FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEDDY BRIAN SANCHEZ, No. 16-99005
Petitioner-Appellant,
D.C. No.
v. 1:97-cv-06134-
AWI-SAB
RONALD DAVIS, Warden, San
Quentin State Prison,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted July 13, 2020
San Francisco, California
Filed April 22, 2021
Before: Ronald M. Gould, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
2 SANCHEZ V. DAVIS
SUMMARY *
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Teddy
Brian Sanchez’s habeas corpus petition challenging his
California state conviction and death sentence for two first-
degree murders.
The panel applied the deferential standards imposed by
the Antiterrorism and Effective Death Penalty Act in a case
in which the district court granted Certificates of
Appealability (COA) on three issues, and the panel granted
a COA on uncertified claims pertaining to ineffective
assistance of counsel.
Because there was no reasoned state court decision
addressing any of Sanchez’s claims, the panel considered
what arguments could have supported the state court’s
decision, and then asked whether those arguments or
theories are inconsistent with a prior Supreme Court holding.
Sanchez claimed that Eugene Toton, lead counsel at the
guilt phase, was ineffective for failing to investigate and
present evidence from a jailhouse informant. The panel
wrote that although there are reasonable arguments for and
against the contention that Toton’s conduct constituted
deficient performance, it did not need to decide that question
because Sanchez did not establish prejudice, as the
informant’s testimony would not have created a reasonable
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SANCHEZ V. DAVIS 3
probability that Sanchez would not have been convicted as
an aider and abettor in the murders.
As to Sanchez’s claim that Toton and Gary Frank—who
shared responsibilities at the penalty phase—provided
ineffective assistance when they did not raise Sanchez’s
mental impairments as mitigating evidence at the penalty
phase, the panel held that Toton and Frank did not render
deficient performance.
The panel denied relief on Sanchez’s claim that the trial
court, in denying his automatic motion for a modification of
the death sentence, failed to consider his mitigation evidence
presented during the penalty phase as required by Cal. Pen.
Code § 190.4(e). Sanchez asserted that the California
Supreme Court’s denial of this claim on the merits amounted
to an unreasonable determination of the facts under
28 U.S.C. § 2254(d)(2), and that the trial court violated the
Eighth and Fourteenth Amendments when it failed to
consider the mitigating evidence. Without clearly
established federal law to support the claim that the
Constitution requires an independent judicial review of a
jury’s death verdict, the panel wrote that it could not issue a
writ of habeas corpus based on perceived error of state law.
Sanchez contended that his death sentence is
disproportionate to the sentences received by his co-
defendants, that these disparate impositions of penalties
violated the Eighth and Fourteenth Amendments, and that he
is entitled to intra-case proportionality review. Affirming
the district court’s denial of habeas relief on Sanchez’s
proportionality claim, the panel explained that there is no
clearly established federal law requiring intra-case
proportionality review, and noted that the California
4 SANCHEZ V. DAVIS
Supreme Court provided meaningful appellate review when
it rejected Sanchez’s proportionality claim.
In a simultaneously filed memorandum disposition, the
panel affirmed the district court on all other previously
uncertified claims relating to ineffective assistance of
counsel.
COUNSEL
Nina Rivkind (argued), Berkeley, California; Heather E.
Williams, Federal Defender; David Harshaw, Assistant
Federal Defender; Office of the Federal Public Defender,
Sacramento, California; for Petitioner-Appellant.
Jamie A. Scheidegger (argued), Sean M. McCoy, and
Rachelle A. Newcomb, Deputy Attorneys General; Michael
P. Farrell, Senior Assistant Attorney General; Lance
Winters, Chief Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General,
Sacramento, California; for Respondent-Appellee.
SANCHEZ V. DAVIS 5
OPINION
GOULD, Circuit Judge:
Teddy Sanchez appeals the district court’s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Following a bench trial in 1988, a California court convicted
Sanchez of the first-degree murders of Juan and Juanita
Bocanegra and Woodrow Tatman. A jury sentenced
Sanchez to death.
After exhausting his state court remedies, Sanchez filed
a federal habeas petition seeking relief from his conviction
and sentence. The district court denied relief, and granted
Certificates of Appealability (“COA”) on the following
issues: (1) whether defense counsel provided ineffective
assistance by failing to investigate and present testimony of
jailhouse informant Charles Seeley; (2) whether the trial
court failed to consider Sanchez’s mitigation evidence when
it imposed the death penalty; and (3) whether imposition of
the death penalty is constitutionally disproportionate as to
Sanchez. Sanchez timely appealed. We have jurisdiction
under 28 U.S.C. § 1291 and 28 U.S.C. § 2253, and we
affirm.
In his briefing, Sanchez also raises several uncertified
issues. We grant a COA on the claims pertaining to
ineffective assistance of counsel (“IAC”). See Browning v.
Baker, 875 F.3d 444, 471 (9th Cir. 2017) (holding that the
district court erred in limiting a COA to particular ineffective
assistance of counsel claims rather than to the broader issue
of whether the petitioner demonstrated a denial of the
constitutional right to effective assistance of counsel). In
this opinion, we address the certified claims as well as the
previously uncertified claim (“Claim 48”), namely whether
6 SANCHEZ V. DAVIS
trial counsel failed to present evidence of Sanchez’s mental
impairments at the penalty phase. 1
I. BACKGROUND
A. The Crimes 2
1. The Tatman Murder
Woodrow Wilson Tatman was “a frail, undernourished,
72-year-old man who . . . was confined to a wheelchair.”
People v. Sanchez, 12 Cal. 4th 1, 19 (1995). Tatman rented
a room at the Bakersfield Inn and spent his days drinking
alcohol and watching television. Id. Motel employees
helped care for Tatman and gave money to him from his
Social Security checks. Id. Tatman was last seen alive on
February 2, 1987. Id.
On the afternoon of February 4, 1987, an employee
noticed that Tatman’s curtains were drawn and that he had
not yet picked up his check. Id. The employee discovered
Tatman’s body on the floor near his bed, covered with a
bedspread. Id. Tatman’s television, radio, and electric
skillet were missing from the room. Id. An autopsy report
indicated that Tatman was killed by a massive blunt force
injury to the left chest, collapsing his left lung and causing
1
In a separate memorandum disposition filed simultaneously with
this opinion, we affirm the district court on all other previously
uncertified claims relating to ineffective assistance of counsel raised by
Teddy Sanchez.
2
Our recitation of the facts is based on the California Supreme Court
opinion upholding Sanchez’s conviction and sentence on direct appeal,
see People v. Sanchez, 12 Cal. 4th 1 (1995), and on our own review of
the record.
SANCHEZ V. DAVIS 7
substantial hemorrhaging, consistent with a heel stomp or an
instrument approximately two inches by three inches in size.
Id. Tatman also had several superficial stab wounds to the
chest and lower abdomen which did not contribute to his
death. Id.
According to evidence presented at trial, Sanchez,
Robert Reyes, and an unknown third person planned to rob
Tatman for his check, his refrigerator, and other items in his
room. Id. at 21. Detective Randy Boggs testified that
Sanchez told him that Tatman was asleep when they entered
his room. Id. Sanchez was taking items from the room when
Tatman woke up. Id. Reyes pulled Tatman from the bed
and stabbed him with a screwdriver. Id. Despite blaming
Reyes for the murder, Sanchez’s statement explained only
the superficial stab wounds, not the delivery of the fatal
blow. Id.
2. The Bocanegra Murders
On February 3, 1987, the day after Tatman’s murder,
Juan and Juanita Bocanegra were murdered in their home.
Id. at 17. Juanita 3 was found in her sewing room with
lengths of fabric tied around her neck and right wrist, and
Juan was found in the kitchen. Id. Both had extensive stab
wounds and head injuries. Id. at 17. Blood spatter evidence
showed that the attack began in a hallway near the bathroom
before moving to the kitchen where large amounts of blood
showed that a struggle took place throughout the room. Id.
at 18. There were small amounts of diluted blood in the
3
For clarity, we refer to the members of the Bocanegra family by
their first names.
8 SANCHEZ V. DAVIS
bathroom, suggesting that someone had cleaned up after the
attack. Id.
