Edgardo Herrera v. Martin Biter

Filing 50

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. The Petition for Writ of Habeas Corpus is DENIED and Judgment shall be entered dismissing this action with prejudice. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EDGARDO HERRERA, 11 Case No. CV 13-7965 SS Petitioner, 12 v. 13 MEMORANDUM DECISION AND ORDER MARTIN D. BITER, Warden, 14 Respondent. 15 16 17 18 I. 19 INTRODUCTION 20 21 Effective October 17, 2013, Edgardo Herrera (“Petitioner”), a 22 California state prisoner proceeding pro se, filed a Petition for 23 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 24 U.S.C. § 2254 (“Petition”).1 25 26 27 28 (Dkt. No. 1). On March 3, 2014, “When a prisoner gives prison authorities a habeas petition or other pleading to mail to court, [pursuant to the mailbox rule,] the court deems the petition constructively ‘filed’ on the date it is signed[,]” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Houston v. Lack, 487 U.S. 266, 276 (1988), which in this case was October 17, 2013. 1 1 Respondent filed an Answer to the Petition with an accompanying 2 Memorandum of Points and Authorities (“Ans. Mem.”). 3 On December 22, 2015, Petitioner filed a First Amended Petition 4 for Writ of Habeas Corpus, and he filed the operative Second Amended 5 Petition (“SAP”) effective January 21, 2016. 6 39, 41). 7 to the SAP as well as a memorandum of points and authorities in 8 support of the Supplemental Answer (“Supp. Ans. Mem.”). 9 46). (Dkt. No. 12). (Dkt. Nos. 24, 38- On March 11, 2016, Respondent filed a Supplemental Answer (Dkt. No. Respondent has also lodged documents from Petitioner’s state 10 proceedings, including the Clerk’s Transcript (“CT”) and Reporter’s 11 Transcript (“RT”). 12 Reply on April 8, 2016. (Dkt. Nos. 13, 17, 31). Petitioner filed a (Dkt. No. 48). 13 14 The parties have consented to the jurisdiction of the 15 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 16 636(c). 17 the Petition is DENIED and this action is DISMISSED WITH PREJUDICE. (Dkt. Nos. 9, 14-15). For the reasons discussed below, 18 19 II. 20 PRIOR PROCEEDINGS 21 22 On December 7, 2010, a Los Angeles County Superior Court jury 23 convicted Petitioner of three counts of second-degree robbery in 24 violation of California Penal Code (“P.C.”) § 211 and also found 25 it to be true that a principal personally used a firearm during 26 the robberies within the meaning of P.C. § 12022(a)(1) and that 27 Petitioner committed the robberies for the benefit of, at the 28 direction of, or in association with a criminal street gang with 2 1 the specific intent to promote, further or assist in criminal 2 conduct by gang members within the meaning of P.C. § 186.22(b).2 3 (CT 403-05, 409-11; RT 4805-08). 4 admitted 5 California’s Three Strikes Law, P.C. §§ 667(b)-(i) & 1170.12(a)- 6 (d), and a prior serious felony conviction within the meaning of 7 P.C. § 667(a)(1). 8 trial court sentenced Petitioner to a prison term of 30 years. 9 421-24, 426-27; RT 5406-07). he had suffered a On January 15, 2011, Petitioner prior “strike” (CT 414; RT 5101-03). conviction under On March 10, 2011, the (CT 10 11 Petitioner appealed his convictions and sentence to the 12 California Court of Appeal (2d App. Dist., Div. 7), which affirmed 13 the judgment in an unpublished decision filed August 9, 2012. 14 (Lodgments A1, A5-A7). 15 petition for review in the California Supreme Court, which denied 16 the petition on October 31, 2012. On September 11, 2012, Petitioner filed a (Lodgments B1-B2). 17 18 Effective July 31, 2014, Petitioner filed a petition for writ 19 of habeas corpus in Los Angeles County Superior Court, which denied 20 the petition on November 20, 2014. 21 39-40). 22 corpus in the California Court of Appeal, which denied the petition 23 on January 14, 2015. 24 10, (Lodgment C1; Dkt. No. 34-1 at Petitioner thereafter filed a petition for writ of habeas 2015, Petitioner (Dkt. No. 34-1 at 42). filed a habeas Effective February corpus petition in the 25 26 Petitioner was tried with co-defendants Nicholas Rodriguez. (See, e.g., RT 4). The reach verdicts as to Cisneros and Rodriguez, declared as to them. (RT 4813; Lodgment A1 at 2 27 28 3 Jose Cisneros and jury was unable to and a mistrial was 2). 1 California Supreme Court, which denied the petition on July 8, 2 2015. (Dkt. Nos. 34-1, 37). 3 4 III. 5 FACTUAL BACKGROUND 6 7 The following facts, taken from the California Court of 8 Appeal’s unpublished decision on direct review, have not been 9 rebutted with clear and convincing evidence and are therefore 10 presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 11 F.3d 747, 749 n.1 (9th Cir. 2009). 12 13 In October 2009[,] Mario Frias, Jesus Nunez, 14 Arturo Frias, and Victor Vasquez were walking to a 15 party when they were approached by two men. 16 asked 17 responded, “Nowhere,” signifying that he was not a 18 gang member. 19 him 20 refused and slapped the man’s hand away when he 21 reached for Frias’s pocket. The man hit Mario Frias 22 in the head with a pistol. He went through Nunez’s 23 pockets and hit Nunez in the head with the gun. Mario the Frias where he was from, One and he The man demanded that Mario Frias give contents of his pockets. Mario Frias 24 25 Mario Frias ran across the street, but two men 26 jumped from a nearby car, demanded his possessions, 27 then attacked him when he claimed to have nothing 28 to give them. [Petitioner] was the driver of the 4 1 car; he remained in the car and gave orders to the 2 assailants, including an instruction to be sure to take 3 the men’s possessions. [Petitioner] was holding a shiny, 4 rounded object that was shaped like a bat and that made 5 a sound like a gun being loaded. 6 Nunez were beaten and robbed. 7 left in the car [Petitioner] drove. The Frias brothers and Three of the attackers 8 9 (Lodgment A1 at 2). 10 11 IV. 12 PETITIONER’S CLAIMS 13 14 The Petition raises seven grounds for federal habeas relief. 15 In Ground One, Petitioner contends he was denied due process of 16 law because there was insufficient evidence to prove his identity 17 as one of the robbers. (SAP at 5).3 18 alleges due 19 insufficient evidence to prove the gang enhancements since the 20 prosecution 21 activity” and the gang’s “primary activities.” 