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Fong Soto v. Ryan

United States Court of Appeals, Ninth Circuit

July 25, 2014

MARTÍN RAÙL FONG SOTO, Petitioner-Appellant,
CHARLES L. RYAN and CHARLES GOLDSMITH, Warden, Respondents-Appellees

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.


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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.


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 claimed not to know Fong at all.[4] Nonetheless, after a forensic identification technician concluded on September 10, 1992, that Fong's fingerprints matched those found on certain items at the El Grande Market crime scene, Petitioner was arrested on September 11, 1992.

Detective Godoy completed a second interview with Woods on November 20, 1992. On that date, the police apprehended Woods after he had gone into hiding for a few weeks in an attempt to renege on his deal to aid law enforcement in the prosecution of the El Grande homicides. This interview also began with an untaped portion. In the taped portion of the interview, Woods began by continuing to represent that when Minnitt and McCrimmon confessed to him, they only referred to the third individual as " Chachi." Woods also related that McCrimmon and Minnitt told Woods that Chachi made the plans to commit the robbery at the market because he used to work there, and he could get them inside because the market employees would recognize him.

Woods went on to tell Godoy that he had met Chachi at the house of McCrimmon's girlfriend, Bridget Lucero, on a date after McCrimmon and Minnitt had been arrested in early September 1992 in connection with the Mariano's Pizzeria case. As a result, Woods said that he could now identify Chachi as Petitioner because Woods had also seen Petitioner on television after Petitioner was arrested for the El Grande murders on September 11, 1992 (though on September 8, 1992, Woods claimed to have never met Chachi).

Later in the interview, when Godoy again referred to Woods meeting Chachi, Woods stated that " they" were actually calling him Martin, not Chachi, and that Woods was not sure if Martin and Chachi were two different people. Then, for the first time, Woods specifically related that, during McCrimmon and Minnitt's joint confession to him on the day that he was released from prison, McCrimmon had talked about committing the homicides with a guy named " Martin" and " Chachi." Woods again repeated that he was not

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sure if Martin and Chachi were the same person. At that point in the interview, Godoy then identified " Martin's" girlfriend as Betty Christopher (Petitioner's girlfriend) and asked Woods if he knew Betty Christopher; Woods answered in the affirmative.

Petitioner's attorney, James Stuehringer (" Stuehringer" ), conducted a March 4, 1993 pretrial interview of Woods. During that interview, Woods expressly stated that McCrimmon and Minnitt had told him during their joint confession to the El Grande murders that " Martin" and " Chachi" had committed the crime with them, and that both names referred to a single person, Betty Christopher's boyfriend. During this interview, Woods also receded from his September 8, 1992 statement that Chachi wore a mask during the commission of the murders. That is, he indicated that he only assumed Chachi wore a mask but had not explicitly been told that by McCrimmon or Minnitt. Woods also told Stuehringer that McCrimmon had told him that Chachi lived behind a Circle K off of a street called Prince.

C. Petitioner's State Court Trial

The prosecution's theory of the case was that, as an undisputed former El Grande Market employee, Fong exploited the store employees' recognition of him to gain access to the store while it was in the process of closing, enabling him, Minnitt and McCrimmon to commit the charged crimes. See, e.g., Soto-Fong, 928 P.2d at 620. However, the state did not plan to call Woods as a witness in Petitioner's case because Fong was not present when McCrimmon and Minnitt allegedly confessed to Woods, raising Sixth Amendment confrontation clause issues under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Petitioner's attorney nonetheless listed Woods as a defense witness in order to support a primary defense theory of mistaken identity: that Chachi was not Petitioner but Martin Garza, a close friend of McCrimmon's with the nickname " Chachi." Soto-Fong, 928 P.2d at 615. Stuehringer likewise filed a motion in limine asking the trial court to limit the scope of Woods' testimony to his September 8, 1992 statement wherein he implicated a former El Grande employee named Chachi but failed explicitly to identify Chachi as Petitioner.

The judge denied Stuehringer's motion in limine and ruled that, if Woods testified, all of his statements to law enforcement about McCrimmon's and Minnitt's joint confession to him, including Woods' November 20, 1992 statement, would be admissible at trial. Soto-Fong, 928 P.2d at 616-17. Stuehringer still decided to call Woods as a witness, who went on to testify, inter alia, to the contents of his September 8 and November 20, 1992 statements. Soto-Fong, 928 P.2d at 620 (noting that Woods testified that " the third murderer was 'Martin,' 'the Mexican dude,' who 'used to work there[.]'" ); see also id. at 624. During trial, Woods also expressly stated that McCrimmon and Minnitt told him when they confessed to the crimes that Martin was Betty Christopher's boyfriend, consistent with his statement to Stuehringer during the March 4, 1993 pretrial interview. Id. at 624. And Woods related that he understood Chachi to be Petitioner after meeting him at Bridget Lucero's house.

