Ochoa v. Davis

• Decision Date: 01 November 2021
• Docket Number: No. 16-99008,16-99008
• Parties: Lester Robert OCHOA, Petitioner-Appellant, v. Ronald DAVIS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

16 F.4th 1314

Lester Robert OCHOA, Petitioner-Appellant,

v.Ronald DAVIS, Warden, Respondent-Appellee.

No. 16-99008

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 23, 2021 San Francisco, California

Filed November 1, 2021

James S. Bisnow (argued), Law Offices of James S. Bisnow, Pasadena, California; Joseph F. Walsh (argued), Los Angeles, California; for Petitioner-Appellant.

Stephanie C. Santoro (argued) and Dana Muhammad Ali, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Rob Bonta, Attorney General; Attorney General's Office, Los Angeles, California; for Respondent-Appellee.

Before: Johnnie B. Rawlinson, Richard R. Clifton, and Daniel P. Collins, Circuit Judges.

CLIFTON, Circuit Judge

Petitioner Lester Ochoa appeals from the district court's denial of his habeas corpus petition, under 28 U.S.C. § 2254, challenging the constitutionality of his conviction and death sentence imposed in California state court. Ochoa was convicted in a single trial in 1988 for a series of violent crimes against three female victims over a six-month period the previous year, including murder, kidnapping, forcible rape, and assault with a deadly weapon. See People v. Ochoa , 19 Cal.4th 353, 79 Cal.Rptr.2d 408, 966 P.2d 442, 458 (1998).

Ochoa's conviction and death sentence were appealed to the California Supreme Court, which affirmed the judgment in its entirety. Id. Ochoa twice sought habeas relief from the California Supreme Court, but those petitions were denied. Ochoa commenced federal habeas proceedings in the United States District Court for the Central District of California. The district court denied and dismissed Ochoa's habeas corpus petition, declined to issue a certificate of appealability on any of the claims, and entered judgment. See Ochoa v. Davis , No. CV 99-11129, 2016 WL 3577593, at *1, *144 (C.D. Cal. June 30, 2016).

Ochoa requested a certificate of appealability from this court on seven of the claims presented in his habeas petition. His request was granted as to five of the claims: (1) a claim pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), asserting a due process violation resulting from the prosecutor's failure to disclose jailhouse informant statements that appeared to impeach a key witness against him by implicating that witness in the murder charged; (2) a claim pursuant to Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), asserting ineffective assistance of counsel at the penalty phase of his trial; (3) a claim asserting a violation of the Eighth Amendment due to arguments not made by Ochoa's trial counsel at the penalty phase; (4) a claim asserting a violation of the Eighth Amendment prohibition on cruel and unusual punishment resulting from the trial court's refusal to instruct the jury that it could consider sympathy for Ochoa's family as a mitigating factor at the penalty phase; and (5) a claim pursuant to Simmons v. United States , 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), asserting a violation of the privilege against self-incrimination resulting from the trial court's consideration of Ochoa's suppression hearing testimony in deciding his post-conviction motion for a new trial. The parties briefed those certified issues. Ochoa also briefed a sixth, uncertified claim, asserting a due process violation resulting from the trial court's asserted failure to require that the jury find, beyond a reasonable doubt, that aggravating circumstances existed and that the aggravating circumstances outweighed the mitigating circumstances.

We affirm the district court's denial of Ochoa's habeas corpus petition. Ochoa has failed to establish that the California Supreme Court's decision was contrary to or constituted an unreasonable application of clearly established federal law or an unreasonable factual determination in light of the circumstances with respect to any of his claims. See 28 U.S.C. § 2254(d)(1), (2). We decline to expand the certificate of appealability to reach the uncertified claim because Ochoa has failed to demonstrate that the accuracy of the district court's resolution of that claim is reasonably debatable. See Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

I. Background

The following factual summary is drawn from the California Supreme Court's 1998 opinion. See Ochoa , 79 Cal.Rptr.2d 408, 966 P.2d 442 (providing a more detailed discussion of the facts surrounding Ochoa's conviction and subsequent proceedings).