Police found evidence of two types of shoe tracks on the
floor of the Bocanegra kitchen and one consistent shoe track
in the bathroom. Id. Police also found a bloody palm print
belonging to Reyes on the doorknob inside the Bocanegra
front door. Id. Autopsies performed on both Juan and
Juanita revealed that they died from massive hemorrhaging
caused by multiple stab wounds. Id. The day after the
murder, police found the Bocanegras’ car abandoned. Id.
Based on bloodstains and fingerprints in the car, police
arrested the Bocanegras’ son, Joey Bocanegra. Id.
Detective Bob Stratton interviewed Sanchez multiple
times. Sanchez, 12 Cal. 4th at 20. Initially, Sanchez told
Stratton that he saw Joey leaving the Bocanegras’ house on
the day of their murders. Id. Later, after Stratton challenged
Sanchez’s initial story, Sanchez asked several hypothetical
questions, including, “What if I was present in the house;
what if Joey hit his dad after his dad had refused to give some
money; and what if Joey’s dad hit him back and what if Joey
got real mad and grabbed a knife and started stabbing his
dad; what if Joey’s mother didn’t know what was happening
because she was in another room?” Id.
Two pieces of physical evidence further linked Sanchez
to the crime. Id. at 18. The Bocanegras’ television set was
found in the same room at the Bakersfield Inn where
Sanchez stayed at the time of the murder, and Sanchez sold
the Bocanegras’ vacuum cleaner to one of the motel
employees. Id. The remaining evidence against Sanchez
was primarily circumstantial, along with Sanchez’s
incriminating statements to Detectives Boggs and Stratton, a
jailhouse informant named Rufus Hernandez, and a local
reporter named Michael Trihey. Id. at 18–21.
SANCHEZ V. DAVIS 9
Sanchez, Reyes, and Joey were charged with robbery and
first-degree murder of the Bocanegras, with allegations of
robbery-murder and multiple-murder special circumstances.
Sanchez and Reyes were also charged with robbery and first-
degree murder of Tatman with an allegation of the robbery-
murder special circumstance. On the prosecution’s motion,
the trial court dismissed the charges against Joey. Reyes
ultimately pleaded guilty to three counts of first-degree
murder in exchange for three consecutive sentences of life
with the possibility of parole.
B. Trial: Guilt Phase
Sanchez was represented by attorneys Eugene Toton and
Gary Frank. Toton was lead counsel at the guilt phase, and
Toton and Frank shared responsibilities at the penalty phase.
Before trial, the court appointed psychiatrist Francis
Matychowiak to determine whether Sanchez was mentally
competent. Dr. Matychowiak diagnosed Sanchez with
borderline personality disorder and no other significant
mental impairments, concluding that Sanchez was
competent to stand trial. Toton also retained psychologist
Theodore Donaldson, Ph.D. to assess Sanchez’s
competence, a possible insanity defense, and whether
Sanchez was developmentally disabled. Dr. Donaldson
found no reality deficits, thought disorders, significant
anxiety, or depression, and he concluded that Sanchez was
“a highly sociopathic individual.” Neither Dr. Matychowiak
nor Dr. Donaldson recommended any additional testing.
Toton did not pursue any further testing or psychological
evaluation, and he did not present a mental state defense at
trial.
Sanchez waived his right to a jury trial at the guilt and
special circumstance phases and submitted the guilt phase
for a bench trial based on the preliminary hearing transcripts,
10 SANCHEZ V. DAVIS
with some additional witness testimony and other
evidentiary submissions. Detectives Stratton and Boggs
testified about Sanchez’s incriminating statements made in
their interviews with him during their investigation of the
murders. See supra Part I.A.
The court also heard testimony from jailhouse informant
Hernandez. Hernandez was incarcerated with Sanchez for
two months in early 1987, and he reportedly spoke to
Sanchez about the Bocanegra murders. Sanchez, 12 Cal. 4th
at 19–20. Hernandez had been charged with receiving stolen
property and second-degree burglary. Id. In exchange for
his testimony against Sanchez, Hernandez received six
months in county jail and three years of probation. Id.
Hernandez testified that Sanchez told him that he went
to the Bocanegras’ house with Joey. Id. Hernandez’s
testimony was inconsistent as to whether Sanchez and Joey
planned to rob the Bocanegras or planned to borrow money.
Id. According to Hernandez, Sanchez said that he waited
outside and entered the house when he heard Joey and Juan
arguing in the hallway. Id. Sanchez tried to stop the fight
by hitting Juan with a curved metal bar, and Sanchez did not
say whether Joey stabbed Juan before or after Sanchez hit
Juan. Id.
Juanita heard the confrontation and came out of a back
room yelling. Id. Sanchez slipped in a puddle of blood as
he jumped over Juan to grab Juanita, and Sanchez told Joey
to “shut her up.” Id. Joey then stabbed his mother repeatedly
and pushed her into the sewing room. Id. Sanchez did not
tell Hernandez that he participated beyond restraining
Juanita, but Sanchez claimed that he saw Joey stab both
victims with a kitchen knife. Id. Sanchez threw the metal
bar into the front yard, one of the assailants threw the knife
into a canal, and Joey took the television, a toolbox, and his
SANCHEZ V. DAVIS 11
parents’ car. Id. Hernandez then reported Sanchez’s
statements to Detective Stratton. Id.
A second jailhouse informant named Charles Seeley
claimed to have had several conversations with Sanchez
about the murders. Seeley spoke to an investigator from the
district attorney’s office, and his statements were available
to Sanchez’s counsel before trial. Toton did not investigate
Seeley’s statements, and neither party offered Seeley’s
testimony in the guilt or penalty phase.
Against his attorneys’ advice, Sanchez repeatedly spoke
to Michael Trihey, a reporter for the Bakersfield Californian
newspaper. Trihey reported that Sanchez described himself
as a triple murderer, said death was an appropriate
punishment, and said that he wanted to die for what he had
done. Id. at 21, 36.
The trial court found Sanchez guilty of the first-degree
murders of Tatman and the Bocanegras. The court found
true the multiple-murder special circumstance allegation as
to the Bocanegra murders but found not true the robbery-
murder special circumstance allegations that had been
charged in the Tatman and Bocanegra murders. The court
also found that Sanchez used a deadly and dangerous
weapon in both Bocanegra murders, and that Sanchez was
guilty of the robbery of Tatman but not guilty of the robbery
of the Bocanegras.
C. Trial: Penalty Phase
The court empaneled a penalty phase jury and heard
more evidence and arguments. The prosecution introduced
aggravating evidence, including evidence of Sanchez’s past
crimes, as well as further testimony from Detective Boggs,
Detective Stratton, and Hernandez.
12 SANCHEZ V. DAVIS
The jury heard evidence of Sanchez’s criminal history,
including that in May 1982, Sanchez had assaulted a store
owner who was hospitalized for two weeks as a result. In
June 1982, Sanchez attacked an acquaintance who refused to
comply with Sanchez’s demand for money.
Boggs testified that Sanchez told him that after stealing
Tatman’s possessions, he and Reyes “kicked back, drank
some whiskey, smoked some dope, ate some food and just
relaxed for the rest of the evening.” Stratton and Hernandez
testified that Sanchez told Hernandez that he had taken an
active role in the murders, including beating the Bocanegras
and beating and assisting Reyes in stabbing Tatman. With
respect to the Bocanegra murders, Hernandez testified that
Sanchez entered the Bocanegra home with a metal bar, ran
up to Juan, held Juan in place until Joey got a knife, and then
both Sanchez and Joey beat and stabbed Juan. When Juanita
walked out of the sewing room, Sanchez “rushed [her],” and
both Sanchez and Joey stabbed her and beat her with the
metal bar.
As mitigating evidence, Sanchez presented testimony
from relatives, friends, and social anthropologist Isabel
Wright, Ph.D., to the effect that his “dysfunctional[,]
poverty-stricken, migratory family life severely hampered
his ability to live a productive life.” Sanchez was rejected
by his mother after his birth and sent to live with his
grandparents. At the age of three, Sanchez’s parents moved
him from his grandparents’ home to Arkansas. Soon
thereafter, Sanchez’s mother left his stepfather and moved
Sanchez and his half-brother to California. Further
disrupting Sanchez’s home life, his mother remarried a man
with three children, and the couple subsequently had five
additional children.
