Gregory Javier Ramirez v. V M Almager

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Audrey B. Collins. The court approves and adopts the Magistrate Judge's Report and Recommendation with the correction. It is Ordered that Judgment be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 R&R) (sp)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on February 8, 2008, accompanied by an attached Memorandum ("Pet. Mem."). August 8, 2008. Respondent filed an Answer on PROCEEDINGS GREGORY JAVIER RAMIREZ, ) NO. CV 08-896-ABC(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) V.M. ALMAGER, Warden, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) _________________________________) This Report and Recommendation is submitted to the Honorable Audrey B. Collins, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

On August 27, 2008, Petitioner filed a Traverse and

"Petitioner's Request to Conduct Discovery."

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BACKGROUND

On December 12, 2003, Petitioner drove Jose Chavez to an intersection where Chavez exited Petitioner's car and fired shots at the driver of another car, Orlando Ortiz, and Ortiz' passenger, Refugio Perez. Ortiz was wounded but survived. Perez returned fire

and shot Chavez dead.

A jury found Petitioner guilty of conspiracy to commit murder in violation of California Penal Code section 182(a)(1) and the willful, deliberate and premeditated attempted murder of Orlando Ortiz in violation of California Penal Code sections 187(a) and 664 (Reporter's Transcript ["R.T."] 3009-10); Clerk's Transcript ["C.T."] 165-66). The jury found true the allegations that a principal personally and intentionally had discharged a firearm in the commission of the attempted murder of Ortiz within the meaning of California Penal Code section 12022.53(c) and 12022.53(e)(1) (R.T. 3010; C.T. 166), and that a principal personally and intentionally had discharged a firearm causing great bodily injury to Orlando Ortiz within the meaning of California Penal Code sections 12022.53(d) and 12022.53(e)(1) (R.T. 3010; C.T. 166). The jury found Petitioner not guilty of the The jury found not true

attempted murder of Refugio Perez (C.T. 167).

the allegations that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(1) (R.T. 3010; C.T. 165-66). Petitioner received a sentence of twenty-five

years to life (R.T. 3032; C.T. 178-81). /// 2

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The Court of Appeal affirmed the judgment (Respondent's Lodgment D; see also People v. Ramirez, 2005 WL 2365217 (Cal. Ct. App. Sept. 27, 2005). The California Supreme Court denied Petitioner's

petition for review summarily (Respondent's Lodgments E, F).

Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied on December 21, 2005 with citations (Respondent's Lodgments G, H). Petitioner then filed a

habeas corpus petition in this Court, Ramirez v. Evans, CV 07-576-ABC (E), which the Court denied and dismissed without prejudice for failure to exhaust available state remedies. Petitioner filed another

habeas corpus petition in the California Supreme Court on July 11, 2007, which that court denied on January 16, 2008 with citations (Respondent's Lodgments I, J).

SUMMARY OF TRIAL EVIDENCE

The following factual summary is taken from the opinion of the California Court of Appeal in People v. Ramirez, 2005 WL 2365217 (Cal. Ct. App. Sept. 27, 2005). See Galvan v. Alaska Dep't of Corrections,

397 F.3d 1198, 1199 & n.1 (9th Cir. 2005) (taking factual summary from state appellate decision).

1.

Prosecution Evidence

A.

Background

Orlando [Ortiz] was the prosecution's chief witness. 3

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He had been appellant's friend for years, and did not want to testify against him. He lived with his mother,

girlfriend and four-year-old son in the neighborhood of the Watts Varrio Grape street gang. He testified that his

friends and older brothers were in the gang, but he did not belong to it himself. His brother "Crow" had been killed.

His brothers "Lefty" and "Canejo" (sometimes called "Cujo") were incarcerated. Orlando, Canejo, and appellant used to Three of Orlando's

"hang out" at a house on Holmes Avenue.

friends who used to join them there, "Spanky," "Sneaky," and Eloy Sanchez (Eloy), were killed shortly before Orlando was shot.

Chavez, who was sometimes called "Payaso," also belonged to the gang, but was not Orlando's friend. He hung

out and sold drugs at another location, Grape Street. Appellant, who was sometimes called "Bandit," frequented the Grape Street location as well as the Holmes Street location. Orlando testified that he did not know if appellant belonged to the gang. However, appellant admitted to the police that

he was a member of the Watts Varrio Grape street gang, and the prosecution's gang expert testified that both Orlando and appellant belonged to the gang.

Before and after Chavez shot Orlando, Orlando made statements to the police which incriminated both Chavez and appellant. At the trial, Orlando testified that Chavez was

guilty, appellant was innocent, the police were lying or 4

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confused, and he did not recall what he told them about appellant. He also said he did not want to testify because He denied

it was Chavez who shot him, and Chavez was dead. that he feared being labeled a "snitch."

He attributed his

memory problems to stress medication, surgery, and his injuries.

In addition to Orlando's statements to the police and testimony at trial, the prosecution's case included a confession from appellant and other evidence.

B.

Events Prior to the Shooting of Orlando

Sometime in May 2003, Chavez came to Orlando's house, looking for Orlando's brother Canejo. under his shirt. Chavez had a handgun

He told Orlando he had just used the gun He asked Orlando They

to shoot two men in a drive-by shooting. to hide the gun. stopped speaking. Orlando refused.

Chavez left.

In October 2003, appellant told Orlando that Chavez had asked him to pick up Orlando and drive Orlando to a place where Chavez would kill him. Orlando went to Chavez and Chavez denied it.

asked him if he wanted to kill him.

Appellant later told Orlando that he should not have confronted Chavez, as Chavez would know that appellant warned Orlando about Chavez's intention.

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Fearing for his life, Orlando told Detective Pantoja in October 2003 about Chavez's participation in the drive-by shooting and request that he hide the gun. Orlando stopped

talking to appellant, and briefly lived somewhere else.

On December 11, 2003, while Orlando was at home with his mother and son, a man came into his yard and cocked a large weapon. Orlando closed the door and dialed 911. He

also called his best friend, Eloy, to tell him what had happened.

