Zapien v. Davis

• Decision Date: 09 November 2015
• Docket Number: No. 09–99023,09–99023
• Citation: 849 F.3d 787
• Parties: Conrad ZAPIEN, Petitioner–Appellant, v. Ronald DAVIS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

849 F.3d 787

Conrad ZAPIEN, Petitioner–Appellant,

v.Ronald DAVIS,^* Respondent–Appellee.

No. 09–99023

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2014—San Francisco, California

Filed November 9, 2015

Amended December 16, 2016

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.

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

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 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 , 4 Cal.4th 929, 17 Cal.Rptr.2d 122, 846 P.2d 704 (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 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 , 17 Cal.Rptr.2d 122, 846 P.2d at 723 (quoting California v. Trombetta , 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ). Zapien argues that this was an unreasonable application of Trombetta and Arizona v. Youngblood , 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

However, both Youngblood and Trombetta dealt with the destruction of potentially exculpatory evidence—not, as here, the destruction of attorney-client work product. See Youngblood , 488 U.S. at 57–58, 109 S.Ct. 333 ; Trombetta , 467 U.S. at 486–87, 104 S.Ct. 2528. 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 "clearly established," by Youngblood , 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 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, 131 S.Ct. 13, 178 L.Ed.2d 276 (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, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).

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 then-governing standards of Ohio v. Roberts , 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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, 100 S.Ct. 2531 (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 , see448 U.S. at 73, 100 S.Ct. 2531 (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 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, 90 S.Ct. 1930, 26 L.Ed.2d 489 (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 , 17 Cal.Rptr.2d 122, 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...