SANCHEZ V. DAVIS 13
Sanchez’s mother and stepfather were alcoholics and
drug abusers who were violent with each other and their
children. Sanchez’s grandparents also drank heavily and
abused drugs. Sanchez’s mother and stepfather died in their
mid-thirties of acute alcoholism. Sanchez tried to take care
of his siblings but turned to drugs to escape his difficult life.
He began committing crimes because he had “no marketable
job skills to prepare him for life as an adult.” Toton and
Frank did not introduce evidence of any mental impairments.
After hearing and weighing the aggravating and
mitigating evidence, the jury sentenced Sanchez to death.
D. Post-Conviction Proceedings
The California Supreme Court affirmed Sanchez’s
convictions and sentences on direct appeal. Sanchez, 12 Cal.
4th 1, cert. denied, 519 U.S. 835 (1996). The California
Supreme Court then denied Sanchez’s initial habeas petition
in a summary denial order. 4
On September 17, 1998, Sanchez timely filed a federal
habeas petition in the United States District Court for the
Eastern District of California. The district court denied that
petition on the merits on July 22, 2015. The district court
4
In 2017, Sanchez filed a second state habeas petition in the
California Supreme Court alleging claims under People v. Chiu, 59 Cal.
4th 155, 166 (2014) (an aider and abettor may not be convicted of first-
degree premeditated murder in California under the natural and probable
consequences doctrine). On May 22, 2019, the California Supreme
Court transferred Sanchez’s petition to Kern County Superior Court.
The state proceeding remains pending as of the publication of this
opinion.
14 SANCHEZ V. DAVIS
denied a motion for reconsideration, and Sanchez timely
appealed.
II. STANDARD OF REVIEW
We review a district court’s denial of a petition for a writ
of habeas corpus and its findings of fact de novo. See Stanley
v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010). Because
Sanchez’s petition was filed after the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) became effective,
we may grant relief only if the state court’s decision was:
(1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
Under § 2254(d)(1), “clearly established” “refers to the
holdings, as opposed to the dicta, of [the Supreme Court’s]
decisions as of the time of the relevant state-court decision.”
Lockyer v. Andrade, 538 U.S. 63, 71 (2003). A state court’s
decision is contrary to clearly established federal law “if the
state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). A state court’s decision is
an unreasonable application of clearly established federal
law “if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the
[petitioner]’s case.” Id.
Even a strong case for relief does not mean the state
court’s denial was unreasonable. Harrington v. Richter,
SANCHEZ V. DAVIS 15
562 U.S. 86, 102 (2011). The standard is highly deferential
and demands that state court decisions be given the benefit
of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
To obtain relief on a claim in federal court, a petitioner bears
the burden to demonstrate that the state court’s ruling on the
claim was so lacking in justification that there was an error
well understood and comprehended in existing law beyond
any possibility for fair-minded disagreement. Richter,
562 U.S. at 102–03.
We apply the deferential review under AEDPA to the
last reasoned state court decision. See Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018). In this case, because there is
no reasoned state court decision addressing any of the
claims, we consider what arguments could have supported
the state court’s decision, and then ask whether it is possible
fair-minded jurists could disagree about whether those
arguments or theories are inconsistent with a prior Supreme
Court holding. Richter, 562 U.S. at 102.
III. DISCUSSION
A. Ineffective Assistance of Counsel
Sanchez raises two ineffective assistance of counsel
claims. 5 In the first claim, initially certified by the district
court, Sanchez contends that Toton rendered ineffective
assistance at the guilt phase by failing to investigate and
present evidence from jailhouse informant Charles Seeley.
In the second claim, on which we grant a COA, Sanchez
contends that Toton and Frank rendered ineffective
5
We address Sanchez’s additional IAC challenges in the separate
memorandum disposition filed simultaneously with this opinion.
16 SANCHEZ V. DAVIS
assistance at the penalty phase for failing to raise Sanchez’s
mental impairments as mitigating evidence. 6
To establish that counsel’s legal representation fell
below the standard required by the Sixth Amendment,
Sanchez must show that counsel’s performance was both
deficient and prejudicial. Strickland v. Washington,
466 U.S. 668, 687 (1984); see also Smith v. Robbins,
528 U.S. 259, 285–89 (2000). The “benchmark for judging
any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686.
To establish deficient performance, Sanchez must show
that counsel’s performance fell below an objective standard
of reasonableness. Id. at 688. Under Strickland, we apply a
strong presumption that counsel’s performance was within
the wide range of reasonable professional assistance. Id. at
6
Toton was disbarred four months after Sanchez was sentenced to
death. Sanchez asserts that Toton was subject to disbarment proceedings
during the time of the trial due to allegations of failing to perform
services and misappropriation of client funds and deceptive dealings in
unrelated cases. Although Sanchez acknowledges that Toton was still a
licensed attorney while representing Sanchez, he asserts that Toton had
already agreed to surrender his law license and did not disclose this fact
to his co-counsel or the trial court. Sanchez also acknowledges,
however, that Toton’s later disbarment does not prove his ineffectiveness
in this case, although it may raise doubts about his competence. See
Sanders v. Ratelle, 21 F.3d 1446, 1460 (9th Cir. 1994) (holding that a
subsequent disbarment could help to explain a failure to investigate). We
limit discussion of Toton’s subsequent disbarment to this footnote. See
Bonin v. Calderon, 59 F.3d 815, 828–29 (9th Cir. 1995) (“[A] habeas
petitioner should not be allowed to transform what should be an inquiry
into the reasonableness of counsel’s performance . . . into a[] general
inquisition of defense counsel’s record and reputation.”).
SANCHEZ V. DAVIS 17
689. Moreover, “[e]stablishing that a state court’s
application of Strickland was unreasonable under § 2254(d)
is all the more difficult.” Richter, 562 U.S. at 105. Both the
Strickland standard and the standard under § 2254(d) are
highly deferential and when the two apply together, our
review is doubly deferential. Id. Under AEDPA, we ask not
whether counsel’s actions were reasonable; rather, we ask
whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard. Id. “The
Strickland standard is a general one, so the range of
reasonable applications is substantial.” Id. (internal citation
omitted). Thus, we are required not merely to give trial
counsel the benefit of the doubt, “but to affirmatively
entertain the range of possible reasons” for counsel having
proceeded as they did. Cullen v. Pinholster, 563 U.S. 170,
196 (2011) (internal quotation omitted).
The prejudice prong of the Strickland analysis is equally
burdensome. Sanchez must show that it is “reasonably
likely” that the result would have been different. Richter,
562 U.S. at 111 (citing Strickland, 466 U.S. at 696). The
likelihood of a different result must be substantial, not just
conceivable. Id. at 112. Assessing whether such a
reasonable probability of a different trial outcome would
have existed but for counsel’s deficient performance
requires assessing the hypothetical impact of evidence not
presented at trial on that which was presented. Strickland,
466 U.S. at 696 (“Taking the unaffected findings as a given,
and taking due account of the effect of the errors on the
remaining findings, a court making the prejudice inquiry
must ask if the defendant has met the burden of showing that
the decision reached would reasonably likely have been
different absent the errors.”). Our analysis “must consider
the totality of the evidence before the judge or jury,” keeping
18 SANCHEZ V. DAVIS
in mind that the weaker the evidence at trial, the more likely
it was that an attorney’s error was prejudicial. Id. at 695–96.
1. Claim 8: Evidence from Charles Seeley
Sanchez contends that Toton was ineffective for failing
to investigate and present evidence from jailhouse informant
Seeley. On July 27, 1987, an investigator from the Kern
County District Attorney’s Office interviewed Seeley at the
California Institution for Men at Chino. Seeley said that he
had been housed two cells away from Sanchez in the Kern
County Jail for months before Sanchez’s trial and claimed to
have had several conversations with Sanchez, including
discussions of Sanchez’s criminal activity.