22 Three, Petitioner asserts the trial court denied him due process 23 of law when it instructed the jury that it could consider evidence 24 of Petitioner’s gang activity for the purpose of deciding identity, 25 which Petitioner claims was tantamount to a directed verdict that 26 Petitioner committed the robberies. he was denied failed to process establish a In Ground Two, Petitioner of law “pattern because of criminal (Id.). (Id. at 5-6). there was gang In Ground In Ground Four, 27 28 The Court refers to the SAP as if it was consecutively numbered in accordance with the Court’s electronic docket (Dkt. No. 41). 3 5 1 Petitioner alleges: (a) the trial court violated the Confrontation 2 Clause 3 testimony that Petitioner had told other officers he was a Lott 13 4 gang member named Fatty; and (b) admission of Detective Aguirre’s 5 expert testimony deprived Petitioner of due process of law. 6 at 6-16). 7 Aguirre 8 procedures to induce Arturo Frias to identify Petitioner as one of 9 the robbers. by admitting expert Detective Eduardo Aguirre’s (Id. In Ground Five, Petitioner maintains that Detective employed received gang unduly suggestive (Id. at 17-33). ineffective photographic identification In Ground Six, Petitioner alleges 10 he 11 counsel 12 violated the Confrontation Clause and failed to object to the 13 unduly suggestive photographic identification procedures. 14 33). 15 counsel rendered ineffective assistance by failing to raise Grounds 16 Four through Six. failed to assistance object that of counsel Detective when Aguirre’s his trial testimony (Id. at In Ground Seven, Petitioner asserts that his appellate (Id.). 17 18 V. 19 STANDARD OF REVIEW 20 21 The Antiterrorism and Effective Death Penalty Act of 1996 22 (“AEDPA”) “bars relitigation of any claim ‘adjudicated on the 23 merits’ in state court, subject only to the exceptions in §§ 24 2254(d)(1) and (d)(2).” 25 (2011). 26 grant habeas relief only if the state court adjudication was 27 contrary to or an unreasonable application of clearly established 28 federal law, as determined by the Supreme Court, or was based upon Harrington v. Richter, 562 U.S. 86, 98 Under AEDPA’s deferential standard, a federal court may 6 1 an unreasonable determination of the facts. 2 U.S.C. § 2254(d)). 3 deferential standard for evaluating state-court rulings, which 4 demands that state-court decisions be given the benefit of the 5 doubt[.]” 6 (citations and internal quotation marks omitted). Cullen Id. at 100 (citing 28 “This is a difficult to meet and highly v. Pinholster, 563 U.S. 170, 181 (2011) 7 8 Petitioner raised Grounds One through Three in his petition 9 for review to the California Supreme Court, and he raised Grounds 10 Four through Seven in his habeas corpus petition to the California 11 Supreme 12 citation to authority. 13 Court “looks through” the California Supreme Court’s silent denials 14 to th43e last reasoned decision as the basis for the state court’s 15 judgment. 16 there has been one reasoned state judgment rejecting a federal 17 claim, 18 rejecting the same claim rest upon the same ground.”); Cannedy v. 19 Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (“[W]e conclude that 20 Richter does not change our practice of ‘looking through’ summary 21 denials to the last reasoned decision – whether those denials are 22 on 23 omitted)), as amended, 733 F.3d 794 (9th Cir. 2013). 24 the Court will consider the California Court of Appeal’s reasoned 25 opinion addressing Grounds One through Three,4 and the Los Angeles 26 the Court, which denied the 28 without comment (Lodgments B1-B2; Dkt. Nos. 34-1, 37). or The See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where later merits unexplained or denials orders of upholding discretionary that judgment review.” or (footnote Therefore, In rejecting Ground One on the merits, the California Court of Appeal noted that Petitioner did not brief his contention that “‘the Cognitive Deficiencies of the One Victim Who Did Identify [Petitioner]’ warrant reversal,” and declined to further consider 4 27 petitions 7 1 County Superior Court’s opinion addressing Grounds Four and Six.5 2 Berghuis v. Thompkins, 560 U.S. 370, 380 (2010). 3 no state court has provided a reasoned decision as to Ground Seven, 4 this Court must conduct “an independent review of the record” to 5 determine whether the decision to deny those claims was contrary 6 to, or an unreasonable application of, clearly established federal 7 law. 8 Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). 9 Court will address Ground Five de novo.6 However, because Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014); Finally, the See Thompkins, 560 U.S. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that contention. (Lodgment A1 at 4 n.2). Petitioner briefly mentions witness Arturo Frias’s “mental and cognitive abilities” in raising Ground One before this Court. (SAP at 5). Respondent contends that this portion of Ground One is procedurally defaulted. (Ans. Mem. at 5-8). However, the Court does not consider Petitioner’s stray comment as raising a separate argument. Rather, the Court considers Ground One to raise a single claim that there was insufficient evidence to prove his identity as one of the robbers (see SAP at 5), a claim the California Court of Appeal rejected on the merits. In any event, the Court retains the discretion to deny claims on the merits even if the claims are alleged to be procedurally defaulted. See Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) (“While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits.”); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“[C]ourts are empowered to, and in some cases should, reach the merits of habeas petitions if they are . . . clearly not meritorious despite an asserted procedural bar.”). 5 Respondent asserts that Grounds Four through Seven are untimely. (Supp. Ans. Mem. at 4-16). However, the Court will not address this contention because the Court retains the discretion to address and deny claims on the merits even if the claims are alleged to be untimely. See Cooper v. Calderon, 274 F.3d 1270, 1275 n.3 (9th Cir. 2001) (per curiam) (denying petition on merits rather than remanding to consider equitable tolling); Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (court may properly deny petition on merits rather than reaching “the complex questions lurking in the time bar of the AEDPA.”). 