Conrad Zapien v. Michael Martel

                    FOR PUBLICATION

        UNITED STATES COURT OF APPEALS
             FOR THE NINTH CIRCUIT


 CONRAD ZAPIEN,                                  No. 09-99023
              Petitioner-Appellant,
                                                   D.C. No.
                     v.                         2:94-cv-01455-
                                                    WDK
 RONALD DAVIS,*
             Respondent-Appellee.                ORDER AND
                                                  AMENDED
                                                   OPINION


       Appeal from the United States District Court
            for the Central District of California
     William D. Keller, Senior District Judge, Presiding

                 Argued and Submitted
       December 11, 2014—San Francisco, California

                  Filed November 9, 2015
                 Amended December 16, 2016

Before: Alex Kozinski, Johnnie B. Rawlinson and Mary H.
               Murguia, Circuit Judges.

                           Order;
                  Opinion by Judge Kozinski


 *
   Ronald Davis is substituted for his predecessor Michael Martel as
Warden of San Quentin. See Fed. R. App. P. 43(c)(2).
2                       ZAPIEN V. MARTEL

                           SUMMARY


               Habeas Corpus / Death Penalty

    The panel filed an order amending an opinion filed
November 9, 2015, and denying a petition for panel rehearing
or rehearing en banc, in a case in which the panel affirmed
the district court’s denial of California state prisoner Conrad
Zapien’s habeas corpus petition challenging his first degree
murder conviction and death sentence.

    In the amended opinion, the panel:

    •   rejected Zapien’s argument that the California
        Supreme Court unreasonably rejected his claim that
        he was denied due process when a prosecution
        investigator, who found a sealed envelope containing
        an audio tape explaining defense strategy, destroyed
        the tape.

    •   held that the California Supreme Court did not
        unreasonably reject Zapien’s arguments that his rights
        under the Confrontation Clause were violated by
        (1) the trial court’s admission of statements that
        Zapien’s sister made at a preliminary hearing and
        (2) the introduction of multi-level hearsay testimony.

    •   held that the California Supreme Court did not
        unreasonably reject Zapien’s claims of ineffective
        assistance of counsel at the guilt phase.


   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    ZAPIEN V. MARTEL                        3

   •   held that the California Supreme Court did not
       unreasonably reject Zapien’s claims of ineffective
       assistance of counsel at the sentencing phase.

   •   held that the California Supreme Court did not
       unreasonably reject Zapien’s claim that his right to an
       impartial jury was violated when the trial court failed
       to dismiss a juror who admitted to hearing a news
       report that suggested Zapien would hurt his guards if
       he were given the death penalty.


                        COUNSEL

Tracy J. Dressner (argued), La Crescenta, California, Jay L.
Lichtman (argued), Los Angeles, California for Appellant.

Joseph P. Lee (argued), Deputy Attorney General, Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Special Assistant
Attorney General, A. Scott Hayward, Deputy Attorney
General, Office of the Attorney General for the State of
California, Los Angeles, California for Appellee.
4                   ZAPIEN V. MARTEL

                         ORDER

    The opinion filed November 9, 2015, and appearing at
805 F.3d 862, is AMENDED as reflected in the attached
amended opinion. The petition for panel rehearing or
rehearing en banc is DENIED. No additional petitions for
rehearing are permitted.


                        OPINION

KOZINSKI, Circuit Judge:

    Conrad Zapien was convicted of first degree murder and
sentenced to death by the state of California. He challenges
both his conviction and sentence.

                    BACKGROUND

    In 1987, Zapien was found guilty of killing Ruby
Gonzalez in her home by shooting her four times and
stabbing her five times. Zapien was a heroin addict,
desperate for money, and Ruby was the mistress of his
sister’s husband. The prosecution’s case at trial was that
Zapien intended to rob Ruby’s home after being told by his
sister that there was money and jewelry inside. The
prosecution theorized that Ruby surprised and confronted
Zapien, who killed her and fled town the next day. Zapien
spent the months after Ruby’s death living under pseudonyms
in various Christian homes, before eventually being found
and arrested in Arizona.