Seeley said that Sanchez told him about the Bocanegra
murders. Seeley’s account differs from Hernandez’s
testimony. According to Seeley, Sanchez said that he and
Reyes met with Joey on the day of the murder and went to
the Bocanegra home so that Joey could ask his father for
money to buy drugs. Sanchez and Reyes sat in the living
room watching television while Joey spoke with his father.
Sanchez heard a scuffle in the kitchen, and he and Reyes
went to investigate. Sanchez saw Joey stabbing Juan
repeatedly and hitting Juan over the head with a curved,
metal bar.
Under Seeley’s account, Juanita came down the hall,
screaming for the men to stop. Sanchez and Reyes grabbed
Juanita and pushed her back down the hall into a bedroom.
Sanchez tried to tie Juanita’s hands and feet with some
nearby fabric. When she would not stop screaming, Sanchez
tied a length of cloth around her face or neck. According to
Seeley, Sanchez did not clarify whether he was trying to gag
or strangle her. While Sanchez tried to restrain Juanita,
Reyes unsuccessfully attempted to hit her with the metal bar.
SANCHEZ V. DAVIS 19
Seeing Reyes struggling, Sanchez took the bar and used it to
strike her on the head several times. Joey then came into the
room, told his mother to shut up, and repeatedly stabbed her
when she continued to scream.
After Sanchez, Reyes, and Joey completed their attack
on Joey’s parents, the three men cleaned up in the bathroom
and changed clothes. Sanchez then went outside to check
for potential witnesses and helped carry several items from
the house, including money from Joey’s parents. Sanchez
recalled that the three men were laughing about the murders
as they left the house, dumped the bloody clothes in a canal,
and took the stolen items to a drug connection’s house.
Regarding the Tatman murder, Seeley said that Sanchez
told him the following information: On the day before the
Bocanegra murders, Sanchez accompanied Reyes and an
unidentified third man to Tatman’s room at the Bakersfield
Inn while Tatman slept, planning to steal his television and
Social Security check. Tatman woke up while Sanchez was
carrying items out of the room, Reyes hit Tatman with a
metal bar, and one of the men stabbed Tatman. Sanchez
covered up Tatman’s body, helped clean up the room, and
carried out the stolen property.
Seeley also claimed in the interview that he spoke with
Reyes while they were incarcerated together. Reyes
reportedly laughed about the murders, recounting that he and
Sanchez had gone to the Bocanegra house to get money from
Joey’s father because they knew that Juan had just received
a disability check. Reyes allegedly said that he was in the
living room when he heard Joey arguing with his father.
When Reyes went to investigate, he saw Joey stabbing Juan.
Reyes reportedly said that he removed a metal bar from his
waistband and began to hit Juan in the head as Joey
continued stabbing, even after Juan slumped to the floor.
20 SANCHEZ V. DAVIS
According to Seeley, Reyes recounted that while he and
Joey assaulted Juan, Sanchez struggled to restrain Juanita in
the hallway and called for help pushing her to the back
bedroom. Reyes allegedly said that he hit Juanita with the
metal bar while Sanchez tried to gag or strangle her with a
length of fabric. Joey then came to the bedroom, told his
mother to shut up, and began to stab her. After the three men
cleaned up, Reyes reportedly said that they removed items
from the house, loaded them into Juanita’s car, and Reyes
and Joey changed into some of Juan’s clothes. According to
this account, there was so much stolen property in the car
that Reyes could barely fit in the back seat. Reyes also
allegedly said that all three men had been smoking PCP all
day and left the scene to buy more drugs and get high.
Although Seeley’s statements were made to an
investigator from the district attorney’s office and available
to Sanchez’s counsel before trial, neither party offered
Seeley’s testimony in the guilt or penalty phase.
In his state habeas petition, Sanchez claimed that Toton
was ineffective for not interviewing Seeley and not calling
him as a defense witness. The California Supreme Court
rejected this claim in a summary denial. In support of his
state and federal habeas petitions, Sanchez submitted a
transcript of Seeley’s statement; declarations from
Sanchez’s trial attorneys Toton and Frank, defense
investigator Susan Penninger, medical expert David Foster,
M.D., and habeas attorney Steven Shatz; and declarations
from Reyes’s counsel Stanley Simrin and Daniel Ybarra.
The district court denied the claim on the merits,
concluding that Toton could have had tactical reasons for not
interviewing Seeley and that the state court could have
reasonably concluded that there was not a reasonable
SANCHEZ V. DAVIS 21
probability of a different outcome had the proposed
testimony been presented.
On appeal, Sanchez emphasizes that Reyes’s admissions
to Seeley identified Reyes—not Sanchez—as the second
assailant responsible for Juan’s murder. This discrepancy,
according to Sanchez, directly contradicted the
prosecution’s theory that Sanchez aided and abetted Juan’s
murder. Sanchez further contends that Seeley’s testimony
would have pointed to Joey—not Sanchez—as the one who
told Juanita to shut up, undermining the prosecution’s theory
that Sanchez had aided and abetted the first-degree murder
of Juanita.
A strong argument can be made that, by failing to
investigate and present Reyes’s admissions to Seeley—
which refuted the only trial testimony that directly
implicated Sanchez in Juan’s murder—Toton’s performance
was deficient. Although Toton had no obligation to pursue
an investigation that would have been harmful to Sanchez,
Hernandez’s testimony already provided evidence for
concluding that Sanchez beat Juanita with the metal bar.
Thus, if Seeley were cross-examined on what Sanchez told
him, which was that Sanchez hit Juanita on the head with the
bar several times, that portion of Seeley's testimony might
be merely duplicative and would not add to the totality of
evidence against Sanchez. See Browning v. Baker, 875 F.3d
444, 473 (9th Cir. 2017) (recognizing that “the obligation to
investigate, recognized by Strickland, exists when there is no
reason to believe doing so would be fruitless or harmful”).
Moreover, Toton’s inactions can be said to show that Toton,
despite possessing Seeley’s recorded interview that detailed
Reyes’s confession, did not understand Seeley’s potential
value as a defense witness. See Staten v. Davis, 962 F.3d
487, 495 (9th Cir. 2020) (finding objectively unreasonable
22 SANCHEZ V. DAVIS
performance where “[t]he record thus suggests not that
[defense counsel] thoroughly probed the issue and
determined that the witnesses’ stories were not credible, but
rather that he did not recognize the possible significance of
the incident and failed to investigate it fully”).
Similarly, a strong argument can be made that, under the
doubly deferential standard of AEDPA and Strickland, a
reasonable jurist could determine that the failure to introduce
evidence of questionable benefit and possible harm to the
defense did not amount to deficient performance. See
Richter, 562 U.S. at 105, 108. 7 Seeley’s account may have
been more damaging to Sanchez than Hernandez’s account
because Seeley’s account may have described Sanchez
actively participating in Juan’s murder by preventing Juanita
from intervening or calling for help as the attack took place,
and Seeley’s version may have suggested a higher level of
culpability for Sanchez in murdering Juanita than was
apparent from Hernandez’s account. See Gerlaugh v.
Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997) (failure to call
three witnesses who could have relayed mitigating
sentencing evidence was a reasonable tactical decision
because counsel reasonably believed the testimony could
backfire). Toton’s prior experience with Seeley, coupled
with his correct assessment that the State would not call
Seeley as a witness, indicates that Toton may have
7
Sanchez presents a different claim than the one he asserted before
the California Supreme Court and the district court. On appeal, Sanchez
contends that Toton should have attempted to present only those portions
of Seeley’s statements that allegedly came from Reyes. Before the state
and district courts, however, Sanchez contended that Toton and Frank
rendered ineffective assistance for failing to introduce both his and
Reyes’s alleged statements to Seeley. Because we review the claims as
presented to the state court, we consider the claim in its totality. See
Pinholster, 563 U.S. at 181–82.
SANCHEZ V. DAVIS 23
reasonably determined that Seeley’s statements were not
credible.
Though there are reasonable arguments for and against
deficient performance, we do not decide whether Toton’s
conduct constituted deficient performance because we
conclude that Sanchez did not establish prejudice under
Strickland’s second prong.