6 The Superior Court, citing In re Waltreus, 62 Cal. 2d 218 (1965), rejected Ground Five because “[t]he suggestiveness of the lineup 8 1 at 390 (“Courts can . . . deny writs of habeas corpus under § 2254 2 by engaging in de novo review when it is unclear whether AEDPA 3 deference applies, because a habeas petitioner will not be entitled 4 to a writ of habeas corpus if his or her claim is rejected on de 5 novo review[.]”); Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir. 6 2010) (affirming denial of habeas corpus petition when claim failed 7 even under de novo review); Frantz v. Hazey, 533 F.3d 724, 735-37 8 (9th Cir. 2008) (en banc) (a federal habeas court can review 9 constitutional issues de novo before performing a § 2254(d)(1) 10 analysis).7 11 12 VI. 13 DISCUSSION 14 15 16 A. Petitioner Is Not Entitled To Habeas Relief On His Insufficient Evidence Claims 17 18 In Ground One, Petitioner contends there was insufficient 19 evidence to prove his identity as one of the robbers because 20 witnesses 21 22 23 24 25 26 27 28 provided inconsistent testimony, a suggestive procedure was raised on appeal and cannot be raised again [in a] petition for writ of habeas corpus.” (Dkt. No. 34-1 at 39); see also Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004) (“Waltreus holds that issues actually raised and rejected on appeal cannot be raised anew in a state petition for writ of habeas corpus.”). Yet on direct appeal, Petitioner only challenged the alleged suggestive lineup procedures in relation to his insufficient evidence claim. (See Lodgments A1, A5, B1). He did not separately argue that the allegedly tainted lineup was itself a due process violation. (Id.). 7 The Court emphasizes that for the reasons discussed in this Memorandum Decision and Order, the pending SAP would be denied even if entirely subject to de novo review. Thompkins, 560 U.S. at 390. 9 1 identification procedure was employed, and Arturo Frias, the only 2 witness to identify Petitioner, had limited cognitive abilities. 3 (SAP 4 insufficient evidence to support the gang enhancements because only 5 one of the two predicate acts presented to the jury was committed 6 by a member of Alcoholics Causing Ruckus (“ACR”), and there was 7 insufficient 8 (Id.). at 5). In Ground evidence to Two, Petitioner determine ACR’s alleges primary there was activities. Petitioner’s claims are without merit. 9 10 1. California Court of Appeal’s Opinion 11 12 13 The California Court of Appeal rejected Petitioner’s challenge to the sufficiency of the evidence of identity, stating: 14 15 Viewed in the light most favorable to the 16 prosecution, we conclude that the evidence is sufficient 17 to sustain [Petitioner’s] conviction. 18 Frias positively identified [Petitioner] as the driver 19 of the car involved in the robberies. 20 identified [Petitioner] as the driver from a photographic 21 six-pack 22 [Petitioner] implicitly acknowledged his involvement in 23 the crimes: in jail, three months after the robbery, he 24 wrote a letter to an associate expressing confidence that 25 “most 26 dismissed [be]cause I had no gun.” 27 private investigator was going to prompt “that fool” — 28 the victim who had identified him — “to say that I hit in likely the days I[’]m after getting 10 the At trial, Arturo He had previously robbery. the gun Moreover, enhan[ce]ment He wrote that a 1 him up in a party a month before the rob[b]ery and 2 hopefully he does because I was busted a month before 3 and if he does say that I[’]m going to ask for them to 4 remove his testimony and if that happen[]s then I’ll be 5 firme [be]cause he[’]s the only one who I.D. [identified] 6 me. 7 should be ok.” 8 in this case. The 2 other vict[i]ms never saw me so I think I This evidence supports the jury’s verdict 9 10 * The * circumstances * of the identification of 11 [Petitioner] were addressed at trial, and the jury heard 12 evidence 13 prejudicial statements made by the officer conducting 14 the photographic lineup. 15 the circumstances of the identification compromised that 16 identification. 17 record 18 identification. 19 conviction.’ 20 the identification and its weight are explored at length 21 at trial, where eyewitness identification is believed by 22 the trier of fact, that determination is binding on the 23 reviewing court. 24 is sufficient for proof of any fact.” 25 identification 26 established that he was present and involved in the 27 robberies 28 cannot from the Frias about suggestive and The jury did not conclude that “In the instant case, ‘there is in the inescapable fact of in-court eyewitness That alone is sufficient to sustain the Next, when the circumstances surrounding and say Arturo Third, the evidence of a single witness evidence, indicated that the Beyond this [Petitioner’s] consciousness evidence 11 was of own words guilt. insufficient We to 1 establish 2 robberies. that [Petitioner] participated in the 3 4 (Lodgment A1 at 3-5 (citation omitted)). 5 6 The California Court of Appeal also determined there was 7 sufficient evidence to support the gang enhancements, stating: 8 9 The evidence was sufficient to support the true 10 finding on the gang enhancement allegation. 11 prosecution attempted to establish the requisite pattern 12 of criminal activity with respect to ACR with evidence 13 of crimes committed by people named Andrew Rodriguez and 14 Roger Mendoza. 15 expert 16 examination in which Aguirre acknowledged that Rodriguez 17 had maintained he was a member of an associated gang, 18 Lott 13, and that another officer, purportedly the source 19 of information that Rodriguez was an ACR member, had 20 actually written down on an investigation card (a “gang 21 hard card”) that Rodriguez claimed to be a member of Lott 22 13. 23 Rodriguez to be an ACR member based on having spoken with 24 Rodriguez 25 Regardless of whether Rodriguez admitted to being a 26 member of ACR, the jury could reasonably conclude that 27 he was an ACR member. 