hearing on some of

his ineffective assistance of counsel claims, the district court

ultimately denied them all.

DISCUSSION

1. The Tape

Zapien argues he was denied due process when Heidt

destroyed the defense strategy tape. The California Supreme
6 ZAPIEN V. MARTEL

Court concluded that, though Heidt “clearly acted wrongly in

disposing of the envelope and its contents, . . . this improper

act did not deprive [Zapien] of due process of law or

otherwise deny [him] a fair trial” because there was no

“‘conscious effort to suppress exculpatory evidence.’” 

Zapien, 846 P.2d at 723 (quoting California v. Trombetta,

467 U.S. 479, 488 (1984)). Zapien argues that this was an

unreasonable application of Trombetta and Arizona v.

Youngblood, 488 U.S. 51 (1988).

However, both Youngblood and Trombetta dealt with the

destruction of potentially exculpatoryevidence—not, as here,

the destruction of attorney-client work product. See

Youngblood, 488 U.S. at 57–58; Trombetta, 467 U.S. at

486–87. Zapien asserts the novel theory that destroying the

tape constituted the destruction of exculpatory evidence

because, had the tape been recovered, it could have been

tested. Such testing apparently would have revealed that the

tape had been listened to and thus that misconduct had

occurred. Revealing the alleged misconduct would have been

“exculpatory,” according to Zapien, because it would have

required the case be dismissed.

Zapien’s tortuous chain of reasoning is not supported, let

alone “clearlyestablished,” byYoungblood, Trombetta or any

other Supreme Court case. See 28 U.S.C. § 2254(d)(1) (a

writ of habeas corpus may not be granted unless the state

court reached a “decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States”). 

Zapien provides no authority for the proposition that a due
ZAPIEN V. MARTEL 7

process violation can be premised on the destruction of

information already known to the defense.1

Zapien next argues that it was unreasonable for the

California Supreme Court to adopt the Superior Court’s

factual finding that Heidt didn’t listen to the tape. Because

Zapien is unable to explain how listening to a defense

strategy tape constitutes a due process violation, he likely

wouldn’t have a viable claim even if the state court’s factual

determination had been unreasonable. See Wilson v.

Corcoran, 562 U.S. 1, 5–6 (2010) (holding that a state court’s

unreasonable factual determination is only relevant in a

federal habeas proceeding to the extent it results in a decision

that violates federal law). In any event, our review of a state

appellate court’s affirmance of a state trial court’s credibility

determination “is doubly deferential.” Briggs v. Grounds,

682 F.3d 1165, 1170 (9th Cir. 2012). “[U]nless the state

appellate court was objectively unreasonable in concluding

that a trial court’s credibility determination was supported by

[the record], we must uphold it.” Id. Here, even if

“[r]easonable minds reviewing the record might disagree” as

to the truthfulness of Heidt’s testimony, “that does not suffice

to supersede the trial court’s credibility determination.” Rice

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

1 Zapien’s claim is more readily cognizable as a violation of his right

to counsel under the Sixth Amendment, see United States v. Danielson,

325 F.3d 1054, 1070–71 (9th Cir. 2003), though, again, such a claim has

not been clearly established by the Supreme Court. In any event, Zapien

failed to bring this claim, either before us or in any prior state or federal

proceeding. 
8 ZAPIEN V. MARTEL

2. Confrontation Clause

Zapien next argues that his rights under the Confrontation

Clause were violated when the trial court admitted various

statements that his sister Inez—who refused to testify at

trial—made at a preliminary hearing.