The physical evidence presented at Sanchez’s trial was
not overwhelming; it established that at least two assailants
were responsible for the Bocanegra murders but did not
provide many clues as to who the assailants were. Juan and
Juanita were discovered murdered in their home having
sustained stab wounds and head injuries. Blood spatter
“indicated a fierce struggle occurred throughout the house,”
and two sets of shoeprints were identified in the blood. 8
Sanchez, 12 Cal. 4th at 18. From this, the State’s theory—
at least at Sanchez’s trial—was that two assailants, Sanchez
and Joey Bocanegra, attacked and killed Juan and Juanita
Bocanegra. The physical evidence that tied Sanchez to the
murders was that he was later discovered in possession of a
television that he had taken from the Bocanegras’ residence;
Sanchez also sold the Bocanegras’ vacuum cleaner to
another individual. Other physical evidence connected
Reyes and Joey Bocanegra to the murders. This included
Reyes’s bloody palm print, which was found on the front
doorknob inside the Bocanegra residence, and Joey’s
fingerprints, which were found in the Bocanegras’ blood-
soaked car the day after the murders.
8
The State’s expert later revised his report during the state’s case
against Reyes for the same murders and concluded there were three sets
of shoeprints in the kitchen.
24 SANCHEZ V. DAVIS
Beyond the physical evidence, Sanchez made
incriminating statements to three parties about the
Bocanegra murders which were admitted in evidence against
him. The most important of these witnesses was Sanchez’s
cellmate at the county jail, Rufus Hernandez. Hernandez
provided the only evidence that Sanchez attacked Juan
Bocanegra. Other evidence—physical and testimonial—
tended to show that Sanchez was at the Bocanegra home
when Juan and Juanita were murdered. Hernandez testified
that Sanchez told him that he had gone to the Bocanegra
residence with Joey the morning of the murders, and at some
point, heard Joey arguing with Juan in the house while he
waited outside. Sanchez entered the house and attempted to
break up the fight between the father and son, and then
Sanchez began hitting Juan with a curved metal bar, and
Joey stabbed and killed Juan. Juanita came into the room
screaming, and Sanchez yelled at Joey to “shut her up.”
Sanchez then grabbed Juanita while Joey stabbed her, and
the two of them pushed her into the back bedroom where she
was killed. Joey and Sanchez then took a few items from the
home and left. Thus, regardless of whether Reyes told
Seeley that Reyes wielded the metal bar hitting Juan, and
Hernandez was incorrect as to that, the fact remains that
Hernandez put Sanchez in the middle of the Joey-Juan fight;
he was not “down the hall” in the living room watching TV.
Hernandez’s testimony also provides evidence that Sanchez
aided and abetted Juan’s murder when he restrained Juanita
and told Joey to “shut her up,” because the only reasonable
inference is that he was trying to prevent her from interfering
in Juan’s murder. This is because the object was to ensure
Joey got the money for drugs from Juan one way or another.
A second witness who testified about Sanchez’s
incriminating statements was police investigator Bob
Stratton. Stratton testified that he spoke to Sanchez on two
SANCHEZ V. DAVIS 25
occasions. In their first conversation, Sanchez told Stratton
that he had seen Joey on the morning Juan and Juanita were
killed, but Sanchez denied having gone to the Bocanegra
residence with Joey. One week later, however, Sanchez
again talked to Stratton. This time Sanchez “asked Stratton
a series of hypothetical questions, including: ‘What if I was
present in the house; what if Joey hit his dad after his dad
had refused to give him some money; and what if Joey's dad
hit him back and what if Joey got real mad and grabbed a
knife and started stabbing his dad; what if Joey’s mother
didn't know what was happening because she was in another
room?’” Sanchez, 12 Cal. 4th at 20. While Sanchez’s
questions to Stratton stopped short of confessing to the
murders, they still placed Sanchez as a witness to the murder
of Juan. Moreover, they were false as to Juanita not knowing
what was happening, because Sanchez had to restrain her
when she came to the aid of Juan.
Finally, Michael Trihey, a reporter with the Bakersfield
Californian, testified briefly regarding interviews he
conducted with Sanchez after he was arrested. Citing
reporter’s privilege, Trihey provided very limited testimony.
In the short, substantive portion of his testimony, Trihey
stated that Sanchez had said in an interview that he was “a
triple murderer” and that his victims “were killed for their
social security checks.” 9 Thus, even if Sanchez might have
incorrectly confessed to having been the actual “murderer”
of Juan, Juanita, and Tatman, this statement shows that he
9
A fourth witness, Detective Randy Boggs, testified about the
Tatman murder only. Boggs testified that Sanchez admitted he had gone
with Reyes to rob Tatman the day before the Bocanegra murders.
Sanchez told Boggs that while he was removing a refrigerator from
Tatman’s room, he witnessed Reyes kill the disabled Tatman by hitting
him in the chest, throwing him to the floor, and stabbing him with a
screwdriver. Sanchez, 12 Cal. 4th at 21.
26 SANCHEZ V. DAVIS
thought himself responsible for their murders, which is
evidence of aiding and abetting.
From the trial evidence and testimony, the judge found
Sanchez guilty of the first-degree murders of Juan and
Juanita Bocanegra on the theory that he aided and abetted
Joey’s premeditated killings of his parents. The State argued
at trial, and the California Supreme Court affirmed on direct
appeal, that Hernandez’s testimony allowed the court to
conclude that Sanchez had beaten both Bocanegras with a
metal bar while they were stabbed to death and that the act
of beating both victims with the metal bar supported a
finding that Sanchez knowingly aided in the murders and
that he intended for both victims to be killed. Sanchez,
12 Cal. 4th at 34–35. Sanchez was also found guilty of the
separate first-degree murder of Woodrow Wilson Tatman on
a felony murder theory whereby Sanchez aided and abetted
Reyes in the robbery of Tatman, and during the robbery
Reyes killed Tatman. Sanchez, 12 Cal. 4th at 68.
Regarding special circumstances that potentially made
Sanchez eligible for capital punishment, the court found the
robbery murder special circumstance allegation not true for
both the Tatman and Bocanegra murders. For the Bocanegra
murders, the court found that any intent to rob the victims
was not formed until after victims were killed, making the
robbery murder special circumstance inapplicable. The trial
court found the robbery murder special circumstance not true
for the Tatman murder because Sanchez was “not the actual
killer” and did not have an “intent to kill” Tatman. Id. at 67–
68. The court found the multiple murder special
circumstance allegation true for the Bocanegra murders
only. Id. at 17. The upshot of all of this is that Sanchez’s
eligibility for a capital sentence was based on a finding that
he aided in the murders of both Juan and Juanita Bocanegra
SANCHEZ V. DAVIS 27
and that he harbored an intent to kill both victims. See id.
at 17, 31–32 & n.1. 10
As discussed, had Seeley testified, the court would have
heard an account of the Bocanegra murders that, while in
some respects irreconcilable with the account given by
Hernandez, still provided evidence that Sanchez aided and
abetted the deaths of the Bocanegras and intended to kill
both of them. The State’s theory at trial, and also when
arguing the sufficiency of the evidence on direct appeal, was
that Sanchez was liable as an aider and abettor of Juan’s
murder because Sanchez assaulted Juan with the metal bar
while he was being stabbed by Joey, per Hernandez’s
testimony. 11 Under Seeley’s accounts from Reyes and
Sanchez, Sanchez still aided and abetted Juan’s murder by
restraining Juanita from interfering. 12 Accordingly,
regardless of whose testimony the court would have found
more credible—Hernandez’s or Seeley’s—there is no
reasonable probability of a different trial outcome. This is
reinforced by Stratton’s testimony, which placed Sanchez as
a witness to the murder of Juan and showed that Sanchez was
10
Sanchez’s intent may be inferred from his actions where direct
evidence is lacking, and “an act which has the effect of giving aid and
encouragement, and which is done with knowledge of the criminal
purpose of the person aided, may indicate that the actor intended to assist
in fulfillment of the known criminal purpose.” People v. Beeman,
35 Cal. 3d 547, 559 (1984).
11
In the State’s closing argument, the assistant district attorney
mentioned at least seven times that Sanchez struck Juan Bocanegra in
the head with the metal bar as he was being stabbed, and from that act
the court should infer that Sanchez intended to kill Juan or aid Joey in
killing Juan.