   Before Zapien’s trial began, prosecutor Gary Van Camp
and his investigator Harry Heidt found a sealed envelope
                     ZAPIEN V. MARTEL                         5

bearing the name of Zapien’s trial counsel. The envelope
contained an audio tape explaining the defense’s strengths
and weaknesses. Heidt later claimed that Van Camp told him
to listen to the tape, but he destroyed it instead. Heidt
eventually revealed the incident and Zapien’s counsel moved
to have all charges dismissed. The trial court denied the
motion, finding that Heidt had not listened to the tape.

    The jury convicted Zapien of first degree murder and
found a “special circumstance” which made Zapien death
eligible—that the killing was committed during the course of
a burglary and an attempted robbery. The jury sentenced
Zapien to death.

    Zapien appealed his conviction and sentence to the
California Supreme Court, which denied his appeal in a
lengthy reasoned opinion in 1993. See People v. Zapien, 846
P.2d 704 (Cal. 1993) (in bank). In 1996, Zapien filed a
federal habeas petition that was stayed pending exhaustion of
state remedies. Zapien then filed a state habeas petition in the
California Supreme Court. In 1998, the California Supreme
Court denied all but four of Zapien’s claims on timeliness
grounds and, in the alternative, summarily denied all of his
claims on the merits. Zapien then returned to federal court.
Although he was granted an evidentiary hearing on some of
his ineffective assistance of counsel claims, the district court
ultimately denied them all.

                       DISCUSSION

   1. The Tape

     Zapien argues he was denied due process when Heidt
destroyed the defense strategy tape. The California Supreme
6                    ZAPIEN V. MARTEL

Court concluded that, though Heidt “clearly acted wrongly in
disposing of the envelope and its contents, . . . this improper
act did not deprive [Zapien] of due process of law or
otherwise deny [him] a fair trial” because there was no
“‘conscious effort to suppress exculpatory evidence.’”
Zapien, 846 P.2d at 723 (quoting California v. Trombetta,
467 U.S. 479, 488 (1984)). Zapien argues that this was an
unreasonable application of Trombetta and Arizona v.
Youngblood, 488 U.S. 51 (1988).

    However, both Youngblood and Trombetta dealt with the
destruction of potentially exculpatory evidence—not, as here,
the destruction of attorney-client work product. See
Youngblood, 488 U.S. at 57–58; Trombetta, 467 U.S. at
486–87. Zapien asserts the novel theory that destroying the
tape constituted the destruction of exculpatory evidence
because, had the tape been recovered, it could have been
tested. Such testing apparently would have revealed that the
tape had been listened to and thus that misconduct had
occurred. Revealing the alleged misconduct would have been
“exculpatory,” according to Zapien, because it would have
required the case be dismissed.

    Zapien’s tortuous chain of reasoning is not supported, let
alone “clearly established,” by Youngblood, Trombetta or any
other Supreme Court case. See 28 U.S.C. § 2254(d)(1) (a
writ of habeas corpus may not be granted unless the state
court reached a “decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”).
Zapien provides no authority for the proposition that a due
                          ZAPIEN V. MARTEL                                 7

process violation can be premised on the destruction of
information already known to the defense.1

     Zapien next argues that it was unreasonable for the
California Supreme Court to adopt the Superior Court’s
factual finding that Heidt didn’t listen to the tape. Because
Zapien is unable to explain how listening to a defense
strategy tape constitutes a due process violation, he likely
wouldn’t have a viable claim even if the state court’s factual
determination had been unreasonable. See Wilson v.
Corcoran, 562 U.S. 1, 5–6 (2010) (holding that a state court’s
unreasonable factual determination is only relevant in a
federal habeas proceeding to the extent it results in a decision
that violates federal law). In any event, our review of a state
appellate court’s affirmance of a state trial court’s credibility
determination “is doubly deferential.” Briggs v. Grounds,
682 F.3d 1165, 1170 (9th Cir. 2012). “[U]nless the state
appellate court was objectively unreasonable in concluding
that a trial court’s credibility determination was supported by
[the record], we must uphold it.” Id. Here, even if
“[r]easonable minds reviewing the record might disagree” as
to the truthfulness of Heidt’s testimony, “that does not suffice
to supersede the trial court’s credibility determination.” Rice
v. Collins, 546 U.S. 333, 341–42 (2006).