2 Under the thengoverning standards of Ohio v. Roberts, 448 U.S. 56 (1980),

abrogated by Crawford v. Washington, 541 U.S. 36 (2004),

the “adequate opportunity to cross-examine [a] witness” at a

preliminary hearing typically provides “sufficient indicia of

reliability” for statements from that hearing to be introduced

at trial if the witness is unavailable. Id. at 73 (alteration

omitted) (internal quotation marks omitted). Nonetheless,

Zapien argues that the state court unreasonably applied

Roberts because the government knew Inez had told lies

during other parts of her preliminary hearing testimony

(though not in the portions read to the jury). Even assuming

Inez had in fact lied, Zapien fails to show that the California

Supreme Court’s decision was an unreasonable application of

Roberts. Preliminary hearing testimony falls within the

heartland of those statements deemed reliable under Roberts,

see 448 U.S. at 73 (noting that “guarantees of

trustworthiness” are found “in the accouterments of the

preliminary hearing itself”), and Zapien can point to no case

in which admitting preliminary hearing testimony has been

2 The trial court also allowed into evidence certain statements made by

Inez during a police interview. The California Supreme Court found that

Zapien was procedurally barred from raising the argument that admission

ofthese interrogation statements violated his confrontation rights, because

he did not contemporaneously object to their admission at trial. That

dismissal on a procedural ground constitutes an independent and adequate

basis for dismissing the claim, which we are barred from reviewing. See

Coleman v. Thompson, 501 U.S. 722, 750 (1991). 
ZAPIEN V. MARTEL 9

held to violate the Confrontation Clause solely because other

testimony by the absent witness is untrue.

Zapien claims that his confrontation rights were also

violated by the introduction at trial of multi-level hearsay

testimony by Mariella Perez, a friend of Inez’s daughter

Juanita. Perez testified that Juanita told her that Inez’s other

daughter, “Little Inez,” had told Juanita that Zapien arrived

at Inez’s house on the morning of the murder with blood on

his shirt. An investigator also played a recording of Perez

stating that Juanita told her that Little Inez saw Inez give

Zapien her car keys. Both Juanita and Little Inez testified at

trial: Little Inez denied seeing Zapien that day or talking to

Juanita, and Juanita likewise denied the conversation. The

California Supreme Court reasonably—indeed correctly—

applied the holding in California v. Green that “the

Confrontation Clause is not violated by admitting a

declarant’s out-of-court statements, as long as the declarant

is testifying as a witness and subject to full and effective

cross-examination.” 399 U.S. 149, 158 (1970). Zapien

argues here, as he did before the California Supreme Court,

that Green is inapplicable in the context of multiple hearsay. 

But he cites no authority for that proposition, and the

California Supreme Court reasonably rejected what it

considered to be an “arbitrary rule based solely upon the

number of levels of hearsay.” Zapien, 846 P.2d at 717.

Zapien also argues that the admission of Perez’s

statements was such an egregious violation of California

evidentiary law that it constituted a due process violation. It

is not at all clear that there was a violation of California law,

let alone one so fundamentally unfair that it amounted to a

due process violation. In any event, we’ve held that, “[u]nder

AEDPA, even clearly erroneous admissions of evidence that
10 ZAPIEN V. MARTEL

render a trial fundamentally unfair may not permit the grant

of federal habeas corpus relief if not forbidden by clearly

established [Supreme Court precedent].” Holley v.

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

quotation marks omitted). Because there is no Supreme

Court case establishing the fundamental unfairness of

admitting multiple hearsay testimony, Holley prohibits us

from finding in Zapien’s favor on this due process claim.

3. Ineffective Assistance of Counsel at the Guilt

Phase

Zapien brings several ineffective assistance of counsel

claims, all of which were summarily denied by the California

Supreme Court.3 When confronted with a state court’s

summary denial, we “must determine what arguments or

theories . . . could have supported . . . the state court’s

decision; and then . . . ask whether it is possible fairminded

jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of [the

Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102

(2011). Our review of Zapien’s ineffective assistance claims

is doubly deferential: “We take a highly deferential look at

counsel’s performance through the deferential lens of

3 Zapien’s ineffective assistance claims were first presented to the state

courts in a habeas petition over three years after the denial of Zapien’s

direct appeal. In addition to summarily denying these claims on the

merits, the California Supreme Court dismissed them on timeliness

grounds. They should therefore be procedurally defaulted. However, the

state does not raise procedural default before us, nor did it do so before the

district court. Although we may raise the issue of procedural default sua

sponte under exceptional circumstances, seeDay v. McDonough, 547 U.S.

198, 209 (2006), we decline to do so here.
ZAPIEN V. MARTEL 11

§ 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011)

(internal quotation marks and citation omitted).