12
This is the alternative argument that the State put forth at oral
argument.
28 SANCHEZ V. DAVIS
not telling the true story about Juanita coming to Juan’s aid,
which Sanchez prevented by grabbing her. Sanchez’s
admission to Trihey that he was a “triple murderer” is further
evidence of aiding and abetting.
We hold that presenting Seeley’s testimony would not
have created a reasonable probability that Sanchez would not
have been convicted as an aider and abettor in Juan and
Juanita’s murders.
2. Claim 48: Mental Impairment Evidence
Sanchez contends that Toton and Frank provided
ineffective assistance when they did not raise Sanchez’s
mental impairments as mitigating evidence at the penalty
phase. We conclude that Toton and Frank’s performance
was not deficient on this claim.
The California Supreme Court summarily denied this
claim in Sanchez’s state habeas petition. The district court
denied this claim on the merits, holding that it was not
reasonably probable that Sanchez would have received a
more favorable sentence had further mitigating evidence
been presented. The district court also specifically held that
the state court could have reasonably found that Sanchez’s
alleged neurological and psychiatric conditions were not
sufficiently supported by the record.
i. The Mental Impairment Evidence
In support of this claim, Sanchez submitted a report from
psychiatrist Francis Matychowiak, and declarations from
psychologist Theodore Donaldson, Ph.D.,
SANCHEZ V. DAVIS 29
neuropsychologist Karen Froming, Ph.D., and psychiatrist
David Foster, M.D. 13
13
Sanchez also submitted an unsigned declaration of Dr. Wright
concerning her recollections of the penalty phase. Post-conviction
counsel Nina Rivkind submitted these draft versions with her own signed
declaration attesting that she was in the process of revising and finalizing
a declaration for Wright’s signature when Wright fell ill and passed
away. The first version of Wright’s declaration is a draft on which,
according to Rivkind’s declaration, Wright wrote handwritten changes
and edits. Rivkind attested that she made these edits and others after
speaking with Wright on the phone, that she submitted a revised draft for
Wright’s consideration, and that she learned of Wright’s death soon
thereafter.
The revised draft declaration purported to reflect Wright’s
recollections that Frank began work on the penalty phase late, that he
was uncommunicative with Sanchez engendering mistrust, and that the
penalty efforts were unfocused and mismanaged. The unsigned
declaration also described Wright’s purported efforts to convince Frank
to engage experts in the effects of PCP use and a conversation wherein
Wright recommended the use of a neuropsychologist to determine
whether Sanchez had evidence of organic brain damage as a result of
drug abuse. According to the unsigned declaration, a lack of time was
the greatest impediment to performing additional work on Sanchez’s
history and mental health. Although the declaration purports to describe
Wright’s efforts to convince Frank to pursue evidence of a possible
mental disorder, it also contains admissions that Wright was not a
psychologist and not qualified to make a mental assessment.
Because the California Supreme Court summarily denied Sanchez’s
habeas petition, we do not know whether it considered Wright’s
unsigned declaration. As discussed infra, it was reasonable for the state
court to deny Claim 48 concerning evidence of Sanchez’s mental
impairments. If the court declined to consider the Wright declaration, its
denial was reasonable because the record contained no other expert
suggestion that additional testing was needed. Moreover, Rivkind’s
signed declaration indicates that both versions of the unsigned
declaration were drafts and works in progress, and Rivkind did not aver
30 SANCHEZ V. DAVIS
The trial court appointed Dr. Matychowiak to determine
if Sanchez was competent to stand trial. Dr. Matychowiak
reported that Sanchez did not feel that he had killed anyone
but was depressed and wanted to plead guilty to “get it over
with.” Dr. Matychowiak recorded Sanchez’s difficult
childhood, which included being raised initially by his
grandmother and then taken back by his mother, who was
addicted to drugs and would lock him in the closet. Sanchez
also said that he began sniffing paint around the fifth grade,
suffered a head injury in a fight when he was about 16 to
18 years old, and that his substance abuse since that time
included alcohol and PCP. Sanchez reported no significant
history of psychiatric hospitalizations or outpatient
treatment, and denied any suicidal thoughts, delusions, or
hallucinations at the time of the interview.
Dr. Matychowiak opined that Sanchez understood the
court process and system, demonstrated no signs of bizarre
mental processes, and had no discernable memory gaps.
Sanchez also appeared to have borderline intelligence with
no insight and poor general judgment. Dr. Matychowiak
diagnosed Sanchez with a Borderline Personality Disorder
and no other significant mental impairment, although he
noted a recent history of depression evidenced by an
apparent suicide attempt. Dr. Matychowiak concluded that
Sanchez’s diagnostic presentation did not significantly
interfere with his ability to make and explain his decisions
(including the decision to plead guilty and to accept the death
that Wright agreed with or agreed to sign the declaration after the first
round of edits. If the court considered the Wright declaration, its denial
was also reasonable because Wright’s declaration is contradicted by
other, signed declarations and because of her admission that she was not
qualified to make a mental assessment. We limit our consideration of
the Wright declaration to this footnote.
SANCHEZ V. DAVIS 31
penalty), to understand court procedures and his need to
present a defense, or to cooperate with his attorneys.
Before the preliminary hearing, Toton retained
Dr. Donaldson to assess Sanchez’s competence to stand
trial, a possible insanity defense, and whether Sanchez was
developmentally disabled. Dr. Donaldson detailed his
findings in a declaration dated seven years after Sanchez’s
trial. Dr. Donaldson reported that Sanchez was of below
average IQ (except for signs of average intelligence in
abstract reasoning), that Sanchez had possible organic
difficulties in perceptual motor integration (likely related to
a history of paint sniffing and substance abuse), and that
Sanchez had serious memory deficits. Nonetheless,
Dr. Donaldson believed Sanchez to be of average
intelligence, and he opined that testing showed no reality
deficits, thought disorders, significant anxiety, or
depression. Dr. Donaldson further observed that Sanchez
displayed a “rather grandiose view of himself,” and opined
that Sanchez was “a highly sociopathic individual.”
Almost two months after submitting his first declaration,
Dr. Donaldson submitted a second declaration, which was
also included with Sanchez’s state habeas petition.
Dr. Donaldson said that he evaluated Sanchez only for an
insanity defense and did not consider the possibility of other
mental state defenses. He said that at the time he interviewed
and tested Sanchez, he discovered indications of a possible
organic brain disfunction, which might have helped in
Sanchez’s defense.
Dr. Donaldson opined that his original findings
warranted further investigation through a
neuropsychological evaluation—which he was not qualified
to conduct—to determine if Sanchez suffered from organic
or developmental deficits. He stated that he would likely
32 SANCHEZ V. DAVIS
have recommended that Toton retain a neuropsychologist if
he had been asked, but he could not recall if such a
conversation ever took place. Also, he stated that if he had
been aware of information regarding Sanchez’s in utero
exposure to drugs, his childhood, and a head injury sustained
when Sanchez was 18 years old, such information would
have supported a recommendation for further testing.
Dr. Donaldson did not repudiate his original determination
that Sanchez was a highly sociopathic individual.
In support of his state habeas claim, Sanchez also
submitted Dr. Froming’s declaration, dated seven years after
Sanchez’s sentencing. Dr. Froming opined that Sanchez
may have needed neuropsychological testing based on
possible in utero exposure to drugs, his childhood marred by
malnutrition and abuse, his learning difficulties in school, his
history of drug abuse, a head injury, and his mental health
history.