Orlando also testified that at some other point, while he was in appellant's car, he asked appellant for the identity of the person who came to his house with a gun. Appellant became agitated, and Orlando left the car. At the

trial, he said the conversation in the car occurred, but the police were confused about when it occurred.

On December 12, 2003, Orlando was at the Holmes Street house with Eloy, Refugio (also called "Mono"), Chavez, and another man, "Boxer." They were gathered there because it Appellant was not present. Other

was "the day of Sneaky's wake."

Chavez pulled out a gun, shot at Orlando, and missed. people began shooting.

As Orlando ran away, Eloy tried to Chavez killed him.

take the gun from Chavez.

About an hour later, Orlando received two telephone calls at his home. The first caller was appellant, asking 6

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what happened on Holmes Street. Orlando, "You're next."

The second caller said to

Orlando understood that the caller

meant he would be the next person killed, as he was the only one of his friends who was still alive.

At the trial, Orlando testified that he was not sure if the second call came from appellant or from somebody else, such as Chavez. Fearing for his life, he went to the police

station and talked to detectives, later on the night of December 12. In a secretly taped interview, he told them

that it was appellant who made the "You're next" telephone call, after Eloy was killed.1 He gave the police many other He

details about his problems with Chavez and appellant.

said appellant had told him he was the driver of the car when Chavez committed the drive-by shooting. Chavez was

angry because Orlando refused to hide the gun, and appellant was upset that Orlando talked to Chavez about Chavez's wanting to kill him. A person who looked exactly like

appellant had come to his door on December 11 and cocked an "AK 47."2 When he asked appellant inside appellant's car

who the person was who came to his house with a gun, appellant tossed a gun into a secret compartment in the car.

The police secretly recorded the interview. audiotape of it was played for the jury.
2

1

A redacted

At the trial, Orlando testified that it was too dark for him to identify the man with the gun. 7

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Orlando did not tell the police at that time that he was with Eloy when Eloy was shot. Instead, he said he heard

shots, went to Eloy's house, and discovered that Eloy had been killed.

Orlando's interview at the police station continued into the early morning hours on December 13, 2003. home, slept, and then went to a friend's funeral. He went At the

funeral, Boxer asked him to come to his house to discuss something important. Orlando drove to Boxer's house, taking When he arrived

Refugio in the passenger seat of his car.

there, he was surprised to see Chavez talking to Boxer in the yard, near a gray car. Chavez ran towards the Realizing "it was a setup,"

passenger's side of the car. Orlando drove off.

Orlando testified that he did not see appellant at Boxer's house or driving the gray car. He also testified

that he did not see appellant driving the car, and nobody chased him. However, as will be seen, post, he implicated

appellant when detectives interviewed him at the hospital after the shooting.

According to Orlando, 10 or 15 minutes after he drove away from Boxer's house, he was stopped for a light at the intersection of Grandee Avenue and Century Boulevard. Suddenly, he saw Chavez's face in his side view mirror. Chavez grabbed Orlando's shirt and tried to put the gun to 8

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his head.

Orlando struggled to push the gun away.

Chavez The

shot him 10 times, mainly on the left side of his body. shots entered Orlando's neck, shoulders, back, chest, collarbone, arm, and armpit. abdomen, killing him. Refugio shot Chavez in the

Orlando drove towards Martin Luther

King Hospital, determined not to die, for the sake of his son. leg. Refugio told Orlando he had received a shot in the Refugio left the car at an intersection, before

Orlando reached the emergency room.

Orlando survived with severe permanent injuries, including nerve damage, an inability to shut one eye, and an inability to open his mouth widely. The police found a

loaded revolver and two spent shell casings in Orlando's car, which he left outside of the emergency room. stipulated at the trial that Refugio shot Chavez. It was Orlando

testified that he did not see Refugio commit the shooting.

An eyewitness named Cornell M. happened to be at the intersection on his bicycle. He saw a man (Chavez) walk up

to the driver's side of the car, fire a gun multiple times, and collapse in the middle of the street. the handgun out of Chavez's reach. Cornell kicked

The police recovered it.

Two days later, on December 15, 2003, Detectives Hahn and Allen interviewed Orlando at the hospital. He was

attached to medical equipment, heavily medicated, and could not speak, as his jaw was wired. 9 The detectives testified

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that he was alert, oriented, and able to make eye contact with them. Allen told Orlando that an eyewitness reported Allen handed Orlando

that Chavez was shot in self-defense.

a pad of paper and asked him to write down who shot him and who was with that person.

Orlando wrote down that Chavez shot him, appellant was with Chavez, and Refugio shot Chavez. He also wrote that

appellant and Chavez were in a car when he drove to Boxer's house with Refugio. He saw appellant twice after that, The paper

while "[t]hey were driving looking for me."

indicated that the writing occurred at the hospital at 11:30 a.m. on December 15, 2003.

At the trial, Orlando testified that did not recall writing the paper, and the writing on it did not look like his handwriting. However, when he had met with the

prosecutor and the detectives before the trial, he identified his handwriting.

On December 19, 2003, the police arrested appellant outside of Chavez's wake. Appellant told them that after He

Chavez called him, he drove Chavez to Boxer's house.

stayed in the driver's seat of the car while Chavez and Boxer talked outside of the car. Somebody said, "I got you b----." Orlando drove up. Orlando drove away.

Chavez jumped into the passenger seat of appellant's car. Appellant backed out of Boxer's driveway and drove along a 10

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route which he described to the police.

He saw Orlando in

the area of 103rd Street and Compton Avenue, and "basically matched eyes" with him. He saw Orlando again on Grandee Chavez got out of the

Avenue, two cars in front of him.

car, ran up to Orlando's car, and started shooting. Appellant drove past Orlando's car, noting that there was a person inside of it with a gun. After traveling a few He saw him

blocks, appellant returned to pick up Chavez. lying on the ground, and drove away.

Appellant denied that there was a secret compartment in his car. The car was impounded when he was arrested. The

officers did not find the compartment when they searched the car.

On December 26, 2003, Orlando told the police that he lied when he told them on December 12 that he was at home when Eloy was shot, as he actually was with Eloy at that time. He provided more information about the secret The police located it, and At the trial, Orlando did

compartment in appellant's car. found a loaded handgun inside.

not recall telling the police about the secret compartment.

