760 F.3d 947 (9th Cir. 2014), 11-17051, Fong Soto v. Ryan

Docket Nº:11-17051
Citation:760 F.3d 947
Opinion Judge:TIMLIN, District Judge:
Party Name:MART
Attorney:Amy Armstrong and Emily Skinner, Arizona Capital Representation Project, Tucson, Arizona, for Petitioner-Appellant. Thomas C. Horne, Attorney General; Kent E. Cattani, Division Chief Counsel; Joseph T. Maziarz, Section Chief Counsel; Aaron J. Moskowitz, Assistant Attorney General, Criminal Appeal...
Judge Panel:Before: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and Robert J. Timlin, Senior District Judge.[*] Opinion by Judge Timlin; Dissent by Judge Schroeder. SCHROEDER, Circuit Judge, dissenting.
Case Date:July 25, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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760 F.3d 947 (9th Cir. 2014)

MARTÍN RAÙL FONG SOTO, Petitioner-Appellant,

v.

CHARLES L. RYAN and CHARLES GOLDSMITH, Warden, Respondents-Appellees

No. 11-17051

United States Court of Appeals, Ninth Circuit

July 25, 2014

Argued and Submitted, San Francisco, California: September 10, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Arizona. D. Ct. No. CV-04-68-TUCDCB. David C. Bury, District Judge, Presiding.

Habeas Corpus

The panel affirmed the district court's denial of an Arizona state prisoner's 28 U.S.C. § 2254 habeas corpus petition challenging convictions of murder, robbery and attempt, and aggravated robbery and attempt arising from a triple homicide.

The panel held that the Arizona courts did not engage in an unreasonable determination of the facts or an unreasonable application of controlling federal law when denying the petitioner's claim under Napue v. Illinois that the prosecution knowingly elicited and used the false testimony of a detective regarding when the petitioner became a suspect in this case.

The panel held that the Arizona courts likewise did not engage in an unreasonable determination of facts or an unreasonable application of controlling federal law when denying petitioner's claim that his trial counsel provided ineffective assistance of counsel by calling as a witness, in pursuit of a mistaken-identity defense, a state informant who otherwise would not have testified at the trial.

Dissenting, Judge Schroeder wrote that the petitioner did not receive a fair trial and the district court should have granted him habeas relief because the jury convicted the petitioner after a trial marked by perjury and incompetence.

Amy Armstrong and Emily Skinner, Arizona Capital Representation Project, Tucson, Arizona, for Petitioner-Appellant.

Thomas C. Horne, Attorney General; Kent E. Cattani, Division Chief Counsel; Joseph T. Maziarz, Section Chief Counsel; Aaron J. Moskowitz, Assistant Attorney General, Criminal Appeals/Capital Litigation Division, Phoenix, Arizona, for Respondents-Appellees.

Professor Susan Martyn, University of Toledo College of Law, Toledo, Ohio; Emeritus Professor Gary Lowenthal, Arizona State University, Tempe, Arizona, for Amicus Curiae Ethics Bureau at Yale.

Before: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and Robert J. Timlin, Senior District Judge.[*] Opinion by Judge Timlin; Dissent by Judge Schroeder.

OPINION

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TIMLIN, District Judge:

Arizona state prisoner Martí n Raùl Fong Soto (" Petitioner" or " Fong" )1 appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury convictions of murder, robbery and attempt, and aggravated robbery and attempt arising from a triple homicide. A separate jury convicted Petitioner's co-defendants, Christopher McCrimmon (" McCrimmon" ) and Andre Minnitt (" Minnitt" ), of similar charges in later prosecutions brought by the same prosecutor in Petitioner's case. However, McCrimmon was acquitted after his second trial and Minnitt's convictions were vacated after three trials once prosecutorial misconduct during Minnitt's and McCrimmon's first two trials was uncovered. Specifically, the prosecutor was found to have knowingly elicited from Detective Joseph Godoy of the Tucson Police Department false testimony about how and when the three defendants became suspects in the case in order to bolster the credibility of the key state witness, Keith Woods, whose testimony tied the defendants to the crime. The prosecutor was later disbarred for his misconduct.

