667 F.3d 965 (9th Cir. 2011), 08-99025, Gonzalez v. Wong

Docket Nº:08-99025.
Citation:667 F.3d 965
Opinion Judge:CLIFTON, Circuit Judge:
Party Name:Jesse GONZALEZ, Petitioner-Appellant, v. Robert WONG, Warden of California State Prison at San Quentin, Respondent-Appellee.
Attorney:Robert Berke, Santa Monica, CA; Mark E. Overland (argued), Scheper Kim & Overland LLP, Los Angeles, CA, for the petitioner-appellant. James William Bilderback II, Supervising Deputy Attorney General, Los Angeles, CA; Joseph P. Lee (argued), Deputy Attorney General, Los Angeles, CA, for the respon...
Judge Panel:Before: DIARMUID F. O'SCANNLAIN, WILLIAM A. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges. Opinion by Judge CLIFTON; Partial Concurrence and Partial Dissent by Judge W. FLETCHER; Partial Dissent by Judge O'SCANNLAIN. W. FLETCHER, Circuit Judge, concurring in part: O'SCANNLAIN, Circuit Judge, d...
Case Date:December 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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667 F.3d 965 (9th Cir. 2011)

Jesse GONZALEZ, Petitioner-Appellant,

v.

Robert WONG, Warden of California State Prison at San Quentin, Respondent-Appellee.

No. 08-99025.

United States Court of Appeals, Ninth Circuit.

December 7, 2011

Argued and Submitted Jan. 10, 2011.

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Robert Berke, Santa Monica, CA; Mark E. Overland (argued), Scheper Kim & Overland LLP, Los Angeles, CA, for the petitioner-appellant.

James William Bilderback II, Supervising Deputy Attorney General, Los Angeles, CA; Joseph P. Lee (argued), Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Lourdes G. Baird and James V. Selna, District Judges, Presiding. D.C. No. 2:95-CV-02345-JVS.

Before: DIARMUID F. O'SCANNLAIN, WILLIAM A. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge CLIFTON; Partial Concurrence and Partial Dissent by Judge W. FLETCHER; Partial Dissent by Judge O'SCANNLAIN.

OPINION

CLIFTON, Circuit Judge:

Jesse Gonzales 1 was convicted in a California state court of first degree murder, with a finding of the special circumstance of killing a law enforcement officer engaged in the lawful pursuit of his duties, and was sentenced to death. The California Supreme Court affirmed the conviction and sentence and denied Gonzales's petition for post-conviction relief. People v. Gonzalez, 51 Cal.3d 1179, 275 Cal.Rptr. 729, 800 P.2d 1159 (1990). The district court denied his petition for habeas corpus under 28 U.S.C. § 2254, and he appeals that denial to us.

Gonzales's appeal requires us to consider and apply the decision of the United States Supreme Court earlier this year in Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). In that decision, the Court held that in reviewing the petition of a state prisoner for habeas relief under the Antiterrorism and Effective Death Penalty Act (" AEDPA" )

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when the prisoner petitions for review of a claim adjudicated in the state courts on the merits under 28 U.S.C. § 2254(d)(1), a federal court may consider only the record that was before the state court when it adjudicated the claim.

One of the arguments made by Gonzales to the California Supreme Court and rejected by that court was that the prosecutor failed to turn over exculpatory material as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and related cases. The argument specifically referred to information concerning one prosecution witness, a jailhouse informant named William Acker. Acker testified during the guilt and penalty phases of Gonzales's trial that Gonzales had admitted that he intentionally killed the deputy sheriff, in effect confessing to Acker that he was guilty of the crime and special circumstance alleged. Some material regarding Acker was turned over by the prosecutor to Gonzales's defense counsel prior to trial, but other material, concerning Acker's mental state and credibility, was not. Despite diligent effort by Gonzales, some of the documents that were not turned over did not become known to Gonzales until they were obtained during the federal habeas proceeding in district court, after the state court had rendered its decision. Those materials were not, therefore, part of the state court record.

Under Pinholster, we may not consider those later-discovered materials in reviewing Gonzales's federal habeas claim. Because it appears to us that those materials strengthen Gonzales's Brady claim to the point that his argument would be potentially meritorious— that is, that a reasonable state court might be persuaded to grant relief on that claim— it is not appropriate for us to ignore those materials. We remand that portion of the case 2 to district court with instructions to stay the proceeding in order to give Gonzales an opportunity to return to state court and present his claim with the benefit of the materials that were not available and not part of the record at the time of the California Supreme Court decision. By that process, we seek to satisfy the intent of AEDPA, as discussed in Pinholster, 131 S.Ct. at 1398, that habeas claims of state prisoners be channeled in the first instance to state court.