C.

Gang Testimony

Scott Stevens, a police expert on gangs, testified that the Watts Varrio Grape street gang is the largest Hispanic gang in Watts. Its primary activities are violent crime and 11

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selling narcotics.

It was a common feature of gang

shootings that a driver would drop off the shooter and pick him up after the crime.

According to Stevens, appellant and Chavez belonged to a subgroup or "crew" of the gang which frequented the area of 97th Street and Grape Street. Orlando, Refugio, Eloy,

Sneaky, Spanky, and Orlando's brothers belonged to a different crew, centered at 95th Street and Holmes Street. The leadership of that crew had been passed down among Orlando's brothers. There was internal strife between the

two crews due to competition for marijuana sales, which was a primary source of income. The result was the killing of

the members of the Holmes Street crew, from the top leaders down through the ranks. Thus, Chavez shot Orlando to

promote the interest of his gang.

Stevens further testified that cooperation with the police was contrary to the usual code of conduct of gang members. Also, gang members do not want to have a "snitch

jacket," which can result in harm to themselves or family members. To avoid such a label, a person might say one

thing to the police and say something else later.

2.

Defense Testimony

Eilene R., appellant's cousin, testified that she helped set up a three-way call with Orlando when appellant 12

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called from jail on December 25, 2003.

Eilene heard Orlando

say that Chavez tried to kill Orlando, but Orlando "got rid of him first."

Another eyewitness, Ivette V., heard shots, saw a man running, and saw a person get out of the passenger's side of the car and shoot at the runner. The runner fell to the

ground, the person got back into the car, and the car drove away.

Ivette's brother-in-law, Ruben E., heard shots, and then saw a man at the car with his hands up. The man moved A

around the front of the car towards the passenger's side. hand came out from the passenger side window, holding a handgun. The gun fired one time.

The man ran from the car.

The passenger got out of the car and continued to shoot. The man who was running fell to the ground.

Another eyewitness, Markecia H., heard gunshots, saw a man run and shoot at the same time, and then saw that man fall to the ground.

(Respondent's Lodgment D, pp. 3-9); People v. Ramirez, 2005 WL 2365217, at *1-5) (footnotes renumbered).

PETITIONER'S CONTENTIONS

Petitioner contends: 13

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1.

The evidence allegedly was insufficient to support

Petitioner's conviction for conspiracy to commit murder (Petition, Ground One);

2.

The evidence allegedly was insufficient to support

Petitioner's conviction for attempted murder (Petition, Ground Two);

3.

The trial court allegedly erred in failing to bifurcate the

trial in connection with the testimony of the gang expert (Petition, Ground Three);

4.

The use of CALJIC 3.01, California's standard aiding and

abetting instruction at the time of Petitioner's trial, allegedly violated due process (Petition, Ground Four):

5.

The admission of evidence of the secret compartment in

Petitioner's car and the gun found therein allegedly denied Petitioner a fair trial (Petition, Ground Five);

6.

Petitioner's trial counsel and appellate counsel allegedly

rendered ineffective assistance in the following ways:

a.

trial counsel allegedly failed to investigate, and

object to the introduction of, evidence of the secret compartment and gun in Petitioner's car;

b.

trial counsel allegedly failed to explore more fully the

circumstances surrounding Ortiz' hospital interview with police 14

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and Ortiz' written response to the interviewers' questions;

c.

trial counsel assertedly failed to object to alleged

prosecutorial misconduct in closing argument; and

d.

appellate counsel allegedly failed to investigate the

case adequately, to object to allegedly inadmissible evidence, and to challenge on appeal alleged prosecutorial misconduct

(Petition, Ground Six); and

7.

The prosecution assertedly committed misconduct by:

a.

allegedly placing into evidence an assertedly false

document or documents;

b.

allegedly presenting Officer Allen's assertedly perjured

testimony concerning Petitioner's statement to police;

c.

allegedly referring to Petitioner's statement to police

as a "confession" in closing argument; and

d.

allegedly suppressing ballistics evidence concerning the

gun found in the secret compartment of Petitioner's car;

(Petition, Ground Seven). /// /// 15

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STANDARD OF REVIEW

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in 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"; or (2) "resulted in a decision that was 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) (as

amended); see also Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. (2003). Lockyer v. Andrade, 538 U.S. 63

A state court's decision is "contrary to" clearly established

Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation

omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of 16

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the case in which the principle was announced."

Lockyer v. Andrade,

538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Taylor, 529 U.S. at 407 (citation omitted). Williams v.

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Smith, 539 U.S. 510, 520 (2003) (citation omitted). Wiggins v.

"The state Id.

court's application must have been `objectively unreasonable.'"

at 520-21 (citation omitted); see also Davis v. Woodford, 384 F.3d 629, 637-38 (9th Cir. 2004).

In applying these standards, this Court looks to the last reasoned state court decision. 919, 925 (9th Cir. 2008). See Delgadillo v. Woodford, 527 F.3d

If the state courts did not decide a

federal constitutional claim on the merits, this Court must consider that claim under a de novo standard of review. See Pinholster v.

Ayers, 525 F.3d 742, 756 (9th Cir. 2008) ("De novo review applies if 17

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the state court did not reach the merits of a particular issue.") (citation omitted).

DISCUSSION

For the reasons discussed below, the Petition should be denied and dismissed with prejudice.3

I.

Petitioner's Challenge to the Sufficiency of the Evidence to Support His Conviction for Conspiracy to Commit Murder Does Not Merit Habeas Relief.

Petitioner contends the evidence does not support Petitioner's conviction for conspiracy to commit murder. Petitioner argues that

Ortiz' statements to police and the gang expert's allegedly prejudicial testimony constituted the only evidence supporting the conspiracy conviction (Pet. Mem., p. 11). Petitioner contends Ortiz'

trial testimony was inconsistent with his previous statements to police, and attacks Ortiz' pretrial statements as self-serving and inconsistent (Pet. Mem., p. 11; Reply, pp. 3-5).

