Argued
and Submitted May 11, 2017 Pasadena, California
Appeal
from the United States District Court for the Central
District D.C. No. 2:96-cv-07429-JFW of California John F.
Walter, District Judge, Presiding
Verna
J. Wefald (argued), Pasadena, California; William J. Genego,
Santa Monica, California; for Petitioner-Appellant.
Dana
Muhammad Ali (argued), Michael J. Wise, and A. Scott Hayward,
Deputy Attorneys General; Lance E. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant Attorney
General; Office of the Attorney General, Los Angeles,
California; for Respondent-Appellee.
Before: Morgan Christen, Jacqueline H. Nguyen, and Paul J.
Watford, Circuit Judges.
SUMMARY
[*]
Habeas
Corpus / Death Penalty
The
panel affirmed the district court's denial of Ricardo
Rene Sanders's habeas corpus petition challenging his
conviction and death sentence for four counts of first-degree
murder.
The
panel held that because Sanders failed to prove that any of
four eyewitnesses provided material, false testimony or that
the prosecution knew they committed perjury, the state
court's rejection of Sanders's claims under
Mooney v. Holohan, 294 U.S. 103 (1935), and
Napue v. Illinois, 360 U.S. 264 (1959), relating to
those eyewitnesses was neither contrary to clearly
established federal law nor objectively unreasonable. The
panel held that the state court reasonably denied
Sanders's Mooney-Napue claims relating
to two non-eyewitnesses.
The
panel held that the state court reasonably denied
Sanders's claims that the prosecution violated Brady
v. Maryland, 373 U.S. 83 (1963), by failing to disclose
material, exculpatory impeachment evidence about five trial
witnesses.
The
panel held that the state court reasonably denied
Sanders's claims relating to the exposure of two
eyewitnesses, who provided in-court identifications of
Sanders, to a gag photograph of Sanders and a codefendant
holding fake guns. The panel wrote that assuming that the
eyewitnesses' exposure to the photograph was exculpatory
evidence that was not disclosed, Sanders did not demonstrate
that it was material under Brady because the
eyewitnesses identified Sanders at a lineup before they saw
the photo.
Regarding
Sanders's claim that he was entitled to relief under
Mesarosh v. United States, 352 U.S. 1 (1956), which
applies in those rare situations where the credibility of a
key government witness has been wholly discredited by the
witness's commission of perjury in other cases involving
substantially similar subject matter, the panel held that the
state court could have reasonably distinguished this case
from Mesarosh.
The
panel held that the state court reasonably denied
Sanders's claim that the prosecution failed to preserve a
witness's lineup card in bad faith.
The
panel held that the state court reasonably denied
Sanders's claim under Massiah v. United States,
377 U.S. 201 (1964), that the prosecution planted a witness
next to Sanders in a jailhouse van after Sanders's
preliminary hearing in order to obtain an incriminating
statement in violation of his Sixth Amendment right to
counsel.
Regarding
Sanders's claim that counsel was ineffective for failing
to move to suppress a lineup, the panel held that the state
court could have reasonably determined that defense counsel
did not render deficient performance by failing to file a
motion that was unlikely to succeed.
The
panel concluded that because Sanders did not show that there
were multiple deficiencies in his guilt-phase trial,
cumulative error does not require reversal of his
convictions.
OPINION
CHRISTEN, CIRCUIT JUDGE.
Ricardo
Rene Sanders appeals from the district court's denial of
his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Sanders was convicted of four counts of
first-degree murder in 1982 stemming from his involvement in
a robbery at a Bob's Big Boy restaurant in December 1980.
He is currently on death row in California.
The
witnesses against Sanders at trial included four eyewitnesses
and two informants. Sanders did not present an alibi;
instead, he argued that the eyewitnesses incorrectly
identified him as one of the gunmen and the police arrested
the wrong person. Sanders's trial counsel attacked the
accuracy of the eyewitness identifications and the
informants' credibility through vigorous
cross-examination. In his federal habeas petition, Sanders
continues to attack both.