  1
     Zapien’s claim is more readily cognizable as a violation of his right
to counsel under the Sixth Amendment, see United States v. Danielson,
325 F.3d 1054, 1070–71 (9th Cir. 2003), though, again, such a claim has
not been clearly established by the Supreme Court. In any event, Zapien
failed to bring this claim, either before us or in any prior state or federal
proceeding.
8                        ZAPIEN V. MARTEL

        2. Confrontation Clause

    Zapien next argues that his rights under the Confrontation
Clause were violated when the trial court admitted various
statements that his sister Inez—who refused to testify at
trial—made at a preliminary hearing.2 Under the then-
governing standards of Ohio v. Roberts, 448 U.S. 56 (1980),
abrogated by Crawford v. Washington, 541 U.S. 36 (2004),
the “adequate opportunity to cross-examine [a] witness” at a
preliminary hearing typically provides “sufficient indicia of
reliability” for statements from that hearing to be introduced
at trial if the witness is unavailable. Id. at 73 (alteration
omitted) (internal quotation marks omitted). Nonetheless,
Zapien argues that the state court unreasonably applied
Roberts because the government knew Inez had told lies
during other parts of her preliminary hearing testimony
(though not in the portions read to the jury). Even assuming
Inez had in fact lied, Zapien fails to show that the California
Supreme Court’s decision was an unreasonable application of
Roberts. Preliminary hearing testimony falls within the
heartland of those statements deemed reliable under Roberts,
see 448 U.S. at 73 (noting that “guarantees of
trustworthiness” are found “in the accouterments of the
preliminary hearing itself”), and Zapien can point to no case
in which admitting preliminary hearing testimony has been



    2
     The trial court also allowed into evidence certain statements made by
Inez during a police interview. The California Supreme Court found that
Zapien was procedurally barred from raising the argument that admission
of these interrogation statements violated his confrontation rights, because
he did not contemporaneously object to their admission at trial. That
dismissal on a procedural ground constitutes an independent and adequate
basis for dismissing the claim, which we are barred from reviewing. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
                      ZAPIEN V. MARTEL                         9

held to violate the Confrontation Clause solely because other
testimony by the absent witness is untrue.

     Zapien claims that his confrontation rights were also
violated by the introduction at trial of multi-level hearsay
testimony by Mariella Perez, a friend of Inez’s daughter
Juanita. Perez testified that Juanita told her that Inez’s other
daughter, “Little Inez,” had told Juanita that Zapien arrived
at Inez’s house on the morning of the murder with blood on
his shirt. An investigator also played a recording of Perez
stating that Juanita told her that Little Inez saw Inez give
Zapien her car keys. Both Juanita and Little Inez testified at
trial: Little Inez denied seeing Zapien that day or talking to
Juanita, and Juanita likewise denied the conversation. The
California Supreme Court reasonably—indeed correctly—
applied the holding in California v. Green that “the
Confrontation Clause is not violated by admitting a
declarant’s out-of-court statements, as long as the declarant
is testifying as a witness and subject to full and effective
cross-examination.” 399 U.S. 149, 158 (1970). Zapien
argues here, as he did before the California Supreme Court,
that Green is inapplicable in the context of multiple hearsay.
But he cites no authority for that proposition, and the
California Supreme Court reasonably rejected what it
considered to be an “arbitrary rule based solely upon the
number of levels of hearsay.” Zapien, 846 P.2d at 717.