The Court has read, considered and rejected on the merits all of Petitioner's contentions. The Court discusses Petitioner's principal contentions herein. The Court assumes, arguendo, Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Franklin v. Johnson, 290 F.3d 1223, 1229, 1232-33 (9th Cir. 2002); see also Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.), cert. denied, 528 U.S. 846 (1999) ("judicial economy sometimes dictates reaching the merits if the merits are easily resolvable against the petitioner while the procedural bar issues are complicated"). 18

3

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Petitioner raised his challenge to the sufficiency of the evidence to support his conspiracy conviction in a motion for a new trial following the verdict (R.T. 3018-25). Petitioner's counsel

argued that, because Ortiz assertedly had lied at trial, and because there allegedly was no evidence corroborating Ortiz' statements inculpating Petitioner, there was no evidence of an agreement or of intent to kill (R.T. 3021-22). 3030-31). The court denied the motion (R.T.

The Court of Appeal agreed that the evidence was sufficient

to support Petitioner's conspiracy conviction, ruling that the statements Petitioner and Ortiz made to police "overwhelmingly establish[ed]" that Petitioner and Chavez had an agreement to kill Orlando (Respondent's Lodgment D, pp. 9-11; People v. Ramirez, 2005 WL 2365217, at *6).

On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so

totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir.

1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). The evidence is to be considered "in the light most Wright v. West, 505 U.S. 277, 296

favorable to the prosecution."

(1992) (plurality opinion) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A conviction cannot be disturbed unless the Court

determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." West, 505 U.S. at 284; Jackson v. Virginia, 443 U.S. at 317. /// 19 Wright v.

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A reviewing court "faced with a record of historical facts that supports conflicting inferences must presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson v. Virginia, 443 U.S. at 326. "The reviewing

court must respect the exclusive province of the fact finder to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts." United States v.

Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996); see also Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). "[T]he prosecution need not Wright

affirmatively rule out every hypothesis except that of guilt." v. West, 505 U.S. at 296.

This Court cannot grant habeas relief on

Petitioner's challenge to the sufficiency of the evidence unless the state court's decision constituted an "unreasonable application of" Jackson v. Virginia. See Juan H. v. Allen, 408 F.3d 1262, 1274-75

(9th Cir. 2005), cert. denied, 546 U.S. 1137 (2006).

"A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act `by one or more of the parties to such agreement' in furtherance of the conspiracy." People v. Morante, 20 Cal. 4th 403, 416, 84 Cal. "The elements

Rptr. 2d 665, 975 P.2d 1071 (1999) (citations omitted).

of a conspiracy may be proven with circumstantial evidence, `particularly when those circumstances are the defendant's carrying out the agreed-upon crime'" People v. Vu, 143 Cal. App. 4th 1009, "To prove

1024-25, 49 Cal. Rptr. 3d 765 (2006) (citations omitted). 20

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an agreement, it is not necessary to establish that the parties met and expressly agreed; rather, `a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design." Id. at 1025 (citation omitted).

"A conviction of conspiracy to commit murder requires a finding of intent to kill." Id. (citation omitted). "Because there rarely is

direct evidence of a defendant's intent, `[s]uch intent must usually be derived from all the circumstances, including the defendant's actions." Id. (citation omitted).

Although Petitioner challenges the credibility of Ortiz' statements to police inculpating Petitioner, in reviewing the sufficiency of the evidence, this Court cannot reweigh the evidence or redetermine issues of credibility resolved by the jury. See Bruce v.

Terhune, 376 F.3d 950, 958 (9th Cir. 2004) (evidence sufficient to show petitioner molested his 10-year-old cousin; federal habeas court could not revisit jury's resolution of inconsistencies between victim's account and those of other witnesses, and victim's account was not "wholly incredible"); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (evidence sufficient to support defendant's convictions for using, carrying or possessing certain type of firearm, where driver of getaway car testified defendant fired shots from car at pursuing officers; although defendant attacked driver's credibility at trial in an effort to show driver was the shooter, the jury believed the driver, and court does not "question a jury's assessment of witnesses' 21

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credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution); Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000) (although evidence was "almost entirely circumstantial and relatively weak," questions of credibility were for the jury, and prosecution evidence, if believed, sufficed to support conviction).

Here, the prosecution presented evidence from Ortiz that: (1) Chavez told Ortiz that Chavez and Petitioner had engaged in a prior drive-by shooting in which Petitioner was the driver and Chavez was the shooter; (2) Petitioner told Ortiz that Chavez wanted to kill Ortiz and wanted Petitioner to set it up; (3) the day after Ortiz confronted Chavez concerning Chavez' alleged desire to kill Ortiz, Petitioner asked Ortiz why Ortiz had confronted Chavez, and said Chavez would know Petitioner had reported to Ortiz that Chavez wanted to kill Ortiz because "nobody else knew"; (4) on December 11, 2003, a person who looked "just like" Petitioner came into Ortiz' yard holding an AK-47, cocked the gun, then left; (5) less than half an hour after Eloy's murder, Petitioner called Ortiz and said "you're next"; and (6) at the hospital, Ortiz wrote a statement indicating that Petitioner was with Chavez when Chavez shot Ortiz (R.T. 367-70, 37579, 385, 397-98, 404-05, 702, 980-82, 990-92, 1252-53, 1539, 1577-82, 1580).

The evidence also included Petitioner's statements to police that: (1) on December 12, 2003, Chavez called Petitioner with the news that Chavez had killed Eloy, after which Petitioner called Ortiz and Ortiz hung up the phone; (2) on December 13, 2003, Petitioner: 22

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(a) picked up Chavez and drove to Boxer's house; (b) stayed in the car while Chavez spoke with Boxer; (c) saw Ortiz drive by; (d) left with Chavez, driving in the same direction as Ortiz; (e) saw Ortiz' car and "matched eyes" with Ortiz; (f) pulled up two cars behind Ortiz but did not want to get close; (g) saw Chavez exit the car and shoot at Ortiz; (h) "pushed the gas" and drove past the scene, then returned to where Chavez was lying; and (i) saw the police and left the scene (R.T. 1257-72, 1277, 1508-10, 1524-29, 1537-40, 1555-57, 1887). The

evidence also included testimony that Shantel Rasmussen told police that Petitioner and Chavez left Boxer's house immediately after Ortiz, and followed Ortiz (R.T. 1223-24).