A police officer found the body of sixteen-year-old Lacy Chandler at a school in Baldwin Park, California, on June 18, 1987, at approximately 7:30 am. See Ochoa , 79 Cal.Rptr.2d 408, 966 P.2d at 460–61. Chandler's body was found near an incinerator, bloody and with knife wounds. Id. , 79 Cal.Rptr.2d 408, 966 P.2d at 461. Chandler was last seen by her boyfriend when she dropped him off for work at approximately 3:00 am that morning. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 460–61. A forensic examination of Chandler's body revealed twenty-three stab wounds, averaging four inches in depth. Id. , 79 Cal.Rptr.2d 408, 966 P.2d at 460. Marks on the ground at the crime scene indicated that Chandler's body had been dragged back and forth about ten feet before it was left near the incinerator. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 461. An investigator took casts of shoe prints located about twenty feet from Chandler's body, of which there was only one clear type. Id.

Officers began to investigate Ochoa after hearing from Edward Ramage that, earlier that year, Ramage had interrupted Ochoa raping another woman, C.J., at the same school where Chandler's body had been found. See id., 79 Cal.Rptr.2d 408, 966 P.2d at 458–61, 465. Ochoa was charged and convicted of that crime in the same trial, as described below at 10–11. Ramage subsequently admitted that he had himself participated in the rape of C.J. 79 Cal.Rptr.2d 408, 966 P.2d at 459.

Officers asked Ochoa if he would be willing to take a voluntary polygraph examination at the Baldwin Park Police Station. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 461. Ochoa agreed. Id. During the polygraph examination, Ochoa confessed to killing Chandler and offered to produce the murder weapon. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 466. Ochoa accompanied an officer to retrieve the knife that Ochoa said he used to kill Chandler. Id. Upon returning to the police station, Ochoa gave a taped confession in the presence of two officers. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 461, 467.

In his taped confession, Ochoa said that on the night in question he had been high on cocaine. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 462. Ochoa explained that he was walking down a street at approximately 3:00 am on June 18, 1987, when he saw a blonde girl, who turned out to be Chandler, near a car. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 461. Ochoa said that he approached Chandler with a knife in hand and took her to the school where the two engaged in intercourse. Id. Ochoa said that he stabbed Chandler to death because he was afraid that she might report him. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 462. Ochoa admitted to dragging Chandler's body to the incinerator. Id. Ochoa denied having raped other women in the past. Id. Ochoa said that he originally hid the murder weapon in his home, but later moved it to where it was ultimately recovered. Id.

Before trial, Ochoa moved to suppress his taped confession and exclude the knife recovered as a result of his confession. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 464. After holding a hearing on Ochoa's motion and considering the relevant testimony, the trial court denied the suppression motion. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 464, 469-70. The prosecutor introduced Ochoa's taped confession at trial.

Id., 79 Cal.Rptr.2d 408, 966 P.2d at 461. Ochoa did not testify at trial. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 463.

A criminalist compared plaster shoe print casts and photographs of the crime scene with the soles of Ochoa's shoes and testified that one of his shoes had sole patterns and a size consistent with the crime scene evidence but noted that there was not enough detail to produce an exact match. Id. A serologist testified that the blood evidence was inconclusive as to whether any of the semen found on Chandler's pants or recovered from samples taken from Chandler's body belonged to Ochoa or as to whether blood found on the knife that Ochoa produced belonged to Chandler. Id. Toxicological results did not reveal any trace of cocaine or other commonly abused drugs in Chandler's blood. Id.

The prosecutor called Ramage to testify in its case in chief. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 462 . Ramage denied any involvement in Chandler's murder. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 458, 462 . Ramage admitted that he and Ochoa had raped C.J. in January of 1987, after consuming a quarter of a gram of cocaine together. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 459 . Ramage testified that Ochoa had wanted to kill C.J. but that Ramage had convinced Ochoa to let her go. Id. Ramage acknowledged that he had entered into a plea agreement regarding the crimes against C.J., received an eight-year prison sentence for his involvement, and agreed to testify in Ochoa's case. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 462. Ochoa sought to impeach Ramage's credibility as a witness and suggest to the jury that Ramage killed Chandler. Id.

Ochoa was prosecuted in the same trial for his actions against C.J. The victim testified that Ochoa and Ramage kidnapped and raped her on January 28, 1987. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 458-60. Although the assailants were unknown to her at the time of the rape, C.J. was later able to identify Ochoa and Ramage from two separate photograph six-packs. Id., 79 Cal.Rptr.2d 408, 966 P.2d at 459-60. C.J. explained that, as she was returning...