28 being tried may also constitute one of the predicate witness [¶] The [Petitioner] points to testimony of gang Detective Eduardo Aguirre on cross- Aguirre, however, also testified that he understood and speaking to people who know him. Moreover, because the offense 12 1 offenses for the gang enhancement statute, even if the 2 Rodriguez evidence were to be considered insufficient, 3 [Petitioner] 4 insufficient evidence of two predicate acts to support 5 the gang enhancement allegation. still has not shown that there was 6 7 Next, [Petitioner] contends that there was 8 insufficient evidence that criminal acts were one of the 9 primary activities of ACR because Aguirre only listed a 10 series of criminal acts the gang had been involved in as 11 a response to the prosecutor’s question asking him to 12 state the primary activities of ACR. [Petitioner] claims 13 the evidence was deficient because Aguirre did not state 14 that criminal activity was one of the gang’s primary 15 activities, 16 Aguirre was asked, “What are the primary activities of 17 ACR?” and responded, “ACR, over the years, they've been 18 involved in shootings, robberies, stolen vehicles, gun 19 possessions, sales of narcotics, vandalism.” 20 to attach talismanic significance to the words “primary 21 activities”: the jury was entitled to understand this 22 response as an enumeration responsive to the specific 23 question concerning the gang’s primary activities. but 24 we find * this * argument unpersuasive. We decline * 25 Here, . . . Aguirre testified that he was familiar 26 with the gang and that he had investigated shootings and 27 robberies 28 identified a number of specific criminal offenses in that ACR members 13 had committed, and he 1 response 2 activities. This testimony was supported by the evidence 3 of the charged offense, a coordinated street robbery 4 involving 5 testified about one ACR member’s conviction for gun 6 possession and another member’s conviction for robbery. 7 There 8 enhancement allegation. was to a question multiple ACR sufficient about the members. evidence gang’s Second, to support primary Aguirre the gang 9 10 (Lodgment A1 at 5-7 (citations omitted)). 11 12 2. Analysis 13 14 To review the sufficiency of the evidence in a habeas corpus 15 proceeding, the court must determine “whether, after viewing the 16 evidence in the light most favorable to the prosecution, any 17 rational trier of fact could have found the essential elements of 18 the crime beyond a reasonable doubt.” 19 U.S. 307, 319 (1979) (emphasis omitted); Parker v. Matthews, 132 20 S. Ct. 2148, 2152 (2012) (per curiam); see also Coleman v. Johnson, 21 132 S. Ct. 2060, 2065 (2012) (per curiam) (“[T]he only question 22 under Jackson is whether [the jury’s] finding was so insupportable 23 as to fall below the threshold of bare rationality.”). 24 reviewing court must consider all of the evidence admitted by the 25 trial court,’ regardless [of] whether that evidence was admitted 26 erroneously,” McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per 27 curiam) (citation omitted), all evidence must be considered in the 28 light most favorable to the prosecution, Lewis v. Jeffers, 497 U.S. 14 Jackson v. Virginia, 443 “‘[A] 1 764, 782 (1990); Jackson, 443 U.S. at 319, and if the facts support 2 conflicting inferences, reviewing courts “must presume – even if 3 it does not affirmatively appear in the record – that the trier of 4 fact resolved any such conflicts in favor of the prosecution, and 5 must defer to that resolution.” 6 v. Smith, 132 S. Ct. 2, 6 (2011) (per curiam). 7 AEDPA, federal courts must “apply the standards of [Jackson] with 8 an additional layer of deference.” 9 1262, 1274 (9th Cir. 2005); Boyer v. Belleque, 659 F.3d 957, 964- Jackson, 443 U.S. at 326; Cavazos Furthermore, under Juan H. v. Allen, 408 F.3d 10 65 (9th Cir. 2011). These standards are applied to the substantive 11 elements of the criminal offense under state law. 12 U.S. at 324 n.16; Boyer, 659 F.3d at 964; see also Johnson, 132 S. 13 Ct. at 2064 (“Under Jackson, federal courts must look to state law 14 for the substantive elements of the criminal offense, but the 15 minimum amount of evidence that the Due Process Clause requires to 16 prove the offense is purely a matter of federal law.” (citation 17 and quotation marks omitted)). Jackson, 443 18 19 a. Robbery 20 21 Petitioner does not challenge the sufficiency of the evidence 22 to prove that a robbery was committed,8 but instead argues there 23 24 25 26 27 28 California law defines robbery as “the taking of personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property.” People v. Clark, 52 Cal. 4th 856, 943 (2011) (citation and internal quotation marks omitted); P.C. § 211; see also People v. Magee, 107 Cal. App. 4th 188, 195 n.4 (2003) (“The elements of robbery are (1) the victim had possession of property of some value, (2) the property was 8 15 1 was insufficient evidence for the jury to conclude he was one of 2 the robbers. (SAP at 5). The Court disagrees with this contention. 3 4 The jury heard evidence that on October 3, 2009, Mario Frias 5 (“Mario”), Arturo Frias (“Arturo”), Jesus Nunez and Victor Vazquez 6 were walking down a street when they were confronted by two men, 7 one of whom was armed with a pistol. 8 1830-32, 1846, 2143). 9 were from, which Mario and Nunez understood as asking if they were “gang 11 “nowhere.” 12 “[l]et me have whatever you have in your pockets” and reached for 13 Mario’s pockets, but Mario slapped the man’s hands away and the 14 man hit Mario in the head with the pistol. 15 ran across the street to distract the men from his brothers. 16 1233-34). 17 (RT 1234-35). 18 while the driver remained inside and told the other men to “[m]ake 19 sure you get their stuff.” 