Zapien first argues that his trial counsel was ineffective

for not vigorously impeaching the testimony of Ruby’s

daughter Marci. Thirteen-year-old Marci was an eyewitness

to the murder and testified that during the attack she heard her

mother say, “Chato, leave me alone. I will give you the

money and the jewelry.” “Chato” was Zapien’s brother—

who resembled Zapien—and was in prison at the time of the

killing. Marci’s testimony was harmful to Zapien both

because it showed that he looked like the assailant and

because it suggested he entered the home with an intent to

commit a robbery, the “special circumstance” that made

Zapien death eligible. Zapien argues that his trial counsel

should have impeached Marci with statements she made

during Zapien’s preliminary hearing—and statements made

to neighbors and the police—where she either failed to

mention “the money and the jewelry” or implied that Ruby

was offering the intruder “the money and the jewelry” rather

than responding to a demand. Zapien also argues that trial

counsel should have attempted to undermine Marci’s account

with testimony by a child memory expert, who would

apparently have explained that, since Marci had just awoken

from a violent dream, her memories of the attack may have

been faulty.

However, a fairminded jurist could conclude that counsel

made a strategic decision in how he approached Marci’s

impeachment. Even if counsel had tried to impeach Marci in

the manner Zapien now suggests, a jury would likely still

have found her testimony credible. Marci’s physical

description of the attacker wearing a plaid shirt and a vest

was corroborated by the discovery of an abandoned plaid
12 ZAPIEN V. MARTEL

shirt and vest covered in Ruby’s blood. Marci was by all

accounts highly sympathetic on the stand. And her memory

of the event was vivid and prolonged—involving not merely

witnessing the attack, but also hitting the assailant with a

broom and trying to protect her sisters. Aggressively

attempting to impeach Marci’s testimony may therefore have

alienated the jury, without doing much to undermine her

credibility. Zapien’s trial counsel took a different tack. He

stressed that Marci’s testimony, even if true, failed to

establish beyond a reasonable doubt that Zapien was the

assailant. Under the circumstances, we cannot conclude that

all fairminded jurists would say such a strategy rendered

counsel’s assistance ineffective. See Harrington, 562 U.S. at

102; Strickland v. Washington, 466 U.S. 668, 681, 688

(1984).

Zapien next claims that trial counsel should have

introduced the testimony of Ruby’s two other children, Joni

and Jessica, who also witnessed the murder. Joni told the

police that the attacker was wearing a dark ski mask, and both

Joni and Jessica said they heard a car speeding away after the

attack. Zapien claims that the ski mask testimony would have

undermined Marci’s account that Ruby thought the assailant

was Chato, and the car sound would have undermined

Mariella Perez’s story that Zapien needed a car from Inez

after the murder.

However, at the time of the murder, Joni and Jessica were

eight and six respectively, much younger than the thirteenyear-old Marci. Not only was Marci’s storymore precise and

fleshed out than those of her sisters, it was also corroborated

by the discovery of the plaid shirt and vest. Because of their

youth, Joni and Jessica may have been unpredictable on the

stand, and putting them through the ordeal of testifying could
ZAPIEN V. MARTEL 13

have alienated the jury. There was only a small, perhaps

infinitesimal, possibility that a jurywould have believed them

rather than Marci. On balance, the risks associated with

calling them to testify outweighed the potential benefits. 

Accordingly, it is reasonable to conclude that counsel wasn’t

ineffective in failing to call Joni and Jessica as witnesses.

Zapien next argues that counsel should have moved to

exclude the testimony of Lena Chacon and Michael Jimenez,

two witnesses Zapien met at a Christian home shortly after

the murder. Chacon testified at trial that Zapien told her that

he shot someone during the robbery of a store and was using

a pseudonym because he was wanted for murder in

California. Jimenez testified that Zapien had told him about

two separate shootings—one in which he shot someone, who

Jimenez thought was a woman, and another during the

robbery of a store. Zapien argues that trial counsel was

ineffective for failing to move in limine to exclude Chacon’s

and Jimenez’s testimony as irrelevant to Ruby’s murder. 

However, a review of the record reveals little basis upon

which such a motion could plausibly have been successful. 

While both witnesses made vague and confusing statements

during the preliminary hearing, their testimony clearly had

the potential of being highly probative. Competent counsel

could reasonablyhave concluded that moving to exclude their

testimony on the grounds Zapien now suggests would have

seemed frivolous.

Zapien also criticizes counsel for eliciting testimony from

Chacon at trial regarding the apparent store-robbery killing. 