According to Dr. Froming, Sanchez displayed severe,
diffuse brain damage across multiple tests from several
possible sources, including in utero exposure to drugs,
inherited deficits, head injury, and severe poly-substance
abuse. However, Dr. Froming admitted that the possibilities
of in utero drug exposure, inherited deficits, and head
injuries were not confirmed but were based on anecdotal
evidence regarding Sanchez’s social history. These
problems would have been exacerbated by drug and alcohol
intoxication. Dr. Froming further opined that the likely
circumstances of the Bocanegra murders indicated that
Sanchez was acting with a reduced capacity to respond
SANCHEZ V. DAVIS 33
appropriately to Joey’s sudden attacks and would have likely
prevented Sanchez from forming premeditation. 14
Although Dr. Froming added that all the tests she
performed were available and in use at the time of Sanchez’s
arrest and trial, she did not declare that she would have been
available or willing to testify at that time. Dr. Froming
opined that Sanchez’s need for neuropsychological testing
should have been apparent at the time of trial based on
Dr. Donaldson’s observations of perceptual motor
disturbance and deficits in auditory and visual memory,
although she did not opine whether that need would have
been obvious to someone who was not a trained
neuropsychologist.
Finally, Sanchez also submitted Dr. Foster’s declaration
in support of this claim on habeas review. Dr. Foster
presented a psychiatric opinion to the California Supreme
Court, dated October 19, 1995.
Dr. Foster opined that Sanchez was incapable of
knowingly waiving his right to a jury trial based on the
combined effects of depression, PTSD, and PCP withdrawal
and flashbacks. Reviewing the reports of Dr. Matychowiak
and Dr. Donaldson, Dr. Foster asserted that these evaluations
14
Dr. Froming also opined that Sanchez’s deficits would have
prevented him from being able to knowingly and intelligently waive his
right to a jury trial or to proceed with his counsel. These conclusions,
however, were made by reference to California jury instructions and
presented opinions regarding legal conclusions, outside the scope of
Dr. Froming’s expertise. See Cal. Evid. Code § 801 (limiting expert
testimony to opinions related to a subject that is sufficiently beyond
common experience that the opinion would assist the trier of fact, and
based on matter including special knowledge that is of a type that
reasonably may be relied upon by an expert in forming an opinion).
34 SANCHEZ V. DAVIS
were inadequate and missed crucial signs in Sanchez’s
presentation, which should have alerted them to deeper
organic and affective disorders.
ii. Ineffective Assistance of Counsel
The California Supreme Court could have reasonably
concluded that Toton’s and Frank’s performance did not fall
below an objective standard of reasonableness when they did
not seek neuropsychological testing at the penalty phase.
Because we hold that Toton’s and Frank’s performance was
not deficient, we do not reach the prejudice prong of
Strickland.
Although Dr. Froming’s and Dr. Foster’s declarations
may provide relevant details about Sanchez’s possible
mental impairments, such details were not available to Toton
and Frank. At the penalty phase, Toton and Frank were in
possession of Dr. Donaldson’s and Dr. Matychowiak’s
reports. Dr. Donaldson concluded that Sanchez was well-
adapted to the world in which he lived, was “highly
sociopathic,” and showed no indications of other significant
mental illness. That opinion was consistent with
Dr. Matychowiak’s opinion, which also diagnosed Sanchez
with a personality disorder and no other significant mental
impairment. Neither Dr. Matychowiak nor Dr. Donaldson
apparently communicated a need for further testing to
counsel at the time of the penalty phase.
Sanchez asserts that Toton should have hired additional
experts. The choice of what type of expert to use, however,
is one of trial strategy and deserves “a heavy measure of
deference.” Turner v. Calderon, 281 F.3d 851, 876 (9th Cir.
2002) (quoting Strickland, 466 U.S. at 691) (trial counsel
was not ineffective for using a general psychological expert
rather than one specialized in the effects of PCP). Counsel
SANCHEZ V. DAVIS 35
is not constitutionally ineffective because, with the benefit
of hindsight, other strategies or experts may have been a
better choice. Id.
Also, having consulted two doctors who did not provide
support for the conclusion that Sanchez was mentally
impaired in a way that could provide a defense, counsel was
under no duty to continue to search in an unending quest to
find a supportive expert, especially when if that were done,
the views of the first experts would still be discoverable and
usable by the prosecution to contradict. See Burger v. Kemp,
483 U.S. 776, 794 (1987) (“[C]ounsel’s decision not to
mount an all-out investigation . . . in search of mitigating
circumstances was supported by reasonable professional
judgment.”); Preston v. Delo, 100 F.3d 596, 605 (8th Cir.
1996) (“Counsel can reasonably decide not to present
potentially helpful mitigating evidence—including the
testimony of mental experts—if such evidence would result
in the introduction of damaging evidence.”). Even if
Dr. Foster and Dr. Froming had been available to testify, and
had testified consistent with their declarations, the
prosecution could have cross-examined them by introducing
Dr. Donaldson’s report, which found no severe mental
illness or cognitive impairment and concluded that Sanchez
was a “highly sociopathic individual.” Toton and Frank
could have reasonably opted to avoid further exploration of
that diagnostic “basket of cobras,” potentially uncovering
more evidence harmful to the defense. Gerlaugh, 129 F.3d
at 1035 (noting the “obvious countervailing tactical dangers”
of evidence regarding antisocial personality disorder and
holding that trial counsel was not ineffective for failing to
develop possibly dual-edged psychological evidence).
Dr. Donaldson states that he was not in possession of all
the reports, records, and other information that was
36 SANCHEZ V. DAVIS
available. But an attorney is not responsible for gathering
background material that might be helpful to an expert
evaluating his client in the absence of a specific request for
that information. Turner, 281 F.3d at 876 (citing Hendricks
v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995)). To impose
such a duty would “defeat the whole aim of having experts
participate in the investigation.” Turner, 281 F.3d at 876–
77 (quoting Hendricks, 70 F.3d at 1038).
Toton and Frank possessed two expert reports that came
to similar conclusions, neither of which was helpful to the
defense. Both opined that Sanchez suffered from a
personality disorder and did not display evidence of serious
brain dysfunction. There is no indication that Dr. Donaldson
advised Toton or Frank that they would need to hire
additional experts or run further tests.
We hold that Toton and Frank did not render deficient
performance when they did not raise Sanchez’s mental
impairments as mitigating evidence.
B. Claim 59: Mitigation Evidence
Sanchez next contends that the trial court failed to
consider his mitigation evidence presented during the
penalty phase as required by Cal. Pen. Code § 190.4(e).
Because we cannot issue a writ of habeas corpus based on
perceived error of state law, Pulley v. Harris, 465 U.S. 37,
41 (1984), Sanchez’s claim fails.
At the penalty phase, the trial court empaneled a jury,
which heard evidence of aggravating and mitigating factors
before returning a verdict of death. Under Cal. Pen. Code
§ 190.4(e), at the time Sanchez’s conviction became final,
imposing a death sentence triggered an automatic motion for
a modification of the death sentence, on which the trial judge
SANCHEZ V. DAVIS 37
ruled. On this review of the jury’s verdict, the judge must
“consider . . . the aggravating and mitigating circumstances
. . . [and] state on the record the reasons for his findings.”
Cal. Pen. Code § 190.4(e).
On direct appeal to the California Supreme Court,
Sanchez asserted that the trial court committed prejudicial
error in denying his automatic motion for a modification of
the death sentence. Sanchez, 12 Cal. 4th at 83. The
California Supreme Court denied this claim on the merits,
determining that the trial court’s decision complied with
California law. Id.
In affirming the trial court’s ruling, the California
Supreme Court noted that the trial judge reviewed the
statutory mitigating factors under California Penal Code
§ 190.3(a)-(i) and found that several did not apply. Id. The
trial court discussed that Sanchez may have been under the
influence of PCP as one of those mitigating factors. Id. The
court then reflected, “[a]re there other circumstances that
mitigate against the aggravation of the [defendant], I think
not.” Id. The California Supreme Court noted:
[B]efore denying the modification motion,
the court stated that it had considered
defendant’s motion to reduce penalty and the
People’s response, both of which referred to
defendant’s mitigating evidence. Thus,
although the court did not specifically
mention defendant’s mitigating evidence of
his family life, the court’s statement
regarding section 190.3, factor (k) evidence
shows it considered all pertinent penalty
phase evidence, including testimony about
defendant’s family life and his behavior
toward his siblings, but merely found it
38 SANCHEZ V. DAVIS
unpersuasive. The record is clear that. . . the
trial court independently assessed the weight
of the evidence under each factor, and stated
its reasons for denying defendant’s motion.
