Jesse Gonzalez v. Robert Wong

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE GONZALEZ, 

Petitioner-Appellant, No. 08-99025 v. ROBERT WONG, Warden of  D.C. No. 2:95-CV-02345-JVS California State Prison at San

OPINION

Quentin, Respondent-Appellee.  Appeal from the United States District Court for the Central District of California Lourdes G. Baird and James V. Selna, District Judges, Presiding

Argued and Submitted January 10, 2011—Pasadena, California

Filed December 7, 2011

Before: Diarmuid F. O’Scannlain, William A. Fletcher, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton; Partial Concurrence and Partial Dissent by Judge W. Fletcher; Partial Dissent by Judge O’Scannlain

20683 GONZALEZ v. WONG 20687

COUNSEL

Robert Berke, Santa Monica, California; Mark E. Overland (argued), Scheper Kim & Overland LLP, Los Angeles, Cali- fornia, for the petitioner-appellant.

Joseph P. Lee, Deputy Attorney General, Los Angeles, Cali- fornia, for the respondent-appellee.

OPINION

CLIFTON, Circuit Judge:

Jesse Gonzales1 was convicted in a California state court of first degree murder, with a finding…

Opinion by Judge CLIFTON; Partial Concurrence and Partial Dissent by Judge W. FLETCHER; Partial Dissent by Judge O’SCANNLAIN.

OPINION

Jesse Gonzales 1 was convicted in a California state court of first degree murder, with a finding of the special circumstance of killing a law enforcement officer engaged in the lawful pursuit of his duties, and was sentenced to death. The California Supreme Court affirmed the conviction and sentence and denied Gonzales’s petition for post-conviction relief. People v. Gonzalez, 51 Cal.3d 1179 , 275 Cal.Rptr. 729 , 800 P.2d 1159 (1990). The district court denied his petition for habeas corpus under 28 U.S.C. § 2254 , and he appeals that denial to us.

Gonzales’s appeal requires us to consider and apply the decision of the United States Supreme Court earlier this year in Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388 , 179 L.Ed.2d 557 (2011). In that decision, the Court held that in reviewing the petition of a state prisoner for habeas relief under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) *972 when the prisoner petitions for review of a claim adjudicated in the state courts on the merits under 28 U.S.C. § 2254 (d)(1), a federal…

concurring in part:

I concur fully in Judge Clifton’s analysis of Gonzales’s non -Brady claims.

I also concur in the decision to remand to the district court with directions to stay and abey Gonzales’s federal habeas petition in order to allow him to present to the California state courts his claim under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), based on the evidence he has obtained during discovery in his federal habeas proceedings. However, I believe that we have the authority, in the circumstances of this case, consistent with the Supreme Court’s decision in Cullen v. Pinholster, — U.S.-, 131 S.Ct. 1388 , 179 L.Ed.2d 557 (2011), to decide petitioner’s Brady claim now, without first seeking the view of the California courts. I would prefer to exercise that authority.

I. General Application of Pinholster

The Supreme Court held in Pinholster that in a habeas case governed by 28 U.S.C. § 2254 (d)(1) we generally cannot *1000 consider evidence that was not before the state court. Pinholster, 131 S.Ct. at 1398 . A question Pinholster does not answer is what federal courts should do when confronted with such evidence. I agree with Judge Clifton that…

dissenting in part:

I concur in most of the court’s lead opinion today. With respect, however, I must dissent from its reversal and remand of Gonzales’s claims pertaining to the alleged suppression of impeachment evidence. The test the lead opinion crafts directly conflicts with the Supreme Court’s recent holding that “evidence introduced in federal court has no bearing” on claims that have been adjudicated on the merits before a state court. Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1400 , 179 L.Ed.2d 557 (2011).

I

As the lead opinion and the concurrence thoroughly discuss, Jesse Gonzales stands convicted of the intentional murder of Los Angeles County Sheriffs Deputy Jack Williams. Gonzales has never denied that he killed his victim or that he intended to do so. Therefore, the only issue at his trial was whether he knew that Deputy Williams was a peace officer in the pursuit of his duties.

A primary issue throughout Gonzales’s quest for postconviction relief has been whether he had sufficient opportunity to impeach William Acker, a fellow inmate who testified that Gonzales confessed to wanting to “bag a cop.” See People v. Gonzalez, 51 Cal.3d 1179 , 275 Cal.Rptr. 729 ,…