But, review of the cross-examination transcript reveals that

counsel acted reasonably. Chacon mentioned on the stand

that Zapien had admitted shooting someone, but didn’t

specify who the victim was. At that point, counsel made the
14 ZAPIEN V. MARTEL

strategic decision to ask about the possibility of a second

shooting in order to create doubt as to whether Zapien was

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.

Zapien also claims that counsel was ineffective by failing

to object to several instances of inadmissible and prejudicial

hearsay testimony. Zapien claims counsel should have

objected on Confrontation Clause grounds to Sergeant

Stevens’s testimony about what Inez told him. But counsel

had cross-examined Inez at a preliminary hearing, and the

California Supreme Court found that the same interest and

motive existed in that cross-examination as at 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, 72–73 (1980), abrogated

by Crawford v. Washington, 541 U.S. 36 (2004). The other

hearsay statements Zapien complains about were cumulative

of the evidence offered at trial and thus not prejudicial, even

assuming that counsel should have objected to them.

Finally, Zapien argues that counsel was ineffective for

failing to introduce evidence suggesting that Zapien had a

broken hand at the time of the murder and was therefore

likely incapable of killing Ruby. Zapien argued in his state

habeas petition that trial counsel should have introduced

testimony by Dr. James Day, a radiologist who allegedly

treated Zapien for a hand injury twelve days before Ruby’s

murder. According to Zapien, Day’s testimony would have

shown that Zapien was injured, had a cumbersome cast

placed on his right hand and was likely physically incapable

of making the deep stab wounds found on Ruby’s body. But

even if counsel was in possession of medical records showing
ZAPIEN V. MARTEL 15

that Zapien was treated for a fracture, a fairminded jurist

could conclude that counsel’s failure to pursue this line of

defense did not amount to ineffective assistance. A

fairminded jurist could also conclude that this single piece of

medical evidence would not have created a reasonable

likelihood of a different outcome at trial, given the other

evidence of Zapien’s guilt and, most significantly, the fact

that the hand injury (as Zapien concedes) would not have

made the attack impossible.

4. Ineffective Assistance of Counsel at the Sentencing

Phase

Zapien argues that counsel was ineffective for failing to

introduce various pieces of mitigating evidence at the

sentencing phase. Zapien first claims that counsel should

have introduced further evidence regarding his traumatic

upbringing, which would have revealed that Zapien’s father

was a violent alcoholic who brutally beat Zapien’s mother in

front of the children and abandoned the family when Zapien

was five. Zapien’s father later returned and carried on a

thirteen-year incestuous relationship with Zapien’s sister that

ended when Zapien’s father shot her to death before killing

himself.

Meanwhile, Zapien’s mother worked as a prostitute and

a “coyote” smuggling undocumented immigrants across the

Mexican border. Two men with whom she was involved

impregnated two of Zapien’s sisters. Zapien’s mother also

carried a gun and drank at local bars, got men drunk and stole

their wallets, and neglected her children, who grew up on the

streets malnourished and hungry. She frequently beat Zapien

and his siblings.
16 ZAPIEN V. MARTEL

In addition, evidence in the habeas record indicates that

Zapien’s grandmother, with whom Zapien lived, also worked

as a coyote. She routinely abused Zapien, whipping him with

a rubber hose, often for acts committed by a sibling. She

forced Zapien and his siblings to perform manual labor in the

fields, and threw rocks at them when they took a break from

working. On one occasion, she killed Zapien’s pet rabbit and

served it to him for dinner, which Zapien learned only after

he had eaten the meal.

Zapien’s uncle, who also lived in the grandmother’s

house, was a major drug dealer with multiple drug

convictions; he used and sold heroin, and made drugs

available to Zapien from a young age. Zapien was sentenced

to juvenile hall for drug- and alcohol-related offenses when

he was fifteen years old. He was a heroin addict by the age

of twenty.

In addition to his drug addiction, Zapien had a history of

blackouts and was diagnosed with syphilis. He had also been

exposed to pesticides while working as a tree sprayer, and

suffered numerous blows to the head at a young age.

Zapien contends that there is a reasonable probability that

this sordid background evidence would have moved at least

one juror to spare Zapien’s life, and that it was unreasonable

for the California Supreme Court to conclude otherwise,

particularly given that Zapien’s jury—without having heard

this evidence—deliberated for three days before returning a

death verdict.