Id. The California Supreme Court concluded that all
constitutional and statutory considerations were observed in
the trial court’s ruling. Id.
The district court ruled that this claim raised solely an
issue of state law under Estelle v. McGuire, 502 U.S. 62, 67–
68 (1991) (holding that a federal habeas court may not
reexamine state court determinations of state law questions).
Accordingly, the court found that the state court’s rejection
of this claim on the merits did not amount to either an
unreasonable application of clearly established federal law
or an unreasonable determination of the facts.
Sanchez asserts that the California Supreme Court’s
denial of this claim on the merits amounted to an
unreasonable determination of the facts under 28 U.S.C.
§ 2254(d)(2) and that the trial court violated the Eighth and
Fourteenth Amendments when it failed to consider his
mitigating evidence.
Despite Sanchez’s contention to the contrary, whether
the state court adequately considered mitigation evidence
when independently reviewing the jury’s death verdict is a
matter of state law. The Supreme Court has held that the
Eighth and Fourteenth Amendments require that a
sentencing judge or jury not be precluded from considering
in mitigation any aspect of a defendant’s character or record,
or any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death. Eddings v.
Oklahoma, 455 U.S. 104, 110 (1982). But Sanchez does not
challenge the fact finder’s underlying sentencing decision in
SANCHEZ V. DAVIS 39
this claim. He does not argue that the California statute
“preclude[s] the sentencer from considering any mitigating
factor[,]” nor does he argue that the judge “instructed [the]
jury to disregard the mitigating evidence.” See id. at 112–15
(trial judge’s statement that “‘in following the law,’ he could
not ‘consider’ . . . the mitigating evidence of Eddings’
family history” violated the Constitution). Rather, he
challenges the sufficiency of the judge’s consideration of
mitigating factors in applying a state statute reviewing the
jury’s decision.
Sanchez has not cited any clearly established federal law
to support the claim that the Constitution requires an
independent judicial review of a jury’s death verdict. That
right exists in state law, and the California Supreme Court
affirmed the trial court’s review on direct appeal. See Cal.
Pen. Code § 190.4(e); Sanchez, 12 Cal. 4th at 83. Sanchez
contends that judicial review of a death penalty sentence
pursuant to Penal Code § 190.4(e) falls squarely within
clearly established Eighth Amendment law because “the jury
verdict [merely] authorizes the death penalty, [but] the judge
becomes the sentencer and must determine whether, in his or
her own judgment, a death sentence is warranted.” But
Sanchez cites no law indicating that this procedural
safeguard renders the judge the ultimate sentencer, nor does
he show that the judge’s independent review of the jury’s
verdict is subject to the same clearly established Eighth
Amendment law as the jury’s initial verdict. As the State
argues, although the Supreme Court has discussed this
procedure favorably, see Pulley, 465 U.S. at 52–53, it has
never held that this type of trial court review is
constitutionally required. We have also previously
determined that a court’s review of the sentencing jury’s
verdict is a matter of California state law. Turner, 281 F.3d
at 871 (“[B]ecause the trial court made an individualized
40 SANCHEZ V. DAVIS
determination of whether death was the proper punishment,
we agree with the district court that ‘at most the [trial court’s]
error would be one of state law.’”) (second alteration in
original). Without clearly established law to this effect, we
cannot fairly infer that a state’s decision to provide a
favorable procedural safeguard ought to subject the state’s
procedures to double scrutiny.
Federal habeas review is not available to retry state law
issues. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
Because this claim rests on an issue of state law, we do not
review Sanchez’s argument that the state court made an
unreasonable determination of the facts under 28 U.S.C.
§ 2254(d)(2). See Pulley, 465 U.S. at 41.
C. Claim 61: Proportionality
Sanchez contends that his death sentence is
disproportionate to the sentences received by his co-
defendants. Although Joey was originally charged with his
parents’ murders, all charges against him were dropped.
Sanchez, 12 Cal. 4th at 84. Reyes pleaded guilty to all three
murders and he received a sentence of 25 years to life in
prison. Id. According to Sanchez, these disparate
impositions of penalties violate the Eighth and Fourteenth
Amendments and he is entitled to intra-case proportionality
review.
The California Supreme Court denied this claim on
direct appeal. Sanchez, 12 Cal. 4th at 84. The court
determined that the Eighth Amendment did not require an
intra-case comparison of a defendant’s sentence with other
culpable persons, whether charged or uncharged. Id. (citing
Pulley, 465 U.S. at 53). When Sanchez re-raised the
proportionality claim with new allegations of mental
SANCHEZ V. DAVIS 41
impairments on state habeas review, the California Supreme
Court summarily denied the claim.
The district court held that the California Supreme Court
could have reasonably concluded that Sanchez’s
proportionality claim was foreclosed by Pulley. According
to the district court, the state court therefore could have
reasonably determined on habeas review that Sanchez did
not establish that its prior rejection of this claim on the merits
amounted to either an unreasonable application of clearly
established federal law or an unreasonable determination of
the facts.
In arguing that his sentence was disproportionate,
Sanchez contends that the evidence that he intended to kill
the Bocanegras was “far from overwhelming.” According
to Sanchez, he played no role in Juan’s murder and he raised
a reasonable doubt that he deliberately aided and abetted in
Juanita’s murder. Because deferential habeas review
requires that clearly established federal law compel a result,
Sanchez’s argument fails.
In Pulley, the Supreme Court rejected the argument that
the Eighth Amendment requires a state appellate court to
compare the sentence in one case with the penalties imposed
in similar cases. 465 U.S. at 43–44. The Supreme Court
later held that, absent a showing that a capital punishment
system operates in an arbitrary and capricious manner,
habeas petitioners cannot prove a constitutional violation by
showing that other defendants who may be similarly situated
did not receive the death penalty. McCleskey v. Kemp,
481 U.S. 279, 306–07 (1987).
Sanchez contends that his case is distinct because his
sentence is disproportionate in comparison to the outcomes
realized by his co-defendants, rather than similarly situated
42 SANCHEZ V. DAVIS
defendants in other cases. Sanchez asserts that although the
Supreme Court rejected inter-case proportionality review in
Pulley, it does not rule out a requirement of intra-case
proportionality. But Pulley and McCleskey do not make the
distinctions that Sanchez now asserts. Nothing in
McCleskey compels the conclusion that the category of
“other defendants who may be similarly situated” does not
include co-participants in the same crimes. McCleskey,
481 U.S. at 306–07.
Defendants charged with the same crimes in the same
case often appear before the court under different
circumstances, which include their individual levels of
participation in the criminal conduct, their criminal histories,
individual aggravating and mitigating factors, and the extent
to which they have taken responsibility for the crime. See,
e.g., Gregg v. Georgia, 428 U.S. 153, 198–99 (1976)
(holding that a decision to afford an individual defendant
mercy does not violate the Constitution so long as “the
decision to impose it [is] guided by standards so that the
sentencing authority [will] focus on the particularized
circumstances of the crime and the defendant.”). We
acknowledge that Sanchez’s sentence is severe given the
results obtained by Joey and Reyes. But we cannot grant
relief based on broad principles of fairness applicable to all
capital cases. There is no clearly established federal law
requiring intra-case proportionality review.
Sanchez argues that the Supreme Court in Pulley still
assumed that some form of meaningful appellate review is
required. See Pulley, 465 U.S. at 45. However, the
California Supreme Court provided meaningful appellate
review when it rejected Sanchez’s proportionality claim. It
concluded that multiple circumstances pertained to Sanchez
individually, including his criminal history and his status as
SANCHEZ V. DAVIS 43
a recent parolee following imprisonment for two assaults,
and any comparisons to the outcomes obtained by his co-
participants do not accrue in his favor. Sanchez, 12 Cal. 4th
at 85. We affirm the district court’s denial of habeas relief
on Sanchez’s proportionality claim.
IV. CONCLUSION
Under the highly deferential standards imposed on us by
AEDPA, we cannot conclude that the California Supreme
Court’s inferred conclusions were “an unreasonable
application of, clearly established Federal law” or “based on
an unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d). For the foregoing reasons, on the issues
discussed in this opinion, we affirm the district court’s denial
of Sanchez’s petition.
AFFIRMED.