Sanders's
petition argues that the prosecution knowingly used perjured
testimony from witnesses at his trial in violation of
Mooney v. Holohan, 294 U.S. 103 (1935), and
Napue v. Illinois, 360 U.S. 264 (1959), and that the
State failed to disclose material, exculpatory information as
required by Brady v. Maryland, 373 U.S. 83 (1963).
Sanders also argues that the prosecution improperly
influenced two in-court identifications, failed to preserve
exculpatory evidence and planted a jailhouse informant in a
van with Sanders to obtain an incriminating statement from
him. Finally, Sanders raises one ineffective assistance of
counsel claim for the failure to move to suppress eyewitness
identifications made at a lineup shortly after the crime
occurred. Because we conclude that the California Supreme
Court's resolution of Sanders's claims was not
contrary to clearly established federal law nor based on an
unreasonable determination of the facts, we affirm the
district court's denial of the petition for a writ of
habeas corpus.
BACKGROUND
I.
Facts
At
around 2 a.m. on December 14, 1980, there was an armed
robbery at Bob's Big Boy restaurant on La Cienega
Boulevard in Los Angeles, California.[1] Two customers and nine
employees were inside when two men forced their way into the
restaurant, just as it was closing. Four of these individuals
died as a result of injuries suffered during the course of
the robbery. Four of the surviving witnesses identified
Sanders at trial: Tami Rogoway, one of the customers; Michael
Malloy, the night manager; Rhonda Robinson, a
waitress;[2] and Ismael Luna, a busboy.[3]
Night
manager Malloy was in the office preparing to count money
from the cash register when the cook, Derwin Logan, told
Malloy that the two remaining customers wanted to be let out.
As the door opened, two robbers shoved their way inside. The
robbers did not wear masks or otherwise cover their faces.
The taller of the two men (allegedly Sanders) said,
"It's a jack. It's a stickup." He grabbed
the keys and the shorter robber (allegedly codefendant
Franklin Freeman Jr.) hit one of the employees on the head
with the butt of his shotgun.
The
taller robber took Malloy, Rogoway, Logan, and David Burrell,
the other customer, to the back of the restaurant and ordered
them to lie on the floor in a hallway outside of a walk-in
freezer and the office. He asked for the manager and Malloy
stood up. The taller robber ordered Malloy to give him the
money in the safe, which amounted to roughly $1, 300. Some of
the coins were wrapped in Bank of America coin wrappers.
The
taller robber then told Malloy, Rogoway, Logan, and Burrell
to "get up off the floor . . . We are going to the back.
You're going to get hurt." He directed them into the
freezer, where the employee who had been hit with the rifle
was lying on the floor unconscious. The rest of the employees
were waiting there as well. The taller robber said: "I
want watches, wallets, and jewelry." Malloy gathered the
items in a bucket, and handed it to the taller robber. No one
resisted, but some people pleaded for the robbers not to hurt
them. The robbers ordered everyone to turn around to face the
wall and kneel. The two men then fired their guns into the
backs of the group until they ran out of ammunition. Then
they closed the freezer door and left.
Inside
the freezer people lay piled on top of each other and on the
floor. One of the customers and two employees were dead.
Ismael's father, Cesario Luna, who was also a restaurant
employee, died several months later from complications
related to a bullet wound in his brain. Night manager Malloy
was shot in the right eye, which he lost. Rogoway, the other
customer, suffered shotgun injuries to her back and spine,
resulting in numbness on her right side and the periodic
inability to walk. Two other employees sustained serious
injuries, including Dionne Irvin, a waitress. The three
remaining victims-Ismael Luna, Robinson, and Logan-were
physically unharmed.
A.
The Initial Investigation
Later
that day, the police showed many of the eyewitnesses
photographs from the West Los Angeles Division CRASH book,
[4]
which contained photographs of suspected gang members in the
West Los Angeles area. The book did not include photos of
Sanders or codefendant Freeman. Rogoway, Robinson, and Logan
all selected photograph No. 132 as the taller robber.
Photograph No. 132 depicted a man named David Hall, a person
who bore a striking resemblance to Sanders according to the
state trial court.