Petitioner raises two certified claims on appeal. First, he contends that the Arizona courts unreasonably rejected his claim that, during his trial, the prosecution also knowingly elicited and used the false testimony of Detective Joseph Godoy regarding when Petitioner became a suspect in this case in order to secure his conviction. Second, he argues that the Arizona courts unreasonably rejected his claim that his counsel was ineffective for calling state informant Keith Woods (" Woods" ) as a witness when Woods otherwise would not have testified at Petitioner's criminal trial.2

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Crimes of Conviction

Petitioner's convictions arose out of the June 24, 1992 lethal shootings at the El Grande Market in Tucson, Arizona, of Fred Gee (" Gee," the market manager), Ray Arriola (a market employee), and Zewan Huang (Gee's elderly uncle). State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610, 614 (Ariz. 1996). Shortly after the shootings, police found an abandoned car three blocks from the market. Id. The car had been left mid-turn, rather than parked near the curb. Id. at 624-25. The doors were unlocked, the rear windows rolled down, and the hood was warm to the touch. Id. at 625. McCrimmon's fingerprint was found on the driver's side window. Id. at 614, 625.

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The market was in the process of closing at the time the murders took place. Id. at 615. Gee's body was found near the open cash register at the liquor counter. The cash register had a sale rung up on it, and nearby on the counter were bags containing a cucumber and three lemons. Id. Petitioner's fingerprints were found on the bags. Id. Also, on the floor near Gee's body were two foodstamps not yet stamped with the market's name. Petitioner's fingerprint was found on one of the stamps. Id. At least $175.52 was missing from the store. Id.

B. State Informant Keith Woods and Information about a " Chachi"

Shortly after being released from prison in late August 1992, Woods was arrested by Tucson police on a drug charge. Id. In exchange for his release and the dismissal of that charge, which could have subjected Woods to 25 years in prison, Woods agreed to act as a state informant. Id. at 616. On September 8, 1992, the lead homicide detective in the El Grande murder case, Joseph Godoy (" Godoy" or " Detective Godoy" ), interviewed Woods because of information Woods represented he had about the triple homicide. Id. at 615. Godoy initially engaged in an untaped interview with Woods that lasted approximately 30 to 45 minutes, after which police transferred Woods to a " bugged" room in order to tape his statement. State v. Minnitt, 203 Ariz. 431, 55 P.3d 774, 777 (Ariz. 2002).

During the taped portion of the interview, Woods stated that McCrimmon and Minnitt had confessed to him that they had completed the El Grande murders with a third person identified as " Cha-Chi" 3 who used to work at the market. Woods stated that Chachi " masked down or whatever" during the shooting. Woods also represented that he had never seen or met Chachi before and could not describe what Chachi looked like. Woods relayed that McCrimmon and Minnitt confessed to him on the first day that Woods was released from prison in late August 1992.

Woods' September 8, 1992 statement was not the first date on which Detective Godoy learned of a Chachi being a possible suspect in the El Grande murders. In an investigative report dated September 9, 1992, Godoy stated that on August 31, 1992, he received a call from an unknown male who stated that " Martin Soto and a black guy named McKinney" committed the shootings. According to the September 9, 1992 report, later that same day, a Detective Zimmerling (" Zimmerling" ) advised Godoy that a female confidential informant represented that " a Hispanic male named Chachi and a black male named Christopher McCrimmon" were involved in the triple homicide. Godoy went on to relate in his report that on September 1, 1992, he obtained information from the Tucson Police Department's Gang Unit that Petitioner Fong was an associate of McCrimmon's, that his AKA was Martin Soto, and that he also went by the name Chachi.

In another investigative report dated September 15, 1992, Godoy related slightly different facts about when and from whom he learned about a Chachi. For example, in this subsequently dated report, Godoy related that on August 31, 1992, the unknown male caller identified McKinney and a Chachi (not a Martin Soto) as involved in the El Grande murders. Godoy also related that on that same day, Zimmerling called to state that a confidential informant had identified as suspects a

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black male known as Christopher McCrimmon and a Mexican male known as Martin Soto or Chachi. In the report, Godoy represented that he then completed a records check on Christopher McCrimmon and Martin Soto, but that no information came back on a Martin Soto.

As a result, Godoy went to the El Grande Market to see if Tommy Gee, a relative of the deceased market manager, recognized either name. Tommy Gee said that he did not but that an individual named Martin Fong, i.e., Petitioner, used to work at the market. Godoy stated in his report that he then completed a records check on Martin Fong which was successful and revealed that Martin Fong used the name Martin Soto. Godoy also related that the next day, on September 1, 1992, Detective Fuller with the Tucson Police Department told him that McCrimmon was best friends with an individual named Martin Fong or Martin Soto.

As reflected in the September 15, 1992 report, on September 2, 1992, Detective Godoy helped Detective Fuller arrest Minnitt and McCrimmon for a robbery committed in Tucson at Mariano's Pizzeria on August 26, 1992. Detective Godoy questioned each of them about their involvement in the El Grande murders, and both denied any involvement in those murders or in the Mariano's Pizzeria robbery. McCrimmon also denied having seen Fong recently, and Minnitt...

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