This evidence amply supported Petitioner's conviction for conspiracy to commit murder. See, e.g., Flores v. Roe, 228 Fed. App'x

690, at *1 (9th Cir. 2007) (where co-defendant notified someone that "he" was coming over "to take care of business," that petitioner arrived almost immediately thereafter and physically attacked the victim, and that petitioner did not react to the shooting and departed with the shooter, evidence was sufficient to support conspiracy conviction). In light of this Court's review of the entire record,4

the Court cannot deem the Court of Appeal's rejection of Petitioner's first sufficiency claim to be objectively unreasonable. § 2254(d). See 28 U.S.C.

Therefore, Petitioner is not entitled to habeas relief on

Ground One of the Petition. ///

The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d at 1008. 23

4

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II.

Petitioner's Challenge to the Sufficiency of the Evidence to Support His Conviction for Attempted Murder Does Not Merit Habeas Relief.

Under California law, murder is the unlawful killing of a human being with malice aforethought. Cal. Penal Code § 187(a); see People

v. Chinchilla, 52 Cal. App. 4th 683, 690, 60 Cal. Rptr. 2d 761 (1997). "In order to prove an attempted murder charge, there must be sufficient evidence of the intent to commit the murder plus a direct but ineffectual act toward its commission." Cal. App. 4th at 690 (citation omitted). People v. Chinchilla, 52

"[A]n aider and abettor is a

person who, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." People v. Prettyman, 14 Cal. 4th 248, 259, 58 Cal. Rptr. 2d

827, 926 P.2d 1013 (1996) (citation and internal quotations omitted); see also People v. Beeman, 35 Cal. 3d 547, 550-51, 199 Cal. Rptr. 60, 674 P.2d 1318 (1984). "When the offense charged is a specific intent

crime, the accomplice must `share the specific intent of the perpetrator'; this occurs when the accomplice `knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.'" (citation omitted). People v. Prettyman, 14 Cal. 4th at 259

Petitioner challenges the sufficiency of the evidence to support his conviction for attempted murder on a theory of aiding and 24

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abetting, arguing that the evidence did not show that Petitioner shared the intent of Chavez (Pet. Mem., pp. 17-23). According to

Petitioner, no direct evidence showed Petitioner facilitated or encouraged Chavez' shooting of Ortiz, or acted with knowledge of Chavez' unlawful purpose (Pet. Mem., pp. 19-20). The Court of Appeal

deemed the evidence sufficient (Respondent's Lodgment D, p. 11; People v. Ramirez, 2006 WL 2365217, at *6).

From the evidence discussed in Section I above, a rational juror could have found that Petitioner: (1) knew Chavez intended to kill Ortiz; (2) intended to encourage or facilitate the killing of Ortiz; and (3) aided and encouraged Chavez in his attempt to kill Ortiz. Specifically, the following evidence could have convinced a rational juror that Petitioner knew of Chavez' murderous intent: Petitioner told Ortiz that Chavez wanted to kill Ortiz and wanted Petitioner to set it up; and Petitioner complained to Ortiz that Ortiz had told Chavez what Petitioner had said. The following evidence could have

convinced a rational juror that Petitioner intended to encourage and facilitate the killing of Ortiz and in fact aided and facilitated Chavez in his attempt to kill Ortiz: (1) Petitioner appeared at Ortiz' house and cocked an AK-47; (2) Petitioner called Ortiz shortly after Eloy's killing and told Ortiz "you're next"; (3) Petitioner drove a car in which Chavez rode as passenger, following Ortiz until Petitioner's car was two cars behind Ortiz' car; (4) Petitioner observed Chavez exit the car and shoot Ortiz; and (5) Petitioner returned to the site of the shooting. /// /// 25

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In light of this Court's review of the entire record, the Court cannot deem the Court of Appeal's rejection of Petitioner's second sufficiency claim to be objectively unreasonable. 2254(d). See 28 U.S.C. §

Therefore, Petitioner is not entitled to habeas relief on

Ground Two of the Petition.

III. The Trial Court's Failure to Bifurcate Trial in Connection with the Gang Expert's Testimony Does Not Merit Habeas Relief.

A.

Background

At trial, the defense objected to the introduction of any testimony from the prosecution gang expert that connected Petitioner to any of the killings prior to the shooting of Ortiz (R.T. 1844-45, 1855). In a hearing out of the presence of the jury, the expert,

Officer Scott Stevens, testified concerning the "power struggle" within the gang, opining that the crimes were committed for money and power within the gang (R.T. 1845-50). The prosecutor argued that the

gang expert's testimony was relevant not only to the criminal street gang allegation, but also, inter alia: (1) to show motive, intent, premeditation and deliberation; (2) to explain witness intimidation; (3) to "establish an aider and abettor conspiracy for the underlying crimes"; and (4) to explain that a driver in a gang shooting would not be a "passive companion without knowledge" (R.T. 1850). The judge

decided to wait to hear the expert's testimony and any specific objection made during that testimony (R.T. 1856). Petitioner's

counsel asked the judge to limit the purpose of the expert's testimony to proof of the criminal street gang allegation (R.T. 1856-57). 26 The

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

judge did not give any such limiting instruction.

Officer Stevens testified at trial as described in the Court of Appeal's opinion, set forth above. During Stevens' testimony, the

court advised the jury that some of the background information upon which Stevens based his opinions had not been introduced into evidence, and that the jury could consider such background information "only for the purpose of determining what it was [Stevens] based his opinion on" (R.T. 1914). The court continued: "If you are convinced

that that information is erroneous and you don't believe it, then, of course, it's up to you to decide what affect [sic] that belief will have on the opinion that he actually gives" (R.T. 1914).

