Reno v. Davis, 17-99004

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: Reno, Petitioner-Appellant, v. Ronald Davis, Warden, California State Prison at San Quentin, Respondent-Appellee.
• Docket Number: 17-99004
• Decision Date: 19 August 2022

Reno, Petitioner-Appellant,
v.
Ronald Davis, Warden, California State Prison at San Quentin, Respondent-Appellee.

No. 17-99004

United States Court of Appeals, Ninth Circuit

August 19, 2022

Argued and Submitted March 22, 2022 Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. 2:96-cv-02768-CBM Consuelo B. Marshall, District Judge, Presiding

James S. Thomson (argued) and Ethan H. Stone, Berkeley, California, for Petitioner-Appellant.

David Fredric Glassman (argued), Mary Sanchez, and A. Scott Hayward, Deputy Attorneys General; Dana M. Ali, Supervising Deputy Attorney General; James William Bilderback II, Senior Assistant Attorney General; Lance E. Winters, Chief Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

Before: Consuelo M. Callahan, Andrew D. Hurwitz, and Bridget S. Bade, Circuit Judges.

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SUMMARY^[*]

Habeas Corpus/Death Penalty

The panel affirmed the district court's denial of Reno's amended 28 U.S.C. § 2254 habeas corpus petition challenging his California conviction, on retrial, and death sentence for two first-degree murders and one second-degree murder.

The district court issued a certificate of appealability on two issues: Reno's due process claims regarding the destruction of police records (Claims 17 and 18); and the state trial court's failure to instruct the jury on Cal. Penal Code § 272, which Reno asserted was a lesser included offense of one of the felony charges (Claim 48).

Claims 17 and 18 asserted that the California Supreme Court unreasonably applied clearly established federal law and unreasonably determined the facts when it ruled that the State's destruction of police personnel records before Reno's second trial was not performed in bad faith and did not violate his constitutional rights. The panel held that the California Supreme Court reasonably applied Arizona v. Youngblood, 488 U.S. 51 (1988), instead of Brady v. Maryland, 373 U.S. 83 (1963), because the record does not support Reno's assertion that the purged records contained material exculpatory evidence. The panel wrote that the California Supreme Court's previous decision in People v. Memro, 38 Cal.3d 658 (1985), did not conclusively resolve this question in his favor. The panel also held that the

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California Supreme Court did not act unreasonably when, applying Youngblood, it affirmed the trial court's factual finding that there was no evidence that the police department acted in bad faith.

Claim 48 asserted that the trial court violated Reno's Eighth Amendment rights by failing to sua sponte instruct the jury on lesser included offenses of the felony lewd acts with a minor charge (Cal. Penal Code § 288) which formed the basis of a capital first-degree felony murder count. Specifically, Reno contended that the jury should have been given the option of alternatively finding him guilty of misdemeanor child molestation under Penal Code § 647a, or misdemeanor contributing to the delinquency of a minor under Penal Code § 272. The panel held that the instructions in Reno's case-which did not give the jury "an all-or-nothing choice" between the capital first-degree murder charge and innocence, but rather gave the jury the option of finding Reno guilty of the lesser included non-capital offenses of second-degree murder or voluntary manslaughter-did not run afoul of Beck v. Alabama, 447 U.S. 625 (1980), and there was no constitutional error. The panel wrote that Reno failed to identify anything in the California Supreme Court's decision that is inconsistent with the result in Schad v. Arizona, 501 U.S. 524 (1991), abrogated on other grounds as recognized by Edwards v. Vannoy, 141 S.Ct. 1547, 1554 n.4 (2021), in which the U.S. Supreme Court held that the due process principles underlying Beck are satisfied when the jury is given a third, non-capital option between capital murder and acquittal. The panel wrote that Reno's claim fails for this reason alone, but even if it did not, Reno would not be entitled to relief because he did not show that the California Supreme Court unreasonably determined that the court was not required to instruct the jury under §§ 647a or 272.

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The panel expanded the certificate of appealability to cover three additional issues.

