UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TEDDY BRIAN SANCHEZ, No. 16-99005
Petitioner-Appellant, D.C. No.
1:97-cv-06134-AWI-SAB
v. Eastern District of California,
Fresno
RONALD DAVIS, Warden, San Quentin
State Prison, ORDER
Respondent-Appellee.
Before: GOULD, CALLAHAN, and BEA, Circuit Judges.
The Memorandum Disposition filed on April 22, 2021, is WITHDRAWN
and REPLACED with an amended Memorandum Disposition filed concurrently
with this order.
With that amendment, the panel unanimously votes to deny the petition for
panel rehearing. Judges Gould and Callahan vote to deny the petition for rehearing
en banc and Judge Bea so recommends.
The full court was advised of the petition for rehearing en banc. A judge
requested a vote on whether to rehear the matter en banc, and the matter failed to
receive a majority of the votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
The petition for panel rehearing and rehearing en banc is DENIED. Future
petitions for rehearing are PERMITTED under the deadlines set out in Federal
Rules of Appellate Procedure 35(c) and 40(a)(1).
IT IS SO ORDERED.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEDDY BRIAN SANCHEZ, No. 16-99005
Petitioner-Appellant, D.C. No.
1:97-cv-06134-AWI-SAB
v.
RONALD DAVIS, Warden, San Quentin MEMORANDUM*
State Prison,
Respondent-Appellee.
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
Before: GOULD, CALLAHAN, and BEA, Circuit Judges.
Teddy Sanchez appeals the district court’s denial of his petition for a writ of
habeas corpus under 28 U.S.C. § 2254. 1 We grant Certificates of Appealability on
the previously uncertified issues pertaining to ineffective assistance of counsel. 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
In a separate opinion, filed concurrently with this memorandum disposition, we
discuss the facts of this case and affirm against the three previously certified issues
and one previously uncertified issue (“Claim 48”).
U.S.C. § 2253(c)(2); see Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 2017).
We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253, and we affirm.
We address each of Sanchez’s ineffective assistance of counsel claims in turn.
First, Sanchez argues that his counsel was ineffective in failing to investigate
the shoeprint evidence from the Bocanegra home (“Claim 10”). The evidence of
three sets of shoeprints found in the house, rather than two, however, does not
demonstrate that counsel’s failure to introduce it constituted ineffective assistance.
See Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009) (a habeas petitioner
“cannot show prejudice for [counsel’s] failure to present what is most likely
cumulative evidence.”). The evidence suggests that three perpetrators participated
in the murders, a fact already known to the trial court through the handprint
evidence. People v. Sanchez, 12 Cal. 4th 1, 18 (1995). Under our doubly
deferential review, Harrington v. Richter, 562 U.S. 86, 105 (2011), we cannot say
that counsel’s performance was deficient.
Sanchez also argues that counsel provided ineffective assistance when he
declined to cross-examine news reporter Michael Trihey after Trihey testified that
Sanchez claimed to be a “triple murderer” (“Claim 15”). Sanchez reportedly told
Trihey that he did not kill anyone but nevertheless believed that he was equally
responsible because he assisted and made no effort to stop the murders. If counsel
had cross-examined Trihey further, there is not a reasonable probability of a
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different outcome because these statements supported his liability as an aider and
abetter. See Sanchez, 12 Cal. 4th at 33–36; see also Fields v. Woodford, 309 F.3d
1095, 1107–08 (9th Cir. 2002) (requiring that a petitioner “demonstrate that the
errors actually prejudiced him”) (internal citation omitted) (emphasis in original).
Sanchez argues that his attorney provided ineffective assistance during the
guilt phase by failing to investigate and present a mental state defense, including
information regarding a history of substance abuse (“Claim 6”). Counsel
interviewed two mental experts, whose reports came to similar conclusions, neither
of which was helpful to the defense. There is a reasonable argument that counsel
satisfied Strickland’s deferential standard here. Richter, 562 U.S. at 105. Counsel
cannot be faulted for not considering other possible mental state defenses when the
experts he hired did not do so. See Turner v. Calderon, 281 F.3d 851, 876 (9th Cir.
2002).
Sanchez asserts that his counsel was ineffective for failing to challenge
Hernandez’s credibility and memory by presenting his history of drug use (“Claim
7”). But Sanchez’s statements to the police and Trihey, his sale and possession of
items from the Bocanegra residence, and his desire to plead guilty demonstrate that
even if counsel had known of Hernandez’s drug use and cross-examined him about
it, it is still likely that the trial court would have convicted Sanchez and would have
found the multiple-murder special circumstance true. Strickland v. Washington,
3
466 U.S. 668, 688 (1984).
Next, Sanchez argues that counsel was ineffective for failing to submit
evidence regarding lingering doubt or to counter the prosecution’s evidence of
Sanchez’s culpability during the penalty phase (“Claim 44”). But fairminded
jurists could conclude that Sanchez’s defense counsel acted reasonably in declining
to present the lingering-doubt defense that Sanchez now says should have been
presented. The United States Supreme Court has stated that there are “countless
ways to provide effective assistance in any given case.” Strickland, 466 U.S. at
689. Jurists of reason could conclude that Sanchez’s defense counsel acted
reasonably in presenting a defense theory that accounted for Sanchez’s consistent
desire to plead guilty and accept the death penalty, which was inconsistent with a
lingering-doubt defense. See id. at 673 (stating that counsel reasonably may
“decide[] not to present and hence not to look further for evidence” on an issue).
Nor has Sanchez “demonstrate[d] that the [decision not to present a
lingering-doubt defense] actually prejudiced him” in this case. Fields, 309 F.3d at
1107–08. To demonstrate prejudice, Sanchez must show a “reasonable
probability” of a different result. See Strickland, 466 U.S. at 694. Put differently,
in circumstances where a habeas petitioner challenges a death sentence, “the
question is whether there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
4
circumstances did not warrant death.” Id. at 695. There is no “reasonable
probability” of a different result in this case where Sanchez had substantial
involvement in the murder of three people, laughed with his co-conspirators about
the murders, and told the press he was a triple murderer. The testimony Sanchez
now argues should have been introduced would have given only a slightly different
version of events: one in which Sanchez did not participate in "stabbing” the victim
Mrs. Bocanegra, but instead just bashed her head with a metal bar in order to quiet
her.
Despite Sanchez’s contentions to the contrary (“Claim 46”), counsel’s
failure to object or introduce Sanchez’s proposed evidence of remorse was not
objectively unreasonable and does not demonstrate deficient performance.
Strickland, 466 U.S. at 686–88. Attorneys need not engage in activities that would
be fruitless, much less harmful to the defense. Richter, 562 U.S. at 108. The news
articles Sanchez pointed to contain aggravating information and demonstrate that
there was little evidence of Sanchez’s remorse, other than his own statements.
Although Detective Boggs erroneously attributed an incriminating statement by
Reyes to Sanchez, Sanchez could not show prejudice. See Fields, 309 F.3d at
1107–08. Alleged juror statements suggested that Sanchez’s demeanor at trial had
a significant impact on their belief that Sanchez showed no remorse.
AFFIRMED.
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