On the
morning after the robbery, the police interviewed several
Bob's Big Boy employees who were not at the restaurant
during the robbery the night before. The employees suggested
that a former waitress, codefendant Carletha Stewart, may
have been involved in the crime. Stewart and Sanders were
dating at the time of the robbery and Freeman was
Stewart's cousin. None of the employees mentioned Sanders
or Freeman as possible suspects.
Brenda
Givens, a waitress at Bob's Big Boy, worked with Stewart
at the restaurant for several months. Givens provided a
statement to the police about an encounter she had with
Stewart in September 1980, when she ran into Stewart while
visiting her boyfriend at Los Angeles County
Jail.[5]
According
to Givens, Stewart said that it was a "good thing"
that the two women ran into each other "because they
gonna rob Bob's Big Boy tonight." Stewart told
Givens that she did not want Givens to get hurt, but did not
say who specifically was going to rob the restaurant. At
Sanders's trial, Givens testified that two men were at
the jail with Stewart on the day Stewart warned her about the
robbery, but the men were not present for the conversation.
Givens testified that she told the police about the two men
when she was interviewed on December 14, but the men were not
mentioned in her signed statement.[6]
On the
same day Givens saw Stewart at the jail, she reported for her
evening shift at Bob's Big Boy and told four managers
about her conversation with Stewart. Store manager Kim Clark
and night manager Rodell Mitchell were among the managers to
whom Givens reported. According to Givens, Stewart came to
the restaurant that night with another man at around 11:30
p.m. Givens later learned the man's name was Andre
Gilcrest.
Givens
testified that Stewart called her after leaving the
restaurant with Gilcrest that evening. She asked what time
Givens would be leaving and how many employees remained in
the restaurant, and Givens answered that she did not know.
Givens recalled staying until after the restaurant closed at
2 a.m. and remembered that Stewart knocked on the front door
and window shortly after closing while employees were
cleaning their assigned stations. The door was locked and
Mitchell did not open the door. Stewart left before Givens
went home.[7]
B.
Andre Gilcrest Implicated Sanders Shortly After the
Crime
Within
days after the December 14 robbery, several other individuals
came forward with information implicating Sanders. On
December 20, 1980, Andre Gilcrest went to the Los Angeles
Police Department (LAPD) and gave a statement implicating
Sanders, Stewart, and Freeman. Gilcrest was Stewart's
ex-boyfriend and he had been romantically involved with her
on and off for about five years. According to Gilcrest, he
went with Stewart to Bob's Big Boy sometime before the
robbery. Gilcrest could not recall the precise date of this
nighttime visit, but, like Givens, he recalled that there had
been another murder a few blocks away that night.
Gilcrest
was given immunity and testified at Sanders's trial. He
testified that before he and Stewart went to the restaurant
on September 27, Stewart told him that Sanders and Freeman
were going to rob Bob's Big Boy that night. Gilcrest
described going with Stewart to the restaurant between 11:30
p.m. and 12:30 a.m. to drink coffee because Stewart wanted to
see how many people were working. Gilcrest testified that
while they were there Stewart asked the waitresses which
managers were working and how many people were still there.
They left about fifteen minutes before closing and went to
Stewart's house. Gilcrest believed that the robbery would
take place after they left, and he testified that he saw
Sanders and Freeman at Stewart's house later that night.
Gilcrest saw Stewart talking to Sanders and Freeman in a blue
Cadillac, and also saw Sanders show Stewart a sawed-off,
short-barrel shotgun. According to Gilcrest, Freeman also had
a short-barrel shotgun braced against his leg. Gilcrest
testified that after Sanders and Freeman left, Stewart said
that they had gone to rob Bob's Big Boy. When they did
not return within an hour, Stewart told Gilcrest that she was
going to Bob's Big Boy to find them. According to
Gilcrest, Stewart did not find them at the restaurant, but
Sanders called Stewart later that night to report that they
did not go through with the robbery because the manager did
not come out. Gilcrest and Stewart did not discuss the
robbery again.