Claim 2 argued that Reno's confessions to the interrogating officers were coerced and that the trial court's admission of those confessions violated his constitutional rights. The trial court denied Reno's motion to suppress, finding that Reno's statement was "free and voluntary" because "the totality of the circumstances clearly point to the credibility of the prosecution witnesses and against the credibility of the prosecution witnesses and against the credibility of the defense witnesses." The panel held that Reno did not show that the California Supreme Court made an unreasonable determination of fact in finding that that substantial evidence supported the trial court's ruling. Reno also contended that the California Supreme Court unreasonably applied clearly established federal law because the court cited but did not expressly apply the U.S. Supreme Court's opinion in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and that the California Supreme Court erred by not comparing his case to Arizona v. Fulminante, 499 U.S. 279 (1991), in which the U.S. Supreme Court determined that a confession was coerced when given to a paid FBI informant who promised protection to the defendant from physical attack in prison. Reno asserted that Fulminante should have controlled here because the alleged police threats leading to Reno's confession were more immediate and direct than those at issue in Fulminate. Noting that a state court decision that fails to cite or show awareness of U.S. Supreme Court cases may still satisfy the deferential standard of review under 28 U.S.C. § 2254(d)(1) so long as neither the reasoning nor the result of the state opinion contradicts clearly established federal law, the panel wrote that the California Supreme Court's decision here did not contradict the reasoning or the results of Reno's cited cases.

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Claims 8-10 asserted that Reno's second trial for first-degree felony murder and premeditated and deliberated murder violated the Double Jeopardy Clause and related collateral estoppel doctrines. Holding that these claims lacked merit, the panel wrote that the trial court's finding that the felony-murder special circumstance was not proven during Reno's first trial was not an "acquittal" for double jeopardy purposes. The panel wrote that the California Supreme Court reasonably determined that Reno was never acquitted and reasonably determined that, at most, the ambiguous special circumstance determination foreclosed retrial for the same felony-murder special circumstance. To the extent Reno argued that the California Supreme Court made an unreasonable determination of the facts when it held that the first trial judge might have found Reno guilty of murder under a felony-murder theory, the panel rejected that argument as well.

Claim 62 argued that the trial court violated Reno's constitutional rights by instructing the penalty phase jurors that they must unanimously agree regarding the penalty. Citing Jones v. United States, 527 U.S. 373 (1999), the panel held that the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, U.S. Supreme Court precedent, especially in the absence of any evidence that jurors were confused by the instruction. As to Reno's argument that the California Supreme Court unreasonably determined that the instruction was consistent with state law, the panel wrote that the California Supreme Court's interpretation of California's 1977 death penalty statute binds this court on federal review.

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OPINION

CALLAHAN, CIRCUIT JUDGE.

In 1979, Petitioner Reno^[1] was found guilty of the murders of three young boys and sentenced to death. The California Supreme Court reversed Reno's conviction and remanded for a new trial. See People v. Memro ("Memro I"), 38 Cal.3d 658 (1985). In a 1987 retrial, a jury found Reno guilty of two first-degree murders and one second-degree murder. Following a penalty trial, the jury returned a verdict of death. The California Supreme Court upheld the convictions and sentence on direct appeal. People v. Memro ("Memro II"), 11 Cal.4th 786 (1995).

After unsuccessfully seeking state habeas relief, In re Reno, 55 Cal.4th 428 (2012), Reno filed a 28 U.S.C. § 2254

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petition for habeas corpus. The district court denied his petition but granted a certificate of appealability as to two issues. Reno v. Davis, No. CV 96-2768 CBM, 2017 WL 4863071 (C.D. Cal. Aug. 15, 2017). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We expand the district court's certificate of appealability to cover three additional issues, and applying the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), affirm the district court's denial of Reno's petition.

I

Unless otherwise noted, the following facts are drawn from the California Supreme Court's opinion on direct appeal following Reno's second trial. Memro II, 11 Cal.4th 786.

A

Seven-year-old Carl Carter, Jr. ("Carl")^[2] was reported missing on October 22, 1978. Memro II, 11 Cal.4th at 81112. Officers investigating Carl's disappearance "became aware of [Reno] when they were interviewing individuals who might have information regarding [Carl's] whereabouts." Id. at 811. When the police went to Reno's apartment to ask him questions, Reno answered the door and said, "I knew you were coming .... I['v]e been in Atascadero [State Prison]." Id. at 812 (omissions and alterations in original). Reno provided no helpful information and the police left, returning to Carl's home. Id.

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Soon after, Reno...