Zapien v. Davis

849 F.3d 787, 2015 WL 12843233
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 9, 2015
DocketNo. 09-99023
StatusPublished
Cited by17 cases

This text of 849 F.3d 787 (Zapien v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zapien v. Davis, 849 F.3d 787, 2015 WL 12843233 (9th Cir. 2015).

Opinion

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, [792]*792who 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 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, 4 Cal.4th 929, 17 Cal.Rptr.2d 122, 846 P.2d 704 (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 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, 17 Cal.Rptr.2d 122, 846 P.2d at 723 (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)). Zapien argues that this was an unreasonable application of Trombetta and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

However, both Youngblood and Trom-betta 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, 109 S.Ct. 333; Trombetta, 467 U.S. at 486-87, 104 S.Ct. 2528. 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 Za-pien, 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 ap[793]*793plication 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 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, 131 S.Ct. 13, 178 L.Ed.2d 276 (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). “[Ujnless 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 “[reasonable 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, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).

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, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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, 100 S.Ct. 2531 (alteration omitted) (internal quotation marks omitted). Nonetheless, Zapien argues that the state court unreasonably applied Roberts

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Cite This Page — Counsel Stack

Bluebook (online)
849 F.3d 787, 2015 WL 12843233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zapien-v-davis-ca9-2015.