Gilcrest
heard about the December 14 robbery at Bob's Big Boy the
day after the crime and he told his younger brother about
what had happened when he went to the restaurant with Stewart
on September 27. The brother told their mother, and she
confronted Gilcrest with the ultimatum that she would call
the police if Gilcrest did not come forward. Gilcrest
contacted the police roughly two days later.
C.
Sanders's Arrest
On
December 22, 1980, roughly one week after the crime, the
police arrested Sanders, Stewart, and Freeman. Sanders
testified at a pretrial motions hearing that he did not
resist, but police officers kicked and beat him with a
shotgun during the course of the arrest. At trial the parties
stipulated that X-rays of Sanders's chest taken on
December 24, 1980, showed three fractured ribs and
subcutaneous emphysema, which is a type of swelling below the
skin.
The
police also executed search warrants at Sanders's,
Stewart's, and Freeman's residences. They found a
sawed-off shotgun, a full-length shotgun, and shotgun shells
in Sanders's bedroom, and additional shotgun rounds and
an empty holster in his father's bedroom. The police
found another shotgun at Freeman's father's house,
but the State's ballistics expert acknowledged that he
could not connect any of the guns or ammunition to the
Bob's Big Boy robbery. At Stewart's residence, the
police found $90 in $1 bills and rolls of coins in Bank of
America wrappers. The money was not conclusively linked to
the crime, and no jewelry or other personal property
belonging to the victims was found.
D.
The December 23, 1980 Lineup
The
LAPD held a lineup that included Sanders and Freeman on
December 23, 1980, the day after their arrest. The lineup
consisted of two lines: Lines 3 and 4.[8] Sanders was
Number 4 in Line 3 and Freeman was Number 3 in Line 4. The
other men in Sanders's line were of similar height,
weight, build, and complexion to Sanders. They all had some
facial hair. Sanders was the only one in his line with a
Jheri curl hairstyle, but the suspects had similar length
hair. Sanders was also the only person not wearing shoes. His
feet were not visible in the videotape of the lineup. All of
the men in the lineup were wearing long-sleeve shirts under
their prison uniforms and Sanders's injuries from the
alleged police beating were not visible. Sanders was not
represented by counsel at the lineup because counsel was not
appointed until his arraignment, which took place the
following day.
Three
eyewitness employees attended the live lineup held December
23: Logan, Robinson, and Ismael Luna. Logan made an
identification from each line, but selected neither Sanders
nor Freeman. Robinson selected Sanders from Line 3, and wrote
"positive" next to her identification on the lineup
card, but she also noted that "No. 6 sounds like the
robbers." Luna tentatively selected Sanders from Line 3.
Night
manager Malloy viewed a videotape of the lineup on December
23 because he arrived late. He selected Sanders from Line 3,
and wrote that he was "positive" about his choice
in the remarks section of the lineup card. At trial, Malloy
remembered writing "positive" on the card, but he
also testified that the handwriting on the card did not look
like his.
Rogoway
and Irvin were both injured in the robbery and unable to
attend the December 23 lineup, but they watched the videotape
of it on January 2, 1981 after they were discharged.
Rogoway's and Irvin's lineup cards were lost sometime
after February 1981 and Rogoway gave conflicting testimony at
Sanders's preliminary hearing and trial with respect to
whether she selected anyone from the lineup. At the
preliminary hearing, Rogoway testified that she did not
choose anyone, but at trial she watched the videotape again
and stated that she selected Sanders on January 2. After
watching the videotape at trial, she said she was
"pretty certain" about the identification when she
selected Sanders on January 2. Irvin also selected Sanders
after viewing the videotape, but she did not testify at trial
because the court declared her incompetent to do so.
E.
Bruce Woods Implicated Stewart After the Arrest
In late
December, Bruce Woods came forward with information after
seeing a newspaper article about the robbery. Woods was in
county jail on a pending burglary charge. According to Woods,
he was riding in a car with Stewart and a mutual friend in
August 1980, when Stewart asked the friend if he would like
to make some money by robbing Bob's Big Boy. The friend
replied, "Are you crazy?" and the conversation
ended. Woods explained that he met Stewart through the mutual
friend and had seen her five or six times before this
conversation took place.