    Zapien also argues that the admission of Perez’s
statements was such an egregious violation of California
evidentiary law that it constituted a due process violation. It
is not at all clear that there was a violation of California law,
let alone one so fundamentally unfair that it amounted to a
due process violation. In any event, we’ve held that, “[u]nder
AEDPA, even clearly erroneous admissions of evidence that
10                        ZAPIEN V. MARTEL

render a trial fundamentally unfair may not permit the grant
of federal habeas corpus relief if not forbidden by clearly
established [Supreme Court precedent].”          Holley v.
Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (internal
quotation marks omitted). Because there is no Supreme
Court case establishing the fundamental unfairness of
admitting multiple hearsay testimony, Holley prohibits us
from finding in Zapien’s favor on this due process claim.

     3. Ineffective Assistance of Counsel at the Guilt
        Phase

    Zapien brings several ineffective assistance of counsel
claims, all of which were summarily denied by the California
Supreme Court.3 When confronted with a state court’s
summary denial, we “must determine what arguments or
theories . . . could have supported . . . the state court’s
decision; and then . . . ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102
(2011). Our review of Zapien’s ineffective assistance claims
is doubly deferential: “We take a highly deferential look at
counsel’s performance through the deferential lens of



  3
    Zapien’s ineffective assistance claims were first presented to the state
courts in a habeas petition over three years after the denial of Zapien’s
direct appeal. In addition to summarily denying these claims on the
merits, the California Supreme Court dismissed them on timeliness
grounds. They should therefore be procedurally defaulted. However, the
state does not raise procedural default before us, nor did it do so before the
district court. Although we may raise the issue of procedural default sua
sponte under exceptional circumstances, see Day v. McDonough, 547 U.S.
198, 209 (2006), we decline to do so here.
                     ZAPIEN V. MARTEL                        11

§ 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011)
(internal quotation marks and citation omitted).

     Zapien first argues that his trial counsel was ineffective
for not vigorously impeaching the testimony of Ruby’s
daughter Marci. Thirteen-year-old Marci was an eyewitness
to the murder and testified that during the attack she heard her
mother say, “Chato, leave me alone. I will give you the
money and the jewelry.” “Chato” was Zapien’s brother—
who resembled Zapien—and was in prison at the time of the
killing. Marci’s testimony was harmful to Zapien both
because it showed that he looked like the assailant and
because it suggested he entered the home with an intent to
commit a robbery, the “special circumstance” that made
Zapien death eligible. Zapien argues that his trial counsel
should have impeached Marci with statements she made
during Zapien’s preliminary hearing—and statements made
to neighbors and the police—where she either failed to
mention “the money and the jewelry” or implied that Ruby
was offering the intruder “the money and the jewelry” rather
than responding to a demand. Zapien also argues that trial
counsel should have attempted to undermine Marci’s account
with testimony by a child memory expert, who would
apparently have explained that, since Marci had just awoken
from a violent dream, her memories of the attack may have
been faulty.

    However, a fairminded jurist could conclude that counsel
made a strategic decision in how he approached Marci’s
impeachment. Even if counsel had tried to impeach Marci in
the manner Zapien now suggests, a jury would likely still
have found her testimony credible. Marci’s physical
description of the attacker wearing a plaid shirt and a vest
was corroborated by the discovery of an abandoned plaid
12                   ZAPIEN V. MARTEL

shirt and vest covered in Ruby’s blood. Marci was by all
accounts highly sympathetic on the stand. And her memory
of the event was vivid and prolonged—involving not merely
witnessing the attack, but also hitting the assailant with a
broom and trying to protect her sisters. Aggressively
attempting to impeach Marci’s testimony may therefore have
alienated the jury, without doing much to undermine her
credibility. Zapien’s trial counsel took a different tack. He
stressed that Marci’s testimony, even if true, failed to
establish beyond a reasonable doubt that Zapien was the
assailant. Under the circumstances, we cannot conclude that
all fairminded jurists would say such a strategy rendered
counsel’s assistance ineffective. See Harrington, 562 U.S. at
102; Strickland v. Washington, 466 U.S. 668, 681, 688
(1984).

