12 F.4th 1084
9th Cir.2021Background:
- 1991: Teresa Holloway found murdered; Robert Jurado charged with first-degree murder (lying-in-wait special circumstance) and conspiracy; trial evidence included a confessed plot, physical evidence, and Jurado’s post-arrest cooperation.
- Pretrial: trial court set aside the lying-in-wait special circumstance for insufficiency; Jurado then pleaded guilty to remaining charges but the State appealed and the Court of Appeal reinstated the special circumstance; Jurado withdrew his plea and was retried.
- Trial evidence/admissions: the court permitted a videotaped conditional examination of witness Brian Johnsen (safety concerns), admitted co-defendant Denise Shigemura’s out-of-court statements (including an adoptive admission), and later excluded Jurado’s videotaped confession at the penalty phase.
- Penalty phase: jury heard victim-impact evidence including that Holloway was 17 weeks pregnant and prior incidents of violence by Jurado; jury returned death sentence after eligibility and aggravation findings.
- Post-conviction/procedural posture: California Supreme Court affirmed on direct appeal; federal habeas petition denied by the district court under AEDPA; Ninth Circuit affirmed denial and refusal to permit additional evidentiary development.
Issues:
| Issue | Jurado’s Argument | Davis (Warden)’s Argument | Held |
|---|---|---|---|
| Double jeopardy / reinstatement of lying-in-wait special circumstance | Plea and dismissal of special circumstance barred its later reinstatement by Double Jeopardy | Plea did not resolve entire prosecution; State retained right to reinstate per Ohio v. Johnson | Affirmed: no double jeopardy bar; Johnson controls because State wasn’t barred from full prosecution |
| Admission of videotaped conditional examination (Johnsen) | Playing tape denied right to confront and reliable penalty determination | Johnsen’s life was at risk; prosecution met statutory showing; full cross-examination occurred at conditional exam | Affirmed: state court’s factual finding reasonable; due process and penalty-reliability not violated |
| Admission of Shigemura’s pre- and post-crime statements | Pre-crime hearsay and Confrontation Clause violation; post-crime not admissible as adoptive admission | Pre-crime harmless because repeated in post-crime statement; post-crime admissible as adoptive admission and non-testimonial | Affirmed: pre-crime error harmless; post-crime properly admitted as adoptive admission; Confrontation Clause claim fails |
| Exclusion of videotaped confession at penalty phase | Exclusion deprived Jurado of evidence of remorse and impaired reliable sentencing | Tape lacked indicia of trustworthiness; trial court properly excluded it | Affirmed: no federal right to admit evidence lacking trustworthiness; exclusion reasonable |
| Victim pregnancy at sentencing | Evidence of 17-week pregnancy was unduly prejudicial and violated fair sentencing | Victim-impact evidence and specific harm are admissible under Payne | Affirmed: pregnancy evidence admissible and not unconstitutionally inflammatory |
| Admission of prior violence at penalty | Prior incidents unfairly prejudicial / violated due process | Evidence relevant under Cal. Penal Code §190.3(b) and did not render sentencing fundamentally unfair | Affirmed: admission consistent with state law and not a federal due process violation |
| Jury instructions re aiding-and-abetting assault (sua sponte omission) | Omission left jury without legal framework and rendered aggravating factor unconstitutionally vague | Jury was instructed on burden; evidence of aiding-and-abetting overwhelming; no prejudice | Affirmed: omission not so prejudicial to violate due process; ineffective-assistance prejudice not shown |
| Ineffective assistance — guilt-phase concession to intentional killing / voluntary-intoxication strategy | Counsel conceded culpability and failed to pursue intoxication defense, causing prejudice | Concession was reasonable tactical choice given weak intoxication evidence; no showing of prejudice | Affirmed: counsel’s strategy not objectively unreasonable; Strickland prejudice not shown |
| Ineffective assistance — penalty-phase mitigation investigation | Counsel failed to pursue or present substantial mitigating evidence | Even if deficient, Jurado cannot show reasonable probability of a different outcome | Affirmed: no Strickland prejudice; denial of evidentiary development proper under AEDPA |
Key Cases Cited
- Ohio v. Johnson, 467 U.S. 493 (1984) (Double Jeopardy does not bar State from continuing prosecution where plea/disposition did not resolve all charges)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause protects against admission of testimonial statements without opportunity for cross-examination)
- Payne v. Tennessee, 501 U.S. 808 (1991) (victim-impact evidence admissible at capital sentencing to show specific harm)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance-of-counsel standard: performance and prejudice)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (AEDPA factual determinations overturnable only if objectively unreasonable)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA highly deferential standard; relief allowed only for extreme malfunctions)
- Scheffer, 523 U.S. 303 (1998) (States may exclude evidence lacking sufficient reliability; defendant’s right to present evidence not absolute)
- Pinholster, 563 U.S. 179 (2011) (AEDPA review limited to record before state court)
- Green v. Georgia, 442 U.S. 95 (1979) (addresses hearsay and reliability in capital sentencing)
- Zant v. Stephens, 462 U.S. 862 (1983) (aggravating circumstances must narrow class eligible for death penalty)