F.
Information and Preliminary Hearing
Sanders,
Stewart, and Freeman were charged with four counts of
first-degree murder, six counts of robbery, two counts of
attempted robbery, seven counts of assault with a deadly
weapon, and one count of conspiracy to commit
robbery.[9] The State alleged that the defendants
committed the murders under the special circumstances of
multiple murder and felony-murder robbery.
All
seven surviving eyewitnesses testified at Sanders's and
Stewart's joint preliminary hearing held over the course
of five days on March 20 and March 23-26, 1981.[10] The
prosecution asked five of the eyewitnesses-Malloy, Rogoway,
Robinson, Luna, and Logan-to identify Sanders in court.
Sanders was seated behind a blackboard while the witnesses
testified. The blackboard was removed at the end of each
witness's testimony, and the witnesses were asked whether
they recognized Sanders. Malloy unequivocally said that he
recognized Sanders as the taller robber. Rogoway also
testified that she could positively identify Sanders as the
taller robber.
Robinson,
Luna, and Logan were far less certain. Robinson could not
identify Sanders. She testified that she did not know whether
Sanders was one of the robbers nor whether he even looked
like the person she selected at the December 23 lineup. Luna
similarly testified that Sanders did not "seem to
be" one of the robbers, and that he was "not really
sure" whether Sanders was the man he selected. Logan
testified that Sanders was "a very good likeness, "
but he "couldn't identify him
positively."[11]
Givens,
Mitchell, Gilcrest, and Woods all testified about their
interactions with Stewart leading up to the robbery. Gilcrest
positively identified Sanders, but the others were not asked
to do so. Woods testified over the course of two days while
still in custody for the pending burglary charge. On March
20, Woods and Sanders were transported back to jail in the
same van even though Woods was in protective custody and was
supposed to be kept away from Sanders. Woods had not met
Sanders before the van ride.
Roughly
one week after the preliminary hearing, Woods informed two
officers that Sanders had threatened him in the van. Woods
recounted the threat in his testimony at Sanders's trial,
describing that Sanders told him not to testify against the
defendants because Stewart was young, and because, if
convicted, Sanders would get "the gas." Woods also
testified that Sanders indicated "they" knew where
Woods lived, and that Woods's family would "get
involved" if Woods talked.
G.
Sanders's Trial
The
three codefendants were tried separately. Sanders's trial
was held first, beginning in May 1982 and lasting for roughly
three months. The case was prosecuted by Deputy District
Attorney Harvey Giss. Sanders was represented by Leslie
Abramson.
The
State's case consisted primarily of eyewitness accounts;
testimony from Givens, Mitchell, and Gilcrest about the
events of September 27, 1980; Bruce Woods's testimony
about his August 1980 encounter with Stewart and their mutual
friend; and the physical evidence found at Sanders's and
Stewart's homes. Four eyewitnesses identified Sanders at
trial with varying degrees of certainty. Malloy was the
State's first witness, and he identified Sanders as the
taller robber without hesitation. Rogoway also identified
Sanders as the taller robber. Robinson identified Sanders as
one of the robbers, but admitted that she was unable to
identify him at the preliminary hearing. When Luna was asked
if there was anyone in the courtroom who was present on the
night of the robbery, he answered "I think he's
there in front of that lady, " and pointed to Sanders.
The
defense attacked Gilcrest's and Woods's credibility
and the accuracy of the eyewitness identifications, pointing
out inconsistencies in their testimony and emphasizing the
lack of physical evidence from the crime scene. Defense
counsel also questioned the evidence found at Sanders's
and Stewart's homes because it was not conclusively
linked to the crime.
After
deliberating for four days, the jury convicted Sanders of all
charges. The penalty phase started on August 25, 1982 and
lasted for four days. After two-and-a-half days of
deliberations, the jury recommended a death sentence. The
court imposed a death sentence on December 3,
1982.[12]
II.
Post-Trial Jailhouse-Informant Scandal
A.
