Martin Fong v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTÍN RAÙL FONG SOTO, No. 11-17051 Petitioner-Appellant, D. Ct. No. v. CV-04-68-TUC-

DCB

CHARLES L. RYAN and CHARLES GOLDSMITH, Warden, Respondents-Appellees. OPINION

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Argued and Submitted September 10, 2013—San Francisco, California

Filed July 25, 2014

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

* The Honorable Robert J. Timlin, Senior District Judge for the U.S. District Court for the Central District of California, sitting by designation. SUMMARY**

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…

Opinion by Judge TIMLIN; Dissent by Judge SCHROEDER.

OPINION

Arizona state prisoner Martín Raul 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 codefendants, 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…

dissenting.

This is a very troubling and confusing case. The crime was a highly publicized triple murder-robbery in the Tucson area. Fong was only seventeen at the time the crime was committed. There were no eyewitnesses. The principal trial witnesses were hardly upstanding citizens. The police informant, Woods, had only recently been released from prison and, absent cooperation, would have soon been back in prison on drug charges. The owner of the getaway car was a known cocaine user. The prosecution had very little direct evidence linking the three defendants, Fong, McCrimmon, and Minnitt, to the crime. McCrimmon’s fingerprints were on the getaway car, and Fong’s fingerprints were at the scene of the robbery. During the trial Fong was apparently referred to by several different names, including Chachi and Martinez, while another person, also named Martin, may also have been called Chachi.

What is now clear is that in order to bolster the dubious credibility of the informant, Woods, the prosecution knowingly put on perjured testimony of the police investigator, Godoy. While Godoy lied at the trials of all of the defendants, this fact came out only after Fong’s conviction had…