Petitioner contends the trial court erred by failing to bifurcate the trial in connection with Stevens' testimony (Pet. Mem., p. 23). Petitioner contends Stevens' testimony included "highly inflammatory other acts of other Persons/Propensity/gang culture and practices" which allegedly had nothing to do with Petitioner's guilt of the charged crimes (id.). The Court of Appeal stated that, because the

defense made no request for bifurcation, the court would not consider Petitioner's argument (Respondent's Lodgment D, p. 12; People v. Ramirez, 2005 WL 2365217, at *7). However, the Court of Appeal also

deemed the testimony concerning problems between the two "crews" relevant to the issue of motive, and ruled that the challenged evidence was not prejudicial (Respondent's Lodgment D, p. 12; People v. Ramirez, 2005 WL 2365217, at *7). /// /// 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In California, a trial court has discretion to bifurcate trial of a criminal street gang enhancement allegation. People v. Hernandez,

33 Cal. 4th 1040, 1049-51, 16 Cal. Rptr. 3d 880, 94 P.3d 1040 (2004). However, bifurcation is unnecessary where the evidence supporting the gang enhancement allegation is admissible at a trial on the issue of guilt. Id. at 1049-50. Moreover, even if some of the evidence

offered to prove the enhancement allegation is inadmissible at the trial on the charged offense, a court may deny bifurcation where additional factors favor a unitary trial. Id. at 1050. The defendant

bears the burden "to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." Id. at 1050-51 (citation omitted).

To the extent Petitioner argues the trial court violated state law in failing to bifurcate the trial in connection with the gang expert's testimony, Petitioner's claim fails. In conducting habeas

review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Habeas relief is not

available for an alleged error in the interpretation or application of state law. Id. at 67-68; Jammal v. Van de Kamp, 926 F.2d 918, 919

(9th Cir. 1991).

To the extent Petitioner argues the gang expert's testimony inflamed the jury by suggesting Petitioner's propensity to commit crimes, Petitioner's claim fails. The United States Supreme Court has

never held that the introduction of prior bad acts evidence to show propensity to commit the current crime violates due process. 28 See

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Estelle v. McGuire, 502 U.S. at 75 n.5 ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime"); see also Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (rejecting habeas petitioner's challenge to introduction of propensity evidence, where petitioner could point to no Supreme Court precedent establishing that admission of otherwise relevant propensity evidence violated the Constitution); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 127 S. Ct. 1834 (2007) (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire).

Petitioner analogizes the failure to bifurcate the trial in connection with the gang expert's testimony to a failure to sever the trial of the gang enhancement allegation from trial on the charged crimes. In People v. Hernandez, supra, the California Supreme Court

noted that the "analogy between bifurcation and severance is not perfect," observing that severance is a "more inefficient use of judicial resources than bifurcation because severance requires selection of separate juries, and the severed charges would always have to be tried separately," whereas "a bifurcated trial is held before the same jury, and the gang enhancement would have to be tried only if the jury found the defendant guilty." Cal. 4th at 1088. People v. Hernandez, 33

The court concluded that a court's discretion to

deny bifurcation of a gang enhancement allegation is "broader than its discretion to admit gang evidence when the gang enhancement is not charged." Id. at 1087. 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"Improper joinder does not, in itself, violate the Constitution." United States v. Lane, 474 U.S. 438, 446 n.8 (1986). Misjoinder

violates the Constitution only where it results in prejudice so great as to deny a defendant his right to a fair trial. Id.; see also Davis

v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004), cert. dismissed, 545 U.S. 1165 (2005) (habeas relief unavailable unless joinder "actually render[ed] petitioner's state trial fundamentally unfair"); Sandoval v. Calderon, 241 F.3d 765, 771-72 (9th Cir. 2000), cert. denied, 534 U.S. 847 (2001) and 534 U.S. 943 (2001) (same). "This prejudice is

shown if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict." Calderon, 241 F.3d at 772 (citation omitted). Sandoval v.

Undue prejudice sometimes can arise when "joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible," or when a "strong evidentiary case" is joined with a "weaker one." Id. at 771-72.

Petitioner "bears the burden to prove unfairness rising to the level of a due process concern." Park v. State of California, 202 F.3d

1146, 1149 (9th Cir.), cert. denied, 531 U.S. 918 (2000) (citation omitted).

Here, the evidence showed Petitioner, Chavez, Ortiz and certain others were gang members. "[E]vidence of the defendant's gang

affiliation -- including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries and the like -- can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues 30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

pertinent to the charged crime." 1049.

People v. Hernandez, 33 Cal. 4th at

Much of Officer Stevens' testimony was relevant to issues For example,

concerning Petitioner's guilt of the charged offenses.

testimony that a power struggle existed between two factions of the gang, and that several gang members had been killed prior to the shooting of Ortiz, placed Petitioner's statement "you're next" in context, and was relevant to the issues of motive, intent, conspiracy, and Petitioner's liability as an aider and abettor. See People v.

Hernandez, 33 Cal. 4th at 1087 (evidence concerning alliance between two gangs relevant to issues of motive and intent); Windham v. Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1008) (in prosecution for murder, attempted murder and assault on an aiding and abetting theory, testimony of gang expert regarding retributive behavior between rival gangs relevant to demonstrate defendant's motive for participating in the alleged crimes). Testimony that gang members committed drive-by

shootings in which one participant was the driver and one participant was the shooter was relevant to the issues of Petitioner's intent and involvement as a conspirator and an aider and abettor. See People v.

Superior Court (Quinteros), 13 Cal. App. 4th 12, 20-21, 16 Cal. Rptr. 2d 462 (1993) ("[t]he circumstances from which a conspiratorial agreement may be inferred include the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties and the interests of the alleged conspirators"; "common gang membership may be part of circumstantial evidence supporting the inference of a conspiracy") (citations, internal quotations and brackets omitted). Testimony that gang

members feared retaliation if they reported crimes to police or testified against gang members was relevant to the issue of the 31

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credibility of various witnesses, including Ortiz.

See Johnson v.

McGrath, 2006 WL 2331006, at *20 (C.D. Cal. Aug. 4, 2006) (gang evidence relevant to show some witnesses may have recanted statements incriminating petitioner due to fear of retaliation).

