UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LESTER ROBERT OCHOA, No. 16-99008 Petitioner-Appellant, D.C. No. v. 2:99-cv-11129-DSF RONALD DAVIS, Warden, Respondent-Appellee. OPINION

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted March 23, 2021 San Francisco, California

Filed November 1, 2021

Before: Johnnie B. Rawlinson, Richard R. Clifton, and Daniel P. Collins, Circuit Judges.

Opinion by Judge Clifton 2 OCHOA V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Lester Ochoa’s habeas corpus petition, under 28 U.S.C. § 2254, challenging the constitutionality of his conviction and death sentence imposed in California state court.

Ochoa was convicted in a single trial in 1988 for a series of violent crimes against three female victims over a six- month period the previous year, including murder, kidnapping, forcible rape, and assault with a deadly weapon.

This court previously granted Ochoa a certificate of appealability as to five claims, which the panel reviewed with the deference prescribed by the Antiterrorism and Effective Death Penalty Act of 1996.

Ochoa contended that his right to due process under the Fifth and Fourteenth amendments, as established by Brady v. Maryland, 373 U.S. 83 (1963), was violated when the prosecutor failed to disclose that three jailhouse informants had told state police officers that Edward Ramage had implicated himself in Lacy Chandler’s murder. The panel held that the California Supreme Court’s determination that the undisclosed evidence was not material at the guilt or penalty phase of the proceedings was not contrary to or an unreasonable application of Brady, nor did it amount to an

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. OCHOA V. DAVIS 3 unreasonable determination of the facts in light of the circumstances.

Ochoa argued that his trial counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 688 (1984), during the penalty phase by failing to dig further into the conditions in which Ochoa lived as a child and into his family’s history of mental health issues and violence. The panel held that even if counsel’s performance was deficient, which is far from clear, the California Supreme Court’s determination that the alleged deficiency did not cause prejudice to Ochoa was not unreasonable.

Ochoa asserted that because trial counsel failed to present the additional mitigation evidence at issue in the ineffective- assistance claim, his death sentence violates the Eighth Amendment in that the jury’s verdict was not based on consideration of all the available mitigating evidence and therefore was not a reliable finding of death. The panel wrote that because the California Supreme Court did not unreasonably decide that Ochoa’s counsel was not ineffective under Strickland, it follows that his punishment is not a violation of his Eighth Amendment right based on trial counsel’s performance and the mitigation evidence they failed to present. The panel noted that Ochoa provided no support for his legal theory that ineffective assistance can support a separate Eighth Amendment claim. In addition, the panel wrote that this claim is barred because the right asserted by Ochoa had not been recognized by the Supreme Court prior to the time his conviction became final.

Ochoa contended that his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amend