Francis G. Hernandez, Petitioner-Appellant,
Kevin Chappell, Warden, California State Prison at San Quentin, Respondent-Appellee.
and Submitted September 24, 2018 Pasadena, California
from the United States District Court D.C. No.
2:90-cv-04638-RSWL for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Casadio (argued) and Margo A. Rocconi, Deputy Federal Public
Defenders; Hilary Potashner, Federal Public Defender; Office
of the Federal Public Defender, Los Angeles, California; for
A. Lieberman (argued) and Xiomara Costello, Deputy Attorneys
General; Jason Tran, Supervising Deputy Attorney General;
Lance E. Winters, Senior Assistant Attorney General; Gerald
A. Engler, Chief Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee.
S. Scheidegger and Kymberlee C. Stapleton, Criminal Justice
Legal Foundation, Sacramento, California, for Amicus Curiae
Criminal Justice Legal Foundation.
Before: Kim McLane Wardlaw, Milan D. Smith, Jr., and
Jacqueline H. Nguyen, Circuit Judges.
panel filed an order withdrawing the prior opinion in this
case, and filed a new opinion, which affirmed the district
court's denial of a writ of habeas corpus as to Francis
Hernandez's guilt-phase claims relating to his California
state convictions for first-degree murder.
panel addressed two claims of ineffective assistance of
counsel. The panel held that trial counsel was
constitutionally deficient by failing to present a diminished
capacity defense based on mental illness, but that Hernandez
did not suffer any prejudice because the evidence of his
specific intent to rape and kill both victims was
overwhelming when compared to the relatively weak diminished
capacity evidence that counsel could have presented, but
failed to present. The panel held that trial counsel was not
ineffective for failing to subpoena Laura Kostiuk as a
prior opinion in this case, found at Hernandez v.
Chappell, 878 F.3d 843 (9th Cir. 2017), is hereby
withdrawn. A new opinion is being filed concurrently with
this order. Further petitions for rehearing or rehearing en
banc may be filed.
NGUYEN, CIRCUIT JUDGE.
winter of 1981, Francis Hernandez brutally raped, sodomized,
and strangled to death two women, Edna Bristol and Kathy
Ryan. Hernandez committed the crimes five days apart and in a
strikingly similar manner, including strangling the victims,
mutilating their bodies, and leaving them near schools in
Long Beach, California. After his arrest, Hernandez
confessed, walking the police through every detail of his
crimes and his thoughts and motivations as he committed them.
In April 1983, a jury convicted Hernandez of two counts each
of first-degree murder, forcible rape, and forcible sodomy,
and sentenced him to death. The California Supreme Court
denied his state habeas petitions.
filed a federal habeas petition alleging, among other claims,
ineffective assistance of trial counsel. After extensive
litigation, including a six-year evidentiary hearing, the
district court granted relief in part, vacating the death
sentence. The district court denied guilt-phase relief.
now appeals the district court's denial of relief as to
the guilt-phase claims relating to his first-degree murder
convictions. We find that trial counsel's
performance was deficient in one respect-he should have
investigated and considered presenting a diminished capacity
defense based on Hernandez's mental condition. We hold,
however, that Hernandez did not suffer any prejudice as a
result of counsel's deficient performance. Because the
evidence of his specific intent to rape and kill
both victims was overwhelming when compared to the relatively
weak diminished capacity evidence that counsel could have
presented, but failed to present, there was no reasonable
probability of a different outcome in this case. We therefore
The Murders of Bristol and Ryan
January 1981, Edna Bristol's nude body was found near a
middle school in Long Beach, California. Five days later,
Kathy Ryan's nude body was found near a high school in
the same city. According to a pathologist, Bristol and Ryan
both died of asphyxiation due to strangulation or
suffocation, and their bodies suffered "extremely
similar and extremely rare" trauma to the anal and
vaginal areas, suggesting a large object-consistent with a
baseball bat- had been inserted. Their bodies were mutilated,
with bite marks on their breasts, and their pubic hair was
singed. Bristol had ligature marks around her wrists and
ankles. Ryan's nose was fractured, and a tic-tac-toe
pattern had been carved into her abdomen post-mortem.