The Scandal
Six
years after Sanders's trial, a scandal erupted in Los
Angeles surrounding the use of jailhouse informants in
criminal prosecutions. In October 1988, Leslie White
demonstrated to the Los Angeles Sheriff's Department how
he and other informants had obtained information "about
defendants they had never met" to fabricate claims that
they heard confessions while in jail. Gonzalez v.
Wong, 667 F.3d 965, 1004 (9th Cir. 2011) (W. Fletcher,
J., concurring in part). White explained that he was one of
several prisoners who gave bogus testimony about such
confessions in order to get better deals in their own cases,
and for other privileges. Id. at 1005 (9th Cir.
2011). A grand jury was empaneled to look into the improper
use of informant testimony by the Los Angeles County District
Attorney's Office. Id. The grand jury issued a
150-page report painting "a harrowing picture of the
role of jailhouse informants in the Los Angeles County
criminal justice system during this period" and noted
the "appalling number of instances of perjury or other
falsifications to law enforcement" by informants.
Id. at 1005-06. The report found that informants
were given numerous benefits for their fabricated
confessions, such as being transferred to jails perceived to
be more desirable. Id. at 1007.
The
District Attorney's Office reviewed all cases from the
previous ten years in which: (1) a jailhouse informant
testified as a witness for the State "at a preliminary
hearing or trial to admissions or confessions made by a
defendant to the informant while the informant and the
defendant were in custody together;" or (2) Leslie White
testified as a witness for the State on any subject matter.
Leslie White did not testify at Sanders's trial, but he
was romantically linked to one of the eyewitnesses who did,
Tami Rogoway.
B.
Leslie White's Connection to Eyewitness Tami Rogoway
Roughly
one month before jury selection started for Sanders's
trial, Deputy District Attorney Giss testified at a discovery
hearing about a connection between Tami Rogoway and Leslie
White. Giss testified that White forwarded a letter that had
been written by a prospective defense witness and prison
inmate, Richard Quine. The letter was addressed to
Quine's girlfriend, Gina Gutierrez. Gutierrez was
Rogoway's friend and it was through these mutual
acquaintances that Rogoway met White. In his letter, Quine
offered himself as a fake informant against codefendant
Freeman. In relevant part, the letter stated:
I need you [Gina] to tell Tami that I can help her out on
putting Freeman away . . . . Ask her if she is going to court
on him still, and if so, all she has to do is tell me about
his case, then call the D.A. and tell him she knows someone
that Freeman told he did what he is in jail for . . . .
Giss testified that White told him about Quine's offer to
give false testimony about five months before the discovery
hearing, and that the prosecution planned to produce a tape
recording of its follow up interview with White because the
interview might be relevant to defense efforts to impeach
Tami Rogoway. Defense counsel Abramson expressed concern that
White might have tampered with witnesses. Giss responded,
under oath, "Leslie White was never used as an agent of
the police, " and the prosecution "never made a
deal with him, never offered anything, never asked for
anything."
The
state trial court ruled that defense counsel could only
question Tami Rogoway about Richard Quine, Leslie White, and
the letter offering false testimony against Freeman if Quine
was first called to testify. Neither Quine nor White were
called. On May 15, 1982, roughly two weeks after
Sanders's trial started, White signed an affidavit
stating that: (1) he had no knowledge adverse to the defense
in the Bob's Big Boy case; (2) he received no statements
about the case from Sanders or Freeman; (3) everything he
knew about the case he learned from his ex-girlfriend Tami
Rogoway; (4) he had not been asked by the prosecution to
solicit information from Sanders or Freeman; and (5) he was
not "an informant in any capacity." Police notes
from a contemporaneous interview with White indicate he told
the police that both Sanders and Freeman approached him in
prison and asked him to testify that Rogoway said she did not
know who shot her on the night of the robbery. White's
May 15, 1982 affidavit made no mention of Sanders and Freeman
approaching White in prison.
On
March 13, 1989, White testified as a defense expert on the
use of jailhouse informants in an unrelated state court case,
People v. Marshall.[13] In that testimony, White
claimed that in 1981 a Deputy District Attorney who was not
involved with the Bob's Big Boy case arranged for White
to be transferred from Chino State Prison to Long Beach City
Jail, where White was released on regular weekend furloughs.