20 demanded Mario give them what he had in his pockets and, after he 21 refused, they beat him, knocked him to the ground, and took his 23 24 25 26 27 28 or The armed man asked the group where they 10 22 member[s] (RT 1228-33, 1561, 1565-66, something,” and Mario (RT 1231-32, 1246, 1565). and Nunez responded The man then told Mario (RT 1231, 1233). Mario (RT At that point, Mario saw a green Toyota Camry pull up. Two men jumped out of the car and approached Mario (RT 1235, 1250, 1845). The two men taken from the victim or his or her personal presence, (3) the property was taken against the will of the victim, (4) the taking was by either force or fear, and (5) the property was taken with the specific intent to permanently deprive the victim of the property.”). All robberies are second degree unless otherwise specified in P.C. § 212.5(a) (first-degree robberies include, among other things, robbery of an inhabited dwelling house) or P.C. § 212.5(b) (“Every robbery of any person while using an automated teller machine or immediately after the person has used an automated teller machine and is in the vicinity of the automated teller machine is robbery of the first degree.”). P.C. § 212.5(c). 16 1 wallet. 2 were attacked by the two men who initially approached them, and 3 Arturo’s wallet was taken. 4 50). 5 1239-40, 1263, 2149). 6 the robbery and identified Petitioner as that person.9 7 46, 1851-52, 2108, 2120-21, 2183-84, 3029-30). (RT 1236-38). While this was happening, Arturo and Nunez (RT 1238-39, 1565-67, 1843-44, 1849- The attackers got into the Camry, which drove away. (RT Arturo observed the Camry’s driver during (RT 1845- 8 9 Additionally, while incarcerated, Petitioner wrote several 10 letters that were discovered in a search of his cell. (RT 1556- 11 59). 12 Petitioner described a plan to discredit Arturo’s testimony and 13 stated that Arturo was the only one to identify Petitioner, and 14 that if his testimony was removed Petitioner the “2 other two 15 victims never saw me[,] so I think that I should be ok.” 16 Petitioner also noted that “most likely [he was] getting the gun 17 enhancement dismissed [because] I had no gun.” 18 subsequent undated letter, Petitioner urged friends to manufacture 19 evidence to exonerate him of the gang enhancement by “show[ing] 20 that we [ACR and Lott 13] don’t get along.” In one of these letters, which was dated December 30, 2009, (CT 270). (Id.). In a (CT 272-73). 21 22 Based on Arturo’s identification of Petitioner and 23 Petitioner’s “own words establish[ing] that he was present and 24 involved 25 guilt[,]” the California Court of Appeal held sufficient evidence in the robberies and indicat[ing] consciousness of 26 27 28 Arturo referred to the vehicle as a Camaro, but identified the picture of the Camry as being “exactly the car that night.” (RT 1845, 1255-56, 2133). 9 17 1 supported the jury’s conclusion that Petitioner participated in 2 the robberies. 3 conclusion, arguing the evidence against him was insufficient 4 because there were inconsistencies in the witnesses’ description 5 of the robbers and the only witness to identify Petitioner – Arturo 6 – had cognitive difficulties. 7 not rendered insufficient simply because there are discrepancies 8 in the eyewitnesses’ descriptions of the robber[s].”10 9 States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996). (Lodgment A1 at 3-5). Petitioner disputes this (SAP at 5). However, “evidence is United Rather, “it is 10 the responsibility of the jury - not the court - to decide what 11 conclusions should be drawn from evidence admitted at trial[,]” 12 Smith, 132 S. Ct. at 4; Matthews, 132 S. Ct. at 2152, and the Court 13 “‘must 14 credibility of witnesses, resolve evidentiary conflicts, and draw 15 reasonable inferences from proven facts by assuming that the jury 16 resolved all conflicts in a manner that supports the verdict.’” 17 Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997) (quoting Walters 18 v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)). 19 surrounding Arturo’s identification of Petitioner were thoroughly 20 explored during Petitioner’s trial and were extensively argued to 21 the jury, which nevertheless convicted Petitioner.11 22 respect the province of 24 25 26 27 28 jury to determine the Here, the issues (See, e.g., Petitioner also complains that Arturo’s identification was based on an impermissibly suggestive pretrial identification procedure. (SAP at 5). As discussed below, this claim is without merit. In any event, as noted above, in reviewing the sufficiency of the evidence, the Court considers all of the evidence admitted, including evidence allegedly erroneously admitted. Brown, 558 U.S. at 131. 11 Arturo also identified Rodriguez and Cisneros as involved in the robbery, but the jury did not convict these two defendants. (RT 1832, 1843-48, 4813). This does not undermine the sufficiency of the evidence against Petitioner. See United States v. 10 23 the 18 1 RT 1811-14, 1826, 1873-74, 1876, 1882, 1885-86, 1899-1900, 2103- 2 04, 2108-10, 2114-19, 2438-96, 2702-63, 2768-77, 3009-12, 3013-23, 3 3947-4007). 4 determination that there was sufficient evidence to support the 5 jury’s conclusion that Petitioner participated in the robberies 6 was not contrary to, or an unreasonable application of, clearly 7 established 8 Chappell, 793 F.3d 1092, 1101 (9th Cir. 2015), cert. denied, 136 9 S. Ct. 1446 (2016); see also Ngo v. Giurbino, 651 F.3d 1112, 1114 10 (9th Cir. 2011) (“‘Circumstantial evidence and inferences drawn 11 from it may be sufficient to sustain a conviction.’” (citations 12 omitted)); Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) 13 (Jackson standard satisfied based on victim’s testimony since there 14 was no indication testimony was “physically impossible and simply 15 could not have occurred as described”); United States v. McClendon, 16 782 F.2d 785, 790 (9th Cir. 1986) (single eyewitness’s in-court 17 identification 18 sufficient 19 States v. Larios, 640 F.2d 938, 940 (9th Cir. 1981) (“The testimony 20 of one witness . . . is sufficient to uphold a conviction.”); Oliva 21 v. 22 (“‘Identification of the defendant by a single eyewitness may be 23 sufficient to prove the defendant’s identity as the perpetrator of 24 McClendon, 782 F.2d 785, 790 (9th Cir. 1986) (where eyewitness identified two men – McClendon and Higgins – as present in getaway car, and jury convicted McClendon but acquitted Higgins, “the fact that the jury was less convinced of Higgins’ guilt may be curious, [but] it does not undermine our finding that a ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ from the evidence presented against McClendon.” (quoting Jackson, 443 U.S. at 319)). 