February 4, 1981, Hernandez was arrested for the crimes.
Hernandez's Detailed Confession
gave a detailed, taped confession. He chillingly recounted
not only his horrific acts, but also the thoughts and
feelings that went through his mind as he committed the
crimes. Hernandez explained that on the night of
Bristol's death, he "was in a weird mood" and
decided to "find . . . a homosexual to beat up on."
He found a male victim, beat him up, and robbed him "for
his last ten dollars." When he was done, Hernandez was
still feeling "frustrated." It was then that he
picked up Bristol hitchhiking.
became angry when Bristol started telling him "about all
her problems" and ordered her out of his van. When she
refused, he began to hit her and physically drag her out.
Bristol then pleaded that "she'd do anything,"
and after he "thought about that for a minute," he
decided to drive to another location. Once parked, he ordered
Bristol to "get in the back" of the van, where
there was no exit, and "to take off her clothes."
Hernandez explained that he had intended to "let her
out" or "let her go" after they "had
sexual intercourse," but he went "bezerk"
because she was kicking and screaming and damaging his van.
He taped her ankles, wrists, and mouth "around the
hair," and then, as he described it, "I proceeded
to fuck her in her ass." He pushed her body against the
hot engine cowling of his van to burn her nipple because he
was "mad at her." He then pushed "some piece
of material" "over [Bristol's] face" while
holding her by the throat until she stopped moving. He threw
her body out of the van onto the lawn of a middle school in
Long Beach, California. Thinking Bristol was still alive,
Hernandez flicked matches onto her pubic area and another
match "on her nipple" to "hurt her" for
kicking him "in the nuts" and kicking a hole in his
confession also walked the police through the night of
Ryan's death. He had gone to play pool with friends,
including Ryan. After the group disbanded, he went over to
Ryan's house and invited her into his van. When he tried
to kiss her, "she sort of resisted." She also
refused his order to take off her clothes but then said,
"oh, okay," when he got angry and "pushed her
arms back." At one point, he "thought she wanted it
in her ass," and sodomized her. Like Bristol, Ryan was
screaming and kicking and, in response, he "grabbed her,
[held] onto her, and . . . then she gargled-she . . .
sputtered up." He thought that he "was choking her
too hard" and "let go." Hernandez told her
"to mellow out" but when she started screaming
again, he grabbed her throat with one hand and covered her
mouth with the other hand. Because "she started
struggling really bad," he realized he "must have
used too much pressure, but then she stopped
struggling." He burned Ryan's pubic hair with a
lighter, and decided to cut her stomach and nipple "to
make the two bodies look different from one another so that
the police could not link the cases together." Hernandez
took Ryan's body to the high school "[b]ecause it
was his understanding . . . that police sometimes think
criminals return to the scene of the crime, and they might
have been there waiting for him, had he . . . gone back to
the first location" where he left Bristol's body.
Trial and Subsequent History
trial, Hernandez's counsel attempted to present a
diminished capacity defense based solely on voluntary
intoxication. Trial counsel argued that Hernandez's heavy
drinking prevented him from forming the specific intent
necessary for first-degree murder. Counsel tried to persuade
the jury that Hernandez's intoxication caused Hernandez
to believe that the encounters with Bristol and Ryan were
consensual, and that he did not intend to kill them.
jury was unconvinced and convicted Hernandez of two counts of
first-degree murder, two counts of forcible rape, and two
counts of forcible sodomy, and found true special
circumstances: that each murder occurred during the
commission of rape and sodomy, and that he committed more
than one murder. People v. Hernandez, 47 Cal.3d 315,
327 (1988). The jury returned a death sentence as to each