Furlough orders-signed by a judge not involved in the
Bob's Big Boy case-corroborate that White was released
from jail repeatedly for long weekends between October and
December 1981.
In the
Marshall case, White testified that he gave
information to the prosecution in the Bob's Big Boy case
during the period he was receiving furloughs. He
characterized his involvement as "basically behind the
scenes in the sense [that Giss] was asking me to do certain
things on the street and in jail I was doing - - I would
collect the results." White also testified in the
Marshall case that he was romantically involved with
one of the eyewitnesses in the Bob's Big Boy prosecution,
that Deputy District Attorney Giss knew that White was
"having sexual relations" with Rogoway, and that
over the course of his three month relationship with Rogoway,
he told her false information from other jailhouse informants
that was detrimental to Sanders and Freeman, but he did not
know what Rogoway did with the information.
On
August 8, 1989, White again testified about his relationship
with Rogoway, this time before the grand jury investigating
the jailhouse-informant scandal. He stated that his
relationship with Rogoway started before his furloughs from
the Long Beach City Jail, that he met Rogoway through
Gutierrez and Quine, and that he corresponded with Rogoway
while he was at Chino State Prison. White claimed that after
he was transferred to Long Beach City Jail, he was allowed to
have contact visits with Rogoway. He also testified that Giss
was aware of the situation, and that Giss told him "to
keep [his] mouth shut about the relationship." According
to White, Giss asked him to find out anything he could
related to Quine or other defense witnesses, and asked White
for any letters Quine sent to Gutierrez.
III.
Procedural History
In
September 1995, while Sanders's case was pending on
automatic appeal, Sanders filed a state habeas corpus
petition in the California Supreme Court. The California
Supreme Court affirmed Sanders's conviction and death
sentence in November 1995. People v. Sanders, 905
P.2d 420 (Cal. 1995). In February 1996, the California
Supreme Court summarily denied Sanders's state habeas
petition on the merits, and Sanders's conviction became
final on October 7, 1996, when the United States Supreme
Court denied his petition for writ of certiorari. See
Sanders v. California, 519 U.S. 838 (1996).
Sanders
timely filed a federal habeas petition in the Central
District of California raising forty-five claims. In 1998 and
1999, the district court dismissed roughly half his claims in
response to dispositive motions filed by the State. None of
the claims dismissed in those orders are before this court on
appeal.
In
December 1999, Sanders filed a motion for an evidentiary
hearing on seventeen of the eighteen claims that are at issue
in this appeal.[14] The district court denied Sanders's
motion for an evidentiary hearing and ruled that the
seventeen claims before this court did not have a
"colorable basis." In January 2002, Sanders filed a
motion to vacate the order denying his request for an
evidentiary hearing or, alternatively, to reconsider. The
parties had fully briefed this motion by May 23, 2002, but
the case was transferred several times and the district court
did not rule on it until October 20, 2009. The motion was
denied. On May 6, 2010, the district court denied
Sanders's federal habeas petition in its entirety, issued
a final judgment, and denied a certificate of appealability
as to all claims.
Sanders
timely appealed and this court granted a certificate of
appealability on eighteen claims pertaining to Sanders's
guilt-phase trial. We have jurisdiction under 28 U.S.C.
§ 1291.
STANDARDS
OF REVIEW
We
review de novo the district court's denial of
Sanders's habeas corpus petition. Hurles v.
Ryan, 752 F.3d 768, 777 (9th Cir. 2014). The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs his petition. Under AEDPA, a federal court may grant
a writ of habeas corpus only if the state court's
decision on the merits:
(1)resulted in 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;
or
(2)resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d); see also Glebe v. Frost,
135 S.Ct. 429, 430 (2014). As contemplated by AEDPA,
"clearly established Federal law . . . is the governing
legal principle or principles set forth by the Supreme Court
at the time the state court renders its decision."
Lockyer v. Andrade, ...