As part of the mistaken identity defense, Stuehringer also introduced evidence that Petitioner had never been known as " Cha-Chi." Id. at 616 n.2. Stuehringer likewise called Martin Garza as a witness and elicited from him that his nickname was Chachi, that he and McCrimmon were friends who lived around the corner from one another, that McCrimmon called him Chachi, and that he lived near the Circle K off of a

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street called Prince. Moreover, Stuehringer elicited from Detective Godoy that, after his September 8, 1992 meeting with Woods but before November 20, 1992, Godoy misstated in a telephonic search warrant affidavit and under oath during a juvenile court transfer hearing that Woods had identified Petitioner as Chachi, that Petitioner confessed to the crimes, and that Petitioner had the murder weapon. As a result, Stuehringer argued to the jury that Godoy had an incentive to feed Woods additional incriminating information connecting Chachi to Petitioner when Godoy and Woods met for the second time on November 20, 1992, after Woods had gone into hiding. As another part of the defense strategy, Stuehringer presented evidence and argument that the detectives, including Detective Godoy, misrepresented and mishandled the fingerprint evidence implicating Petitioner, making that evidence unreliable. Soto-Fong, 928 P.2d at 615, 621.

In addition to the testimony from defense witness Woods and the state's presentation of the fingerprint evidence linking Petitioner to the crime scene, the jury also heard from a primary state witness named Queen E. Ray (" Ray" ). Ray testified that she loaned the abandoned car found near the El Grande shootings with McCrimmon's fingerprint on it to McCrimmon in return for money on the evening of the El Grande shootings. Id. at 614. She further testified that McCrimmon, Minnitt, and a third person, whom she knew as " Martinez," left McCrimmon's apartment with the car around 10:00 p.m. Id. She identified Petitioner as Martinez during trial. Id. at 614-15. She went on to testify that McCrimmon, Minnitt, and Petitioner returned to McCrimmon's apartment about an hour after she loaned them the car, without the car, and that McCrimmon gave her $30 and the car keys. Id. at 615.

Petitioner, seventeen at the time the crimes were committed, was convicted on all counts except a burglary count and ultimately sentenced to death. Soto-Fong, 928 P.2d at 615.

D. State Misconduct and the Trials of Petitioner's Co-Defendants

Petitioner's co-defendants, McCrimmon and Minnitt, were tried three weeks later. During that joint trial, the prosecutor in the El Grande murder cases, Kenneth Peasley (" Peasley" ), represented during his opening and closing statements that Godoy did not have the names of Petitioner, McCrimmon, or Minnitt until he met with Woods on September 8, 1992, and also stated that Godoy did not suspect a former market employee or know that Petitioner worked at the El Grande Market until he interviewed Woods; Godoy gave testimony consistent with Peasley's representations. Minnitt, 55 P.3d at 778. Both Minnitt and McCrimmon were convicted and sentenced to death. However, McCrimmon's and Minnitt's initial convictions were overturned on appeal because of jury coercion, while Petitioner's convictions were affirmed on direct review. State v. McCrimmon, 187 Ariz. 169, 927 P.2d 1298, 1303 (Ariz. 1996); Soto-Fong, 928 P.2d at 635.

Meanwhile, the state retried Minnitt and McCrimmon in separate trials. Minnitt's 1997 initial retrial resulted in a hung jury. Minnitt, 55 P.3d at 777. During that trial and in line with questions asked during the 1993 joint trial, Peasley repeatedly elicited testimony from Godoy that Godoy did not suspect McCrimmon, Minnitt, Fong or a " Cha-chi" of committing the El Grande murders until Godoy spoke with Woods on September 8, 1992. Id. at 779. At McCrimmon's 1997 retrial, his defense counsel confronted Godoy about this testimony, and Godoy admitted that it was

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false but that he feared causing a mistrial by improperly revealing information obtained from confidential informants. Id. McCrimmon was acquitted.

Minnitt was then tried for the third time by a different prosecutor and was convicted again in 1999. Id. at 776, 780. But, on October 11, 2002, the Arizona Supreme Court vacated his conviction and held that his latest retrial should have been barred under the double jeopardy clause of the Fifth Amendment because of Peasley's repeated and knowing use of false testimony during Minnitt's prior two trials. Id. at 783.

In summarizing the context of the prosecutorial misconduct, the Arizona Supreme Court recounted the following:

Before discussing the actual misconduct in this case, we recount the context in which it occurred. Deputy County Attorney Kenneth Peasley conducted the 1993 Soto-Fong trial and the 1993 and 1997 trials of Minnitt and McCrimmon. He did not participate in Minnitt's 1999 trial. In all three Minnitt trials and in both McCrimmon trials, the state's case depended heavily on Keith Woods' credibility. Importantly, as of September 2, the police had identified Soto-Fong, McCrimmon, and Minnitt as suspects in the El Grande crimes and had interviewed them.[5] But according to Godoy, police had yet to interview anyone who could provide direct evidence linking any of the three to the crimes. Woods was not interviewed until September 8, six days after the McCrimmon and Minnitt interviews. Godoy claimed to have received his first knowledge of any involvement by McCrimmon and Minnitt from his interview with Woods. This was the information the police were seeking-that McCrimmon and Minnitt had implicated themselves in the murders and that a witness would so testify.
Woods' credibility was tenuous. He was a convicted felon and drug addict who entered into an agreement with the state to provide testimony to avoid a lengthy prison sentence. The state had no plausible explanation why Godoy conducted the untaped [portion of the September 8] interview with Woods. The defense strategy in the Minnitt and McCrimmon trials was to show that Godoy was the source of Woods' information about Minnitt's and McCrimmon's involvement in the case, and that during the untaped interview, he fed that information to Woods. If Godoy was indeed the source, Woods' testimony would not have helped the state. Similarly, without Woods, the state's case would be significantly weakened because no direct or physical evidence connected Minnitt to the crime, and the credibility of the remaining witnesses was questionable.

Id. at 777-78.

In summarizing the extent of the misconduct, the Arizona Supreme ...

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