The importance and relevance of social history and

mental health at the sentencing phase of a capital case is

clearly established by the United States Supreme Court, and
ZAPIEN V. MARTEL 17

was clearly established both at the time of defendant’s

penalty phase in 1987 and at the time the California Supreme

Court denied Zapien’s ineffective assistance of counsel

claims in 1998. See California v. Brown, 479 U.S. 538, 545

(1987) (O’Connor, J., concurring); Eddings v. Oklahoma,

455 U.S. 104, 114–15 (1982); Lockett v. Ohio, 438 U.S. 586,

604–05 (1978) (plurality opinion); Woodson v. North

Carolina, 428 U.S. 280, 303–05 (1976) (plurality opinion). 

However, the Supreme Court has clarified that Strickland

does not require penalty phase counsel to “investigate every

conceivable line of mitigating evidence.” Wiggins v. Smith,

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

Here, defense counsel sought out—and introduced—a

considerable amount of mitigating evidence. For example,

counsel called a cultural anthropologist who testified as an

expert about the “physical, social, [and] economic isolation,”

in the La Colonia community in Oxnard. Counsel also

introduced testimony from a medical doctor about the effects

of heroin addiction, and solicited character testimony from

Zapien’s friends and family. Through this evidence, defense

counsel introduced a picture of Zapien as a kind and

affectionate child who was raised in an overcrowded, druginfested and impoverished “slum” without parental

supervision or a male role model. Counsel also appealed to

the notion of lingering doubt by introducing information

regarding the prosecution’s possible misconduct, which

called into question the reliability of the prosecution’s

evidence. “[C]ounsel’s decision not to mount an all-out

investigation into petitioner’s background in search of

mitigating circumstances was supported by reasonable

professional judgment.” Burger v. Kemp, 483 U.S. 776, 794

(1987); cf. Porter v. McCollum, 558 U.S. 30, 39–40 (2009)

(per curiam) (finding deficient performance during the
18 ZAPIEN V. MARTEL

penalty phase where “counsel did not even take the first step

of interviewing witnesses or requesting records” and “thus

failed to uncover and present any evidence of [petitioner’s]

mental health or mental impairment”); Wiggins, 539 U.S. at

533 (finding deficient performance during the penalty phase

where “counsel’s investigation of petitioner’s background

was limited to [two court-commissioned] records,” and

holding that “strategic choices made after less than complete

investigation are reasonable only to the extent that reasonable

professional judgments support the limitations on

investigation” (internal quotation marks and citation

omitted)).

Furthermore, as the district court correctly found,

mitigating evidence of drug dependency and an abusive

family history “can be a two-edged sword that [a jury] might

find to show future dangerousness” or use to conclude that a

defendant is “simply beyond rehabilitation.” Pinholster,

563 U.S. at 201(internal quotation marks omitted) (quoting

Atkins v. Virginia, 536 U.S. 304, 321 (2002)). Given that

“strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually

unchallengeable,” Strickland, 466 U.S. at 690, the California

Supreme Court was not unreasonable in denying this claim.

Zapien also argues that trial counsel should have

introduced evidence of Zapien’s psychiatric and neurological

problems. However, it is not clear that Zapien actually

suffers from any such problems. All that was presented for

state habeas review was evidence that Zapien’s family

members suffered from mental illness, and that he was

exposed to various things—like drugs, pesticides and blows

to the head—that could have led to him developing a brain

injury. The closest thing to an actual diagnosis of a mental
ZAPIEN V. MARTEL 19

disorder is a doctor’s testimony during Zapien’s federal

evidentiary hearing that he may have suffered from PTSD. 

However, that evidence was never presented in Zapien’s state

petition, and we are not permitted to consider it here. 

Pinholster, 563 U.S. at 181–82, 186. And, even if it were

before us, there is no indication that counsel knew or should

have known that Zapien suffered from such a disorder. 

Failure to introduce evidence of PTSD, therefore, didn’t

amount to ineffective assistance of counsel.