    Zapien next claims that trial counsel should have
introduced the testimony of Ruby’s two other children, Joni
and Jessica, who also witnessed the murder. Joni told the
police that the attacker was wearing a dark ski mask, and both
Joni and Jessica said they heard a car speeding away after the
attack. Zapien claims that the ski mask testimony would have
undermined Marci’s account that Ruby thought the assailant
was Chato, and the car sound would have undermined
Mariella Perez’s story that Zapien needed a car from Inez
after the murder.

    However, at the time of the murder, Joni and Jessica were
eight and six respectively, much younger than the thirteen-
year-old Marci. Not only was Marci’s story more precise and
fleshed out than those of her sisters, it was also corroborated
by the discovery of the plaid shirt and vest. Because of their
youth, Joni and Jessica may have been unpredictable on the
stand, and putting them through the ordeal of testifying could
                     ZAPIEN V. MARTEL                       13

have alienated the jury. There was only a small, perhaps
infinitesimal, possibility that a jury would have believed them
rather than Marci. On balance, the risks associated with
calling them to testify outweighed the potential benefits.
Accordingly, it is reasonable to conclude that counsel wasn’t
ineffective in failing to call Joni and Jessica as witnesses.

    Zapien next argues that counsel should have moved to
exclude the testimony of Lena Chacon and Michael Jimenez,
two witnesses Zapien met at a Christian home shortly after
the murder. Chacon testified at trial that Zapien told her that
he shot someone during the robbery of a store and was using
a pseudonym because he was wanted for murder in
California. Jimenez testified that Zapien had told him about
two separate shootings—one in which he shot someone, who
Jimenez thought was a woman, and another during the
robbery of a store. Zapien argues that trial counsel was
ineffective for failing to move in limine to exclude Chacon’s
and Jimenez’s testimony as irrelevant to Ruby’s murder.
However, a review of the record reveals little basis upon
which such a motion could plausibly have been successful.
While both witnesses made vague and confusing statements
during the preliminary hearing, their testimony clearly had
the potential of being highly probative. Competent counsel
could reasonably have concluded that moving to exclude their
testimony on the grounds Zapien now suggests would have
seemed frivolous.

    Zapien also criticizes counsel for eliciting testimony from
Chacon at trial regarding the apparent store-robbery killing.
But, review of the cross-examination transcript reveals that
counsel acted reasonably. Chacon mentioned on the stand
that Zapien had admitted shooting someone, but didn’t
specify who the victim was. At that point, counsel made the
14                   ZAPIEN V. MARTEL

strategic decision to ask about the possibility of a second
shooting in order to create doubt as to whether Zapien was
referring to Ruby’s killing. Under our doubly deferential
review, we cannot say the California Supreme Court erred in
concluding that counsel’s representation was competent.

    Zapien also claims that counsel was ineffective by failing
to object to several instances of inadmissible and prejudicial
hearsay testimony. Zapien claims counsel should have
objected on Confrontation Clause grounds to Sergeant
Stevens’s testimony about what Inez told him. But counsel
had cross-examined Inez at a preliminary hearing, and the
California Supreme Court found that the same interest and
motive existed in that cross-examination as at trial. The
California Supreme Court’s determination that this testimony
didn’t violate the Confrontation Clause wasn’t unreasonable.
See Ohio v. Roberts, 448 U.S. 56, 72–73 (1980), abrogated
by Crawford v. Washington, 541 U.S. 36 (2004). The other
hearsay statements Zapien complains about were cumulative
of the evidence offered at trial and thus not prejudicial, even
assuming that counsel should have objected to them.

