Jesse Gonzalez v. Robert Wong
2011 U.S. App. LEXIS 24191
| 9th Cir. | 2011Background
- Gonzales was convicted in California state court of first-degree murder with a death sentence for killing Deputy Williams during a raid execution; conviction and death sentence were affirmed by the California Supreme Court and later reviewed in federal habeas under AEDPA.
- The district court denied most habeas claims but granted discovery on whether Acker’s jailhouse testimony was Brady material; the California Supreme Court previously declined to permit discovery, leaving some Brady issues unresolved.
- During federal habeas discovery, six psychological reports on Acker were disclosed showing potential impeachment value beyond trial impeachment, which Gonzales argues could have (but for Pinholster) altered the outcome.
- The panel, applying Cullen v. Pinholster, held that new evidence could not be considered under §2254(d)(1) unless presented to the state court first, and remanded the Brady claim to allow state resolution with the new materials via stay-and-abey relief.
- Judge Clifton’s lead opinion nonetheless remands the Brady claim to the district court for stay and abeyance to permit state-court consideration of the new evidence; other claims are affirmed.
- Partial concurrence by Judge Fletcher agrees with remand for Brady but would allow consideration of the new evidence now under limited circumstances; Judge O’Scannlain dissents on the remand portion, arguing Pinholster should bar consideration of new federal evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brady material and newer impeachment evidence after Pinholster | Gonzales argues newly discovered Acker materials are Brady material and could change the outcome | State argues Pinholster prevents consideration of new evidence not in state-court record when reviewing a merits-adjudicated claim | Remand with stay-and-abey for state-court consideration of the Brady claim |
| Ineffective assistance of counsel—guilt-phase characterization evidence | Trial counsel failed to investigate/present character evidence that could rebut Acker and support defense | California Supreme Court reasonably found no prejudice; evidence would be weak or cumulative | No reasonable likelihood of different outcome; no Strickland prejudice established |
| Ineffective assistance of counsel—penalty-phase mitigation evidence | Counsel should have discovered/presented mitigating evidence (family background, abuse, etc.) to counter aggravation | Strategic decision; evidence would have opened door to more damaging facts (e.g., rape incident) | No reasonable probability of a different penalty; mitigation evidence not sufficient to overcome aggravation |
| Mental impairment evidence as a basis for ineffective assistance | Counsel failed to pursue mental-impairment theory that could affect judgment during shooting | No blanket duty to investigate mental defenses; defense strategy reasonable given illiteracy and other facts | California Supreme Court's conclusion reasonable; no prejudice shown |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (duty to disclose favorable evidence to defense)
- Kyles v. Whitley, 514 U.S. 419 (1995) (materiality and prejudice in Brady claims)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance of counsel)
- Banks v. Dretke, 540 U.S. 668 (2004) (material impeachment evidence not necessarily cumulative)
- United States v. Kohring, 637 F.3d 895 (9th Cir. 2011) (new impeachment evidence can be material even with some impeachment existing)
- Silva v. Brown, 416 F.3d 980 (9th Cir. 2005) (non-cumulative impeachment where new evidence affects credibility)