25 26 27 28 Under federal to Hedgpeth, of these law. 600 Jackson, McClendon support F. circumstances, as 2d 19 U.S. present McClendon’s Supp. 443 the in robbery 1067, at 1087 state 319; getaway court’s Boyer car conviction); (C.D. Cal. v. was United 2009) 1 a crime.’” (citations omitted)), affirmed by, 375 F. App’x 697 (9th 2 Cir. 2010). 3 4 b. Gang Enhancement 5 6 The California Street Terrorism Enforcement and Prevention 7 Act (“STEP Act”), P.C. §§ 186.20 et seq., is a statutory scheme 8 enacted to further the “eradication of criminal activity by street 9 gangs[.]” P.C. § 186.21 (2010). The STEP Act “imposes various 10 punishments 11 including a sentencing enhancement on those who commit felonies 12 ‘for the benefit of, at the direction of, or in association with 13 any criminal street gang.’”12 14 (2015) (quoting P.C. § 186.22(b); italics omitted). 15 defines 16 association of three or more persons with a common name or common 17 identifying sign or symbol; (2) [that] has as one of its primary 18 activities the commission of one or more of the criminal acts 19 enumerated in the statute;[13] and (3) includes members who either 20 21 22 23 24 25 26 27 28 a on individuals “criminal street who commit gang-related crimes — People v. Prunty, 62 Cal. 4th 59, 67 gang” as “(1) . . . The STEP Act an ongoing To warrant a gang enhancement, California law requires the prosecutor prove two elements beyond a reasonable doubt. First, the prosecutor must show that Petitioner committed a felony “for the benefit of, at the direction of, or in association with any criminal street gang[.]” P.C. § 186.22(b)(1) (2010); Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (per curiam). Second, the prosecutor must show that Petitioner committed the crime “with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]” P.C. § 186.22(b)(1) (2010); Emery, 643 F.3d at 1214. 13 At the time of Petitioner’s offenses, the enumerated criminal acts consisted of: assault with a deadly weapon or by means of force likely to produce great bodily injury; robbery; unlawful homicide or manslaughter; the sale, possession for sale, transportation, manufacture, offer for sale, or offer to 12 20 1 individually or collectively have engaged in a ‘pattern of criminal 2 gang activity’ by committing, attempting to commit, or soliciting 3 two or more of the enumerated offenses (the so-called ‘predicate 4 offenses’)[14] during the statutorily defined period.”15 5 Hernandez, 33 Cal. 4th 1040, 1047 (2004) (footnotes added); People 6 v. Sengpadychith, 26 Cal. 4th 316, 319-20 (2001). People v. 7 8 In Ground Two, Petitioner alleges there was insufficient 9 evidence to support his gang enhancements because the prosecution 10 did not demonstrate the predicate acts or primary activities 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 manufacture controlled substances; shooting at an inhabited dwelling or occupied motor vehicle; discharging or permitting the discharge of a firearm from a motor vehicle; arson; the intimidation of witnesses and victims; grand theft; grand theft of any firearm, vehicle, trailer, or vessel; burglary; rape; looting; money laundering; kidnapping; mayhem; aggravated mayhem; torture; felony extortion; felony vandalism; carjacking; the sale, delivery, or transfer of a firearm; possession of a pistol, revolver, or other firearm capable of being concealed upon the person; threats to commit crimes resulting in death or great bodily injury; theft and unlawful taking or driving of a vehicle; prohibited possession of a firearm; carrying a concealed firearm; and carrying a loaded firearm. P.C. § 186.22(e)(1-25), (31-33) (2010). 14 At the time of Petitioner’s offenses, a “pattern of criminal gang activity” included the enumerated criminal acts listed in note 13 above as well as: felony theft of an access card or account information; counterfeiting, designing, using, or attempting to use an access card; felony fraudulent use of an access card or account information; unlawful use of personal identifying information to obtain credit, goods, services, or medical information; and wrongfully obtaining Department of Motor Vehicles documentation. P.C. § 186.22(e) (26-30) (2010). 15 To fall within the statutorily defined period, at least one of the predicate offenses must have occurred “after the effective date” of the STEP Act, September 26, 1988, and the last of the predicate offenses must have occurred “within three years after a prior offense.” P.C. § 186.22(e); People v. Loeun, 17 Cal. 4th 1, 8 (1998). 21 1 necessary to prove that ACR was a criminal street gang. 2 5). (SAP at The Court disagrees. 3 4 Expert witness Detective Eduardo Aguirre testified he has been 5 a police officer for a little over 19 years, during which time he 6 has worked extensively in gang units.16 7 participated in a 40-hour course on gang subcultures and various 8 seminars regarding gangs. 9 employment, Detective Aguirre has investigated over 500 murders 10 and thousands of shootings and robberies, and he has arrested gang 11 members for various crimes. 12 to gang members on a daily basis, talks to gang investigators in 13 his unit and in nearby cities to keep up on gang intelligence, and 14 is out in the community daily to keep up with gang trends and 15 rivalries. 16 talked to thousands of gang members about gang culture. 17 Detective Aguirre testified he is familiar with Alcoholics Causing 18 Ruckus or ACR, which began as a tagging crew but “elevated their 19 status to an actual gang” approximately four or five years before 20 trial. 21 investigated shootings and robberies that involved ACR members. 22 (RT 2195). 23 10 documented members, but are “at least 25 members deep.” (RT 2188-89). (RT 2188, 2192, 2779-81). (RT 2189-90). (RT 2190-91). (RT 2192-95, 2800). He has also During his Detective Aguirre talks Detective Aguirre estimated he has (Id.). Detective Aguirre stated he had Detective Aguirre indicated that ACR has approximately (RT 24 25 26 27 28 Detective Aguirre explained he was originally hired by the City of Compton, and worked in its gang unit for eight years. (RT 218889). He then joined the Los Angeles County Sheriff’s Department, and had spent about eight years in its gang unit at the time of trial. (RT 2189). 