Zapien next argues that counsel was ineffective for failing

to properly prepare two experts at sentencing. Both experts

gave generic testimony—one about the socioeconomic profile

of Zapien’s neighborhood and the other about the effects of

heroin abuse—but neither expert met with Zapien or tailored

his testimony to Zapien’s particular circumstances. Zapien

can point to no case holding that failure to have an expert

meet with a defendant constitutes ineffective assistance. And,

in any event, if defense counsel had presented experts who

“personalized” their testimony to Zapien, reasonable jurists

could debate whether such expert testimony would have

opened the door to evidence (or more evidence) regarding

Zapien’s heroin addiction as well as whether Zapien suffered

from anti-social personality disorder—topics that may not

have inured to Zapien’s benefit in the eyes of the jury.

Finally, Zapien argues that counsel was ineffective

because he didn’t adequately rebut the prosecution’s use of

Zapien’s prior manslaughter conviction as an aggravating

factor. According to Zapien, counsel failed to explain to the

jury that the victim in that crime had attacked and raped

Zapien’s girlfriend a few days before the killing. Instead,

trial counsel sought to obscure the particular facts of Zapien’s
20 ZAPIEN V. MARTEL

prior crime and emphasize the lower degree of culpability

required for a manslaughter conviction.

In Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam),

the Supreme Court reversed this court’s grant of habeas relief

based on the purported prejudicial ineffective assistance of

Belmontes’s trial counsel and reinstated the petitioner’s death

sentence. Belmontes was convicted of murdering a woman

during a burglary. Id. at 15. At sentencing, Belmontes’s

counsel presented nine witnesses who testified about

Belmontes’s difficult childhood. Id. at 19. Nevertheless,

Belmontes argued that counsel should have offered more

mitigating evidence. Id. at 16. However, Belmontes had a

prior conviction for accessory after the fact to voluntary

manslaughter. Id. at 17. There was substantial evidence that

Belmontes had, in fact, committed murder but pleaded guilty

to a lesser offense, and counsel built his mitigation strategy

around the “overriding need” to exclude the details of

Belmontes’s criminal history. Id. at 18. The Supreme Court

held that trial counsel had reasonably tailored his mitigation

case to avoid opening the door to the aggravating evidence of

Belmontes’s manslaughter conviction, which would have

become admissible had the unoffered evidence been received. 

See id. at 25–26. As the Supreme Court explained, “[a]

heavyhanded case to portrayBelmontes in a positive light . . .

would have invited the strongest possible evidence in

rebuttal—the evidence that Belmontes was responsible for

not one but two murders.” Id. at 25. 

A fairminded jurist could conclude that counsel faced a

similar dilemma regarding the details of Zapien’s prior

conviction. Zapien’s jury knew that he had previously been

convicted for stabbing a man to death with a machete. And,

while Zapien pled to voluntary manslaughter, there was
ZAPIEN V. MARTEL 21

evidence that the killingwas actuallypremeditated—evidence

that would likely have been revealed to the jury had counsel

elaborated on the details of the attack. Accordingly, we must

conclude that the California Supreme Court could have

reasonably determined that Zapien failed to show that

counsel’s representation was constitutionally inadequate, or

that he suffered prejudice from the lack of additional

mitigating evidence.

5. Juror Prejudice

Zapien’s final argument is that his right to an impartial

jury was violated when the trial court failed to dismiss a juror

who admitted to hearing a news report that suggested Zapien

would hurt his guards if he were given the death penalty. The

trial court held a hearing in which the judge questioned the

juror, and eventually ruled that he was capable of being

impartial. The California Supreme Court rejected Zapien’s

argument that the trial court erred in this credibility

determination, and concluded that the juror’s knowledge of

the news report was harmless.

Zapien argues that the California Supreme Court’s

decision was an unreasonable application of Mattox v. United

States, 146 U.S. 140 (1892), which established a rebuttable

presumption of prejudice when a juror is exposed to

information garnered outside of the trial. However, in

substance, the California Supreme Court applied the Mattox

presumption when it held that the trial court properly

determined the juror could be impartial. Once again, our

posture is doubly deferential: Zapien 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 the juror was prejudiced. 
22 ZAPIEN V. MARTEL

Zapien has no non-speculative basis for that conclusion. 

Instead, he effectively advocates for a per se rule in which

exposure to any out-of-trial information automatically

requires juror dismissal. Such an approach is plainly

inconsistent with Mattox and its progeny. As with Zapien’s

other claims, the California Supreme Court’s decision was at

least reasonable.

AFFIRMED.