Moreover, Stevens' testimony was not unduly prejudicial.

The

jury found the gang enhancement allegations not true, undercutting any contention that Stevens' opinion or the information upon which it was based had any assertedly "inflammatory" effect on the issue of Petitioner's guilt. Under these circumstances, the failure to

bifurcate the trial in connection with the gang expert's testimony did not render Petitioner's trial fundamentally unfair, or have any substantial and injurious effect on the verdict. Calderon, 241 F.3d at 772. See Sandoval v.

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the trial court's failure to bifurcate the trial in connection with the gang expert's testimony was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas

relief on Ground Three of the Petition.

IV.

Petitioner's Challenge to the Trial Court's Use of CALJIC 3.01 Does not Merit Habeas Relief.

The trial court instructed the jury on aiding and abetting using CALJIC 3.01, which was California's standard aiding and abetting 32

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instruction at the time of Petitioner's trial:

A person aids and abets the commission of a crime when he or she:

(1) and

With knowledge of the unlawful purpose of the perpetrator,

(2)

With the intent or purpose of committing or encouraging or

facilitating the commission of the crime, and

(3)

By act or advice aids, promotes, encourages or

instigates the commission of the crime.

A person who aids and abets the commission of a crime need not be present at the scene of the crime.

Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.

Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

(R.T. 2733; C.T. 129). /// /// 33

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Petitioner contends the challenged instruction permitted the jury to convict Petitioner of attempted murder on an aiding and abetting theory without finding beyond a reasonable doubt that Petitioner knew of Chavez' intent or that Petitioner harbored the intent to commit or facilitate the attempted murder (Pet. Mem., pp. 49-50; Traverse, pp. 12-13). The Court of Appeal rejected Petitioner's challenge to

the instruction, ruling that the instruction correctly defined the mental state of an aider and abettor, as set forth in People v. Beeman, supra (Respondent's Lodgment D, pp. 12-13; People v. Ramirez, 2005 WL 2365217, at *8).

"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333,

342 (1993); see also Estelle v. McGuire, 502 U.S. at 71-72 ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal

habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 127 S. Ct. 555 (2006). The court must

evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004);

Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). /// 34

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Petitioner's claim fails for several reasons.

First, "due

process -- independent of state law -- does not require that an aiding and abetting charge contain a distinct instruction regarding specific intent." Willard v. People of the State of California, 812 F.2d 461,

463 (9th Cir. 1987) (citation omitted) (instruction which stated that aider and abettor must have knowledge of perpetrator's unlawful purpose, but failed to state that aider and abettor must act with intent or purpose of committing, encouraging, or facilitating the commission of the offense, did not violate due process); see Nye & Nissen v. United States, 336 U.S. 613, 618 (1949) (instruction that one who "aids, abets, counsels, commands, induces, or procures the commission of an act is as responsible for that act as if he committed it directly," without further elaboration regarding intent of aider and abettor, adequate under federal aiding and abetting statute).

Second, and in any event, the challenged instruction expressly told the jury that the jury could convict Petitioner of attempted murder on an aiding and abetting theory only if the jury determined that Petitioner both knew of Chavez' unlawful purpose and acted with the intent or purpose of committing or encouraging or facilitating the commission of the offense. This instruction constituted a correct See People v. Prettyman, 14 Cal. 4th at

statement of California law.

259 ("When the offense charged is a specific intent crime, the accomplice must `share the specific intent of the perpetrator'; this occurs when the accomplice `knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.'"); People v. Beeman, 35 Cal. 3d at 550-51. 35 In these circumstances, the

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use of CALJIC 3.01 did not render Petitioner's trial fundamentally unfair. See Spivey v. Rocha, 194 F.3d 971, 976 (9th Cir. 1999), cert.

denied, 531 U.S. 995 (2000) (aiding and abetting instruction consistent with California law did not violate due process).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's claim of instructional error was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. U.S.C. § 2254(d). See 28

Petitioner is not entitled to habeas relief on

Ground Four of the Petition.

V.

Petitioner's Challenge to the Admission of Evidence of the Gun and Secret Compartment in Petitioner's Car Does Not Merit Habeas Relief.

A.

Background

At the time of Petitioner's arrest, Petitioner denied having a secret compartment in his car, saying he normally hid his gun under the dashboard (R.T. 1214-15, 1218). The police dismantled the After Ortiz told

dashboard but found nothing unusual (R.T. 1215).

police about the secret compartment on December 26, 2003, however, the police found and opened the secret compartment, discovering a loaded nine millimeter handgun (R.T. 969, 1218). Although the gun had been

submitted for a ballistics analysis, the police had not received the analysis by the time of trial (R.T. 984-85, 1219). A fingerprint

analysis of the gun yielded no distinguishable fingerprints (R.T. 36

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1220).

Officer Allen testified he did not know if any of the casings

located at the scene came from the gun found in Petitioner's car, the car was impounded six days after the shooting, and Officer Allen did not know when the gun was placed in the secret compartment (R.T. 985). Officer Allen also testified, on cross-examination, that there was no physical evidence linking the gun to a crime (R.T. 1221).

Petitioner's counsel did not object to the challenged evidence until the conference regarding exhibits which occurred near the end of trial, at which counsel unsuccessfully raised a relevance objection (R.T. 2809-11).

B.

Discussion

Petitioner contends the evidence of the secret compartment and gun in Petitioner's car was irrelevant and prejudicial. The Court of

Appeal rejected Petitioner's claim, ruling that any objection to the admission of the evidence was untimely, and that, in any event, the admission of the evidence was not prejudicial (Respondent's Lodgment D, pp. 13-14); People v. Ramirez, 2005 WL 2365217, at *8). The Court

of Appeal reasoned that there was no possibility the jury confused Petitioner's gun with the guns used in the case, and that evidence that Petitioner had a gun hidden in his car was "far less inflammatory than the facts regarding [Petitioner's] participation in the attempted murder of Orlando" (Respondent's Lodgment D, p. 14; People v. Ramirez, 2005 WL 2365217, at *8). /// /// 37

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Habeas relief is not available for an alleged error in the interpretation or application of state law. U.S. at 67-68. Estelle v. McGuire, 502

"Thus, whether or not the admission of evidence is

contrary to a state rule of evidence, a trial court's ruling does not violate due process unless the evidence is of such quality as necessarily prevents a fair trial." Windham v. Merkle, 163 F.3d at

1103 (citation and internal quotations omitted); see also Romano v. Oklahoma, 512 U.S. 1, 10 (1994) ("[t]hat the evidence may have been irrelevant as a matter of state law, however, does not render its admission federal constitutional error [citation]"); Johnson v. Sublett, 63 F.3d 926, 931 (9th Cir.), cert. denied, 516 U.S. 1017 (1995) (argument that admission of wooden clubs found at defendant's house was unconstitutional due to lack of evidence linking clubs to crimes "presents state-law foundation and admissibility questions that raise no federal habeas issues") (citation omitted).