     Finally, Zapien argues that counsel was ineffective for
failing to introduce evidence suggesting that Zapien had a
broken hand at the time of the murder and was therefore
likely incapable of killing Ruby. Zapien argued in his state
habeas petition that trial counsel should have introduced
testimony by Dr. James Day, a radiologist who allegedly
treated Zapien for a hand injury twelve days before Ruby’s
murder. According to Zapien, Day’s testimony would have
shown that Zapien was injured, had a cumbersome cast
placed on his right hand and was likely physically incapable
of making the deep stab wounds found on Ruby’s body. But
even if counsel was in possession of medical records showing
                     ZAPIEN V. MARTEL                       15

that Zapien was treated for a fracture, a fairminded jurist
could conclude that counsel’s failure to pursue this line of
defense did not amount to ineffective assistance. A
fairminded jurist could also conclude that this single piece of
medical evidence would not have created a reasonable
likelihood of a different outcome at trial, given the other
evidence of Zapien’s guilt and, most significantly, the fact
that the hand injury (as Zapien concedes) would not have
made the attack impossible.

   4. Ineffective Assistance of Counsel at the Sentencing
      Phase

    Zapien argues that counsel was ineffective for failing to
introduce various pieces of mitigating evidence at the
sentencing phase. Zapien first claims that counsel should
have introduced further evidence regarding his traumatic
upbringing, which would have revealed that Zapien’s father
was a violent alcoholic who brutally beat Zapien’s mother in
front of the children and abandoned the family when Zapien
was five. Zapien’s father later returned and carried on a
thirteen-year incestuous relationship with Zapien’s sister that
ended when Zapien’s father shot her to death before killing
himself.

    Meanwhile, Zapien’s mother worked as a prostitute and
a “coyote” smuggling undocumented immigrants across the
Mexican border. Two men with whom she was involved
impregnated two of Zapien’s sisters. Zapien’s mother also
carried a gun and drank at local bars, got men drunk and stole
their wallets, and neglected her children, who grew up on the
streets malnourished and hungry. She frequently beat Zapien
and his siblings.
16                   ZAPIEN V. MARTEL

    In addition, evidence in the habeas record indicates that
Zapien’s grandmother, with whom Zapien lived, also worked
as a coyote. She routinely abused Zapien, whipping him with
a rubber hose, often for acts committed by a sibling. She
forced Zapien and his siblings to perform manual labor in the
fields, and threw rocks at them when they took a break from
working. On one occasion, she killed Zapien’s pet rabbit and
served it to him for dinner, which Zapien learned only after
he had eaten the meal.

    Zapien’s uncle, who also lived in the grandmother’s
house, was a major drug dealer with multiple drug
convictions; he used and sold heroin, and made drugs
available to Zapien from a young age. Zapien was sentenced
to juvenile hall for drug- and alcohol-related offenses when
he was fifteen years old. He was a heroin addict by the age
of twenty.

    In addition to his drug addiction, Zapien had a history of
blackouts and was diagnosed with syphilis. He had also been
exposed to pesticides while working as a tree sprayer, and
suffered numerous blows to the head at a young age.

    Zapien contends that there is a reasonable probability that
this sordid background evidence would have moved at least
one juror to spare Zapien’s life, and that it was unreasonable
for the California Supreme Court to conclude otherwise,
particularly given that Zapien’s jury—without having heard
this evidence—deliberated for three days before returning a
death verdict.

    The importance and relevance of social history and
mental health at the sentencing phase of a capital case is
clearly established by the United States Supreme Court, and
                     ZAPIEN V. MARTEL                      17

was clearly established both at the time of defendant’s
penalty phase in 1987 and at the time the California Supreme
Court denied Zapien’s ineffective assistance of counsel
claims in 1998. See California v. Brown, 479 U.S. 538, 545
(1987) (O’Connor, J., concurring); Eddings v. Oklahoma,
455 U.S. 104, 114–15 (1982); Lockett v. Ohio, 438 U.S. 586,
604–05 (1978) (plurality opinion); Woodson v. North
Carolina, 428 U.S. 280, 303–05 (1976) (plurality opinion).
However, the Supreme Court has clarified that Strickland
does not require penalty phase counsel to “investigate every
conceivable line of mitigating evidence.” Wiggins v. Smith,
539 U.S. 510, 533 (2003).