16 22 1 2195, 2801). Detective Aguirre described ACR’s claimed territory,17 2 indicated ACR has a common hand sign – the letters ACR – and 3 identified ACR’s rivals. 4 to a question regarding ACR’s primary activities, Detective Aguirre 5 responded “ACR, over the years, they’ve been involved in shootings, 6 robberies, stolen vehicles, gun possessions, sales of narcotics, 7 [and] vandalism.” 8 also presented “evidence of crimes committed by people named Andrew 9 Rodriguez and Roger Mendoza.”18 (RT 2196-98, 2803-05, 2819). (RT 2198; see also RT 2806). In response The prosecution (Lodgment A1 at 5; see also RT 10 2198-99). Additionally, Detective Aguirre opined that Petitioner 11 was an ACR gang member known as Fatty. 12 Aguirre based this opinion on items he found in Petitioner’s home 13 as well as letters recovered from Petitioner’s jail cell. 14 2200-02). (RT 2199-2201). Detective (RT 15 16 Petitioner initially contends the evidence was insufficient 17 to support his conviction because “[o]nly one of two predicate acts 18 was committed by a member of ACR,” as Andrew Rodriguez was a Lott 19 13 gang member and not an ACR member.19 (SAP at 5). This contention 20 21 22 23 24 25 26 27 28 Detective Aguirre explained that ACR’s territory is within the territory claimed by Lott 13, a gang that allows ACR to operate in its territory. (RT 2195-97). 18 Based on certified court records, Detective Aguirre testified that Rodriguez’s crime was gun possession and Mendoza’s crime was robbery. (RT 2198-99). Detective Aguirre identified Rodriguez as associated with ACR, and noted that he committed his crime with a Lott 13 gang member. (Id.). Detective Aguirre described Mendoza as an ACR gang member who committed his crime with a Lott 13 gang member. (RT 2199, 2423). 19 The SAP does not specify the predicate act to which Petitioner refers, but he argued on direct review that Andrew Rodriguez was a Lott 13 member, not an ACR member, and the Court assumes he intends the same argument here. (See Lodgment A5 at 41; Lodgment B1 at 11-12; Lodgment A1 at 5-6). To the extent Petitioner intends to 17 23 1 fails. 2 Rodriguez was a Lott 13 gang member, Detective Aguirre testified 3 he worked on Rodriguez’s case and that in speaking to Rodriguez 4 and people who knew him, Rodriguez “was actually ACR[,]” (RT 2807- 5 10), and the jury was entitled to rely on such testimony. 6 132 S. Ct. at 4; Matthews, 132 S. Ct. at 2152; Jones, 114 F.3d at 7 1008; see also Hernandez, 33 Cal. 4th at 1047-48 (“[T]o prove the 8 elements of the criminal street gang enhancement, the prosecution 9 may . . . present expert testimony on criminal street gangs.”). First, although there was evidence presented that Andrew even setting aside the Rodriguez evidence, Smith, 10 Second, there was 11 sufficient evidence “establishing a ‘pattern of criminal gang 12 activity,’” since “the charged offense may serve as a predicate 13 offense.” 14 Cal. 2010); Sengpadychith, 26 Cal. 4th at 323; People v. Gardeley, 15 14 Cal. 4th 605, 621-25 (1997), disapproved of in part on other 16 grounds, People v. Sanchez, 63 Cal. 4th 665 (2016); see also People 17 v. Loeun, 17 Cal. 4th 1, 11 (1998) (“[T]he prosecution can establish 18 the requisite ‘pattern’ exclusively through evidence of crimes 19 committed contemporaneously with the charged incident.”). Ratliff v. Hedgepeth, 712 F. Supp. 2d 1038, 1061 (C.D. 20 21 Petitioner also asserts that the prosecution improperly relied 22 on Detective 23 activities Aguirre’s because testimony Detective to Aguirre establish provided ACR’s no primary evidence to 24 25 26 27 28 raise any other argument beyond that discussed herein, his conclusory contentions are insufficient to warrant habeas corpus relief. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (A “cursory and vague claim cannot support habeas relief.”); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). 24 1 support his testimony. 2 California Court of Appeal noted, Detective Aguirre based his 3 testimony on, inter alia, his investigations of shootings and 4 robberies involving ACR members as well as “evidence of the charged 5 offense, 6 members” and Rodriguez’s and Mendoza’s convictions. 7 at 7; see also RT 2195-99). 8 than 9 Sengpadychith, 26 Cal. 4th at 324 (expert testimony can provide 10 sufficient proof of gang’s primary activities); Gardeley, 14 Cal. 11 4th at 620 (Detective’s testimony regarding gang and its primary 12 activities, which was based on “conversations with the defendants 13 and with other [gang] members, his personal investigations of 14 hundreds 15 information 16 agencies[,]” was sufficient evidence of gang’s primary activities); 17 People v. Margarejo, 162 Cal. App. 4th 102, 107–08 (2008) (gang 18 expert’s testimony regarding defendant’s gang’s primary activities 19 provided sufficient evidence to support jury’s conclusion that 20 defendant’s gang met the statutory definition of a criminal street 21 gang); People v. Martinez, 158 Cal. App. 4th 1324, 1330 (2008) 22 (Gang 23 investigations and personal conversations with members, and reviews 24 of reports suffices to establish the foundation for his testimony” 25 regarding the gang’s primary activities); People v. Vy, 122 Cal. 26 App. 4th 1209, 1226 (2005) (“[P]roof of the ‘primary activities’ 27 element was satisfied through testimony by a police gang expert, 28 Detective Ta. a (SAP at 5; Reply at 10). coordinated sufficient of to expert’s ACR’s committed his “eight robbery involving multiple ACR (Lodgment A1 Detective Aguirre’s testimony is more establish crimes from street However, as the by colleagues years primary gang and dealing activities. members, various with the law as well See as enforcement gang, including He gave significant expert testimony that [the gang] 25 1 was engaged in criminal actions that constituted predicate crimes 2 under the gang statute.”); People v. Duran, 97 Cal. App. 4th 1448, 3 1465 (2002) (“The testimony of a gang expert, founded on his or 4 her conversations with gang members, personal investigation of 5 crimes committed by gang members, and information obtained from 6 colleagues in his or her own and other law enforcement agencies, 7 may be sufficient to prove a gang’s primary activities.”). 