We are not persuaded by the other arguments presented by Gonzales. Thus, we affirm the judgment of the district court as to most issues, but vacate the part of the judgment that denied the Brady claim (and related ineffective assistance of counsel claim, see note 2) and remand that claim to the district court with instructions to stay proceedings to permit Gonzales to present the claim to the California Supreme Court.

I. Background

Eleven plain-clothed sheriff deputies arrived in three unmarked vehicles at the home of Gonzales's parents in La Puente to execute a search warrant on the evening of May 29, 1979. The search warrant was based on an undercover narcotics purchase made several days earlier from Gonzales's

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cousin at the residence. Four of the deputies approached the front door and one of them knocked and stated " Los Angeles Sheriff's Department. We have a search warrant. Open the door." Several seconds later the knock and announce was repeated.

The deputies heard what sounded like running and, fearing that narcotic evidence was being destroyed, they attempted to enter the house forcefully. Deputy Robert Esquivel eventually kicked in the door and his momentum carried him into the entryway. Esquivel saw Gonzales standing at the end of the hallway with a shotgun pointed at the front door. The shotgun blast missed Esquivel but hit Deputy Jack Williams who entered the house behind him. Williams died as a result of the shotgun wound. Gonzales was shot and apprehended by the deputies.

Gonzales was charged with first degree murder with the special circumstance of killing a peace officer who was engaged in the lawful pursuit of his duties. His trial was bifurcated into two phases, a guilt phase and a penalty phase. Each phase was tried before a different jury.

During the guilt phase, the facts of the shooting, as described above, were not disputed by the defense. Gonzales's defense was that he had not heard the officers' announcements and instead believed the officers were members of a rival gang, known as the Bassetts, coming to kill him and his cousin. The central question at trial was Gonzales's understanding and intent at the time of the shooting.

The prosecution presented significant evidence showing that Gonzales could not have believed that the officers were gang members. All of the surviving deputies who were by the front door testified as to the manner of the entry and the shooting. In particular, they testified that while they were dressed in casual clothing, all of them, including the officer who was killed, had their badges either affixed to their jackets or in their hands. They also testified that they twice announced that they were police before entering the home. Additionally, an officer with expertise in gang-related crime testified that La Puente was no longer an area of high gang activity. He testified that almost all gang violence consisted of drive-by shootings, conduct very different from the actions of the officers serving the warrant. He also described the typical gang warrior as a Latino teenager and gave reasons why the officers, all of whom were in their 30's and, with the exception of Esquivel, were white, could not have been mistaken for gang warriors. Thus, the prosecution argued, Gonzales must have known that he was shooting at law enforcement officers, not rival gang members.

In addition, the prosecution presented evidence to support the contention that Gonzales not only knew he was shooting at officers but that he knew in advance that the police were coming and planned on using the raid as an opportunity to kill a police officer. This theory was based almost entirely on the testimony of William Acker, another prisoner held in the same jail as Gonzales. Acker testified that while in jail, Gonzales admitted to knowing that the men were officers because he had received a phone call informing him of the raid, and further that he planned to " bag a cop" when the officers served the warrant. Acker also testified that Gonzales had planned in advance to say that he believed the officers were Bassett members.

Gonzales sought to counter the prosecution's evidence. He attempted to show that he reasonably could have believed the officers were gang members. He presented evidence of other gang-related violence in La Puente. He relied on the testimony of two officers with whom he spoke shortly

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after the shooting. Both officers testified that Gonzales told them he had believed the officers were Bassetts.3 To explain why it was reasonable for Gonzales to believe that the Bassetts would storm his house to kill him, Gonzales sought to establish that he had been a former leader of the La Puente gang, rivals of the Bassetts.

Gonzales testified in his own defense. His testimony was that he was inside the house when he heard the cars pull into the driveway. He went to the window but did not recognize the men. He testified that he focused on a Latino male who he said was the front seat passenger in one of the cars. He stated that he believed that the men were Bassetts. He denied seeing badges or hearing the announcements.

While Gonzales denied knowingly killing a police officer, his testimony about the shooting was inconsistent...

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