    Here, defense counsel sought out—and introduced—a
considerable amount of mitigating evidence. For example,
counsel called a cultural anthropologist who testified as an
expert about the “physical, social, [and] economic isolation,”
in the La Colonia community in Oxnard. Counsel also
introduced testimony from a medical doctor about the effects
of heroin addiction, and solicited character testimony from
Zapien’s friends and family. Through this evidence, defense
counsel introduced a picture of Zapien as a kind and
affectionate child who was raised in an overcrowded, drug-
infested and impoverished “slum” without parental
supervision or a male role model. Counsel also appealed to
the notion of lingering doubt by introducing information
regarding the prosecution’s possible misconduct, which
called into question the reliability of the prosecution’s
evidence. “[C]ounsel’s decision not to mount an all-out
investigation into petitioner’s background in search of
mitigating circumstances was supported by reasonable
professional judgment.” Burger v. Kemp, 483 U.S. 776, 794
(1987); cf. Porter v. McCollum, 558 U.S. 30, 39–40 (2009)
(per curiam) (finding deficient performance during the
18                   ZAPIEN V. MARTEL

penalty phase where “counsel did not even take the first step
of interviewing witnesses or requesting records” and “thus
failed to uncover and present any evidence of [petitioner’s]
mental health or mental impairment”); Wiggins, 539 U.S. at
533 (finding deficient performance during the penalty phase
where “counsel’s investigation of petitioner’s background
was limited to [two court-commissioned] records,” and
holding that “strategic choices made after less than complete
investigation are reasonable only to the extent that reasonable
professional judgments support the limitations on
investigation” (internal quotation marks and citation
omitted)).

    Furthermore, as the district court correctly found,
mitigating evidence of drug dependency and an abusive
family history “can be a two-edged sword that [a jury] might
find to show future dangerousness” or use to conclude that a
defendant is “simply beyond rehabilitation.” Pinholster,
563 U.S. at 201(internal quotation marks omitted) (quoting
Atkins v. Virginia, 536 U.S. 304, 321 (2002)). Given that
“strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable,” Strickland, 466 U.S. at 690, the California
Supreme Court was not unreasonable in denying this claim.

    Zapien also argues that trial counsel should have
introduced evidence of Zapien’s psychiatric and neurological
problems. However, it is not clear that Zapien actually
suffers from any such problems. All that was presented for
state habeas review was evidence that Zapien’s family
members suffered from mental illness, and that he was
exposed to various things—like drugs, pesticides and blows
to the head—that could have led to him developing a brain
injury. The closest thing to an actual diagnosis of a mental
                     ZAPIEN V. MARTEL                        19

disorder is a doctor’s testimony during Zapien’s federal
evidentiary hearing that he may have suffered from PTSD.
However, that evidence was never presented in Zapien’s state
petition, and we are not permitted to consider it here.
Pinholster, 563 U.S. at 181–82, 186. And, even if it were
before us, there is no indication that counsel knew or should
have known that Zapien suffered from such a disorder.
Failure to introduce evidence of PTSD, therefore, didn’t
amount to ineffective assistance of counsel.

    Zapien next argues that counsel was ineffective for failing
to properly prepare two experts at sentencing. Both experts
gave generic testimony—one about the socioeconomic profile
of Zapien’s neighborhood and the other about the effects of
heroin abuse—but neither expert met with Zapien or tailored
his testimony to Zapien’s particular circumstances. Zapien
can point to no case holding that failure to have an expert
meet with a defendant constitutes ineffective assistance. And,
in any event, if defense counsel had presented experts who
“personalized” their testimony to Zapien, reasonable jurists
could debate whether such expert testimony would have
opened the door to evidence (or more evidence) regarding
Zapien’s heroin addiction as well as whether Zapien suffered
from anti-social personality disorder—topics that may not
have inured to Zapien’s benefit in the eyes of the jury.