8 9 Accordingly, the state court’s rejection of Ground Two was 10 neither contrary to, or an unreasonable application of, clearly 11 established federal law. 12 13 14 B. Petitioner Is Not Entitled To Habeas Relief On His Instructional Error Claim 15 16 Instructional error warrants federal habeas relief only if 17 the “‘instruction by itself so infected the entire trial that the 18 resulting conviction violates due process[.]’” 19 Sarausad, 555 U.S. 179, 191 (2009) (citation and internal quotation 20 marks omitted); Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per 21 curiam). 22 Instead, Petitioner must show there was a “reasonable likelihood 23 that the jury has applied the challenged instruction in a way that 24 violates the Constitution.” 25 and internal quotation marks omitted); Sarausad, 555 U.S. at 190- 26 91; see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) (“Before a 27 federal court may overturn a conviction resulting from a state 28 trial in which [an allegedly faulty] instruction was used, it must Waddington v. The instruction must be more than merely erroneous. McNeil, 541 U.S. at 437 (citations 26 1 be established not merely that the instruction is undesirable, 2 erroneous or even ‘universally condemned,’ but that it violated 3 some right which was guaranteed to the defendant by the Fourteenth 4 Amendment.”). 5 instruction ‘may not be judged in artificial isolation,’ but must 6 be considered in the context of the instructions as a whole and 7 the trial record.” 8 (citation omitted); Sarausad, 555 U.S. at 191. Where the alleged 9 error is the failure to give an instruction, the burden on the Further, “[i]t is well established that the Estelle v. McGuire, 502 U.S. 62, 72 (1991) 10 Petitioner is “‘especially heavy.’” Sarausad, 555 U.S. at 191 11 (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). 12 if a constitutional error occurred, federal habeas relief remains 13 unwarranted unless the error caused prejudice, i.e., unless it had 14 a substantial and injurious effect or influence in determining the 15 jury’s verdict. 16 curiam); Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Moreover, Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per 17 18 In Ground Three, Petitioner argues that the trial court 19 unconstitutionally directed a verdict against him on the robbery 20 counts by instructing the jury that it could conclude that he was 21 one of the robbers “on the sole basis that Petitioner’s alleged 22 membership in a gang established his identity in the offenses.” 23 (SAP at 6). 24 modification of model jury instruction CALCRIM No. 1403 to allow 25 the jury to consider evidence of gang activity in deciding “[t]he 26 identity of the person who committed the” robberies. 27 Reporter’s Transcript (Nov. 29, 2010) (“ART”) at 15-16; CT 357). 28 \\ Specifically, Petitioner challenges the trial court’s 27 (Augmented 1 1. Background 2 3 4 The California Court of Appeal found the following facts underlying this claim: 5 6 The jury was instructed with a version of CALCRIM 7 No. 1403 that directed jurors that they could consider 8 evidence of gang activity for the limited purpose of 9 deciding intent, purpose, and knowledge relative to the 10 gang enhancement allegation; motive; or “The identity of 11 the person who committed the crimes.”[20] 12 authorized 13 credibility 14 information relied upon by an expert witness in reaching 15 an opinion. to use and the when evidence it to considered The jury was evaluate the witness facts The jury was instructed not to consider the 16 17 20 The modified version of CALCRIM No. 1403 stated: 18 19 20 21 22 23 24 25 26 27 28 and You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gangrelated allegations, or the defendant had a motive to commit the crimes charges, or the identity of the person who committed the crimes. [¶] You may also consider this evidence when you evaluate the credibility or believability of witnesses and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime. (ART at 15-16; CT 357). 28 1 gang 2 disposition, or for any other purpose. evidence as evidence of a bad character or 3 4 (Lodgment A1 at 9 (footnote added)). 5 6 2. California Court of Appeal’s Opinion 7 8 9 The California Court of Appeal rejected Petitioner’s challenge to the modified instruction, stating: 10 11 There is no reasonable likelihood that the jury 12 improperly 13 suggests. 14 that 15 determined the question of identity; it did not compel 16 a conclusion of identity if the jury found [Petitioner] 17 to 18 conjunction with CALCRIM No. 315, which instructed the 19 jury on all the considerations involved in evaluating 20 witness 21 likelihood that the jury relied upon this instruction to 22 use the gang evidence improperly. it be a applied the instruction [Petitioner] This limiting instruction informed the jury could gang consider member. identifications, the gang evidence Particularly we 23 24 as (Lodgment A1 at 9-10). 25 26 27 28 29 find when no when read it in reasonable 1 3. Analysis 2 3 A trial judge “may not direct a verdict for the State, no 4 matter how overwhelming the evidence.” 5 U.S. 275, 277 (1993); see also United States v. Martin Linen Supply 6 Co., 430 U.S. 564, 572-73 (1977) (A “trial judge is prohibited from 7 entering a judgment of conviction or directing the jury to come 8 forward with such a verdict, regardless of how overwhelmingly the 9 evidence may point in that Sullivan v. Louisiana, 508 direction.” (citations omitted)). 10 Rather, the Sixth and Fourteenth Amendments “require criminal 11 convictions to rest upon a jury determination that the defendant 12 is guilty of the crime with which he is charged, beyond a reasonable 13 doubt.” 14 also In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process 15 Clause protects the accused against conviction except upon proof 16 beyond a reasonable doubt of every fact necessary to constitute 17 the 18 relieving States of this burden violate a defendant’s due process 19 rights.” 20 curiam); Francis v. Franklin, 471 U.S. 307, 326