The admission of the challenged evidence did not deny Petitioner a fair trial. There was no evidence that the gun found in No rational juror could

Petitioner's car was used in the shootings.

have found, based on the evidence, that the gun found in Petitioner's car was used in connection with the crimes of which Petitioner was convicted. To the extent Petitioner argues the challenged evidence

inflamed the jury by suggesting Petitioner's propensity to commit the crimes, Petitioner's claim fails. As previously discussed, the United

States Supreme Court has never held that the introduction of prior bad act evidence to show propensity to commit the current crime violates due process. See Estelle v. McGuire, 502 U.S. at 75 n.5. Therefore,

Petitioner may not obtain habeas relief on his challenge to the 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

admission of alleged propensity evidence under the standard of review set forth in 28 U.S.C. section 2254(d). See Mejia v. Garcia, 534 F.3d

at 1046; Alberni v. McDaniel, 458 F.3d at 864.

For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Five of the Petition.5

VI.

Petitioner's Claims of Ineffective Assistance of Trial and Appellate Counsel Lack Merit.

A.

Governing Legal Standards

To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 A reasonable probability of a different result

(1984) ("Strickland").

"is a probability sufficient to undermine confidence in the outcome."

In his "Request for Leave to Conduct Discovery," Petitioner seeks a court order allowing discovery of the alleged ballistics report concerning the gun found in Petitioner's car, presumably to show the gun was not used in the crimes. However, there was no evidence at trial that the gun was used in the crimes, and the detective who found the gun testified he had no physical evidence connecting the gun to the crimes. Therefore, because Petitioner has not shown good cause for the requested discovery, Petitioner's request for discovery is denied. See Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003) (en banc), cert. denied, 540 U.S. 1013 (2003) (discovery in habeas proceedings available only on a showing of good cause); Rule 6(a), Rules Governing Section 2254 Cases in the United States District Courts. 39

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Id. at 694.

The court may reject the claim upon finding either that

counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir.

2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted). For

purposes of habeas review under 28 U.S.C. section 2254(d), Strickland sets forth clearly established Federal law as determined by the United States Supreme Court. See Williams v. Taylor, 529 U.S. at 391

(citation and quotations omitted).

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford,

384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the

reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." U.S. at 690. Strickland, 466

The court may "neither second-guess counsel's decisions, Karis v.

nor apply the fabled twenty-twenty vision of hindsight."

Calderon, 283 F.3d 1117, 1130 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). The test is "only whether some

reasonable lawyer . . . could have acted, in the circumstances, as defense counsel acted." Coleman v. Calderon, 150 F.3d 1105, 1113 (9th

Cir.) (citations and quotations omitted), rev'd on other grounds, 525 U.S. 141 (1998); see also Babbitt v. Calderon, 151 F.3d 1170, 1173-74 40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999) (relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable) (citation and quotations omitted); Morris v. California, 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992) (if the court can conceive of a reasonable tactical reason for counsel's action or inaction, the court need not determine the actual explanation). Petitioner bears the burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." omitted). Strickland, 466 U.S. at 689 (citation and quotations

Petitioner raised his claims of ineffective assistance of trial and appellate counsel in his habeas corpus petitions filed in the California Supreme Court (see Respondent's Lodgments G, I). The

California Supreme Court denied those petitions with citations indicating that the court did not reach the merits of Petitioner's claims.6
6

Therefore, this Court's review is de novo.

See Pinholster

The California Supreme Court denied Petitioner's first habeas corpus petition with citations to People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 886 P.2d 1252 (1995) ("Duvall"), and In re Swain, 34 Cal. 2d 300, 304, 209 P.2d 793 (1949), cert. denied, 338 U.S. 944 (1950), 340 U.S. 938 (1951), and 342 U.S. 914 (1952) ("Swain") (Respondent's Lodgment H). These citations refer to the California rule that, to meet his or her initial burden of pleading adequate grounds for relief, a California habeas petitioner must state fully and with particularity the facts upon which relief is sought. See Duvall, 9 Cal. 4th at 474, 37 Cal. Rptr. 2d at 265; Swain, 34 Cal. 2d at 303-04; see also Gaston v. Palmer, 417 F.3d 1030, 1036-39 (9th Cir. 2005), modified 447 F.3d 1165 (9th Cir. 2006), cert. denied, 127 S. Ct. 979 (2007) (describing pleading requirements of Duvall and Swain). (continued...) 41

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v. Ayers, 525 F.3d at 756.

B.

Discussion

For the reasons discussed below, Petitioner's claims of ineffective assistance of trial and appellate counsel lack merit.

1.

Trial Counsel's Alleged Failure to Obtain a Ballistics Report on the Gun Found in the Secret Compartment of Petitioner's Car

Petitioner contends trial counsel ineffectively failed to obtain a ballistics report on the gun found in the secret compartment of Petitioner's car (Pet. Mem., p. 61). According to Petitioner, had

counsel done so, counsel would have learned that the gun found in the secret compartment of Petitioner's car was not the gun used to shoot Ortiz (Pet. Mem., p. 61).

A reasonable attorney in the position of Petitioner's counsel could have concluded that it was unnecessary to obtain a ballistics report on the gun found in the secret compartment of Petitioner's car. As indicated above, there was no evidence indicating this gun was used in the shootings.