     Finally, Zapien argues that counsel was ineffective
because he didn’t adequately rebut the prosecution’s use of
Zapien’s prior manslaughter conviction as an aggravating
factor. According to Zapien, counsel failed to explain to the
jury that the victim in that crime had attacked and raped
Zapien’s girlfriend a few days before the killing. Instead,
trial counsel sought to obscure the particular facts of Zapien’s
20                   ZAPIEN V. MARTEL

prior crime and emphasize the lower degree of culpability
required for a manslaughter conviction.

    In Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam),
the Supreme Court reversed this court’s grant of habeas relief
based on the purported prejudicial ineffective assistance of
Belmontes’s trial counsel and reinstated the petitioner’s death
sentence. Belmontes was convicted of murdering a woman
during a burglary. Id. at 15. At sentencing, Belmontes’s
counsel presented nine witnesses who testified about
Belmontes’s difficult childhood. Id. at 19. Nevertheless,
Belmontes argued that counsel should have offered more
mitigating evidence. Id. at 16. However, Belmontes had a
prior conviction for accessory after the fact to voluntary
manslaughter. Id. at 17. There was substantial evidence that
Belmontes had, in fact, committed murder but pleaded guilty
to a lesser offense, and counsel built his mitigation strategy
around the “overriding need” to exclude the details of
Belmontes’s criminal history. Id. at 18. The Supreme Court
held that trial counsel had reasonably tailored his mitigation
case to avoid opening the door to the aggravating evidence of
Belmontes’s manslaughter conviction, which would have
become admissible had the unoffered evidence been received.
See id. at 25–26. As the Supreme Court explained, “[a]
heavyhanded case to portray Belmontes in a positive light . . .
would have invited the strongest possible evidence in
rebuttal—the evidence that Belmontes was responsible for
not one but two murders.” Id. at 25.

   A fairminded jurist could conclude that counsel faced a
similar dilemma regarding the details of Zapien’s prior
conviction. Zapien’s jury knew that he had previously been
convicted for stabbing a man to death with a machete. And,
while Zapien pled to voluntary manslaughter, there was
                     ZAPIEN V. MARTEL                        21

evidence that the killing was actually premeditated—evidence
that would likely have been revealed to the jury had counsel
elaborated on the details of the attack. Accordingly, we must
conclude that the California Supreme Court could have
reasonably determined that Zapien failed to show that
counsel’s representation was constitutionally inadequate, or
that he suffered prejudice from the lack of additional
mitigating evidence.

   5. Juror Prejudice

     Zapien’s final argument is that his right to an impartial
jury was violated when the trial court failed to dismiss a juror
who admitted to hearing a news report that suggested Zapien
would hurt his guards if he were given the death penalty. The
trial court held a hearing in which the judge questioned the
juror, and eventually ruled that he was capable of being
impartial. The California Supreme Court rejected Zapien’s
argument that the trial court erred in this credibility
determination, and concluded that the juror’s knowledge of
the news report was harmless.

    Zapien argues that the California Supreme Court’s
decision was an unreasonable application of Mattox v. United
States, 146 U.S. 140 (1892), which established a rebuttable
presumption of prejudice when a juror is exposed to
information garnered outside of the trial. However, in
substance, the California Supreme Court applied the Mattox
presumption when it held that the trial court properly
determined the juror could be impartial. Once again, our
posture is doubly deferential: Zapien asks us to hold that the
California Supreme Court was unreasonable in failing to find
that the trial court made an unreasonable credibility
determination about whether the juror was prejudiced.
22                  ZAPIEN V. MARTEL

Zapien has no non-speculative basis for that conclusion.
Instead, he effectively advocates for a per se rule in which
exposure to any out-of-trial information automatically
requires juror dismissal. Such an approach is plainly
inconsistent with Mattox and its progeny. As with Zapien’s
other claims, the California Supreme Court’s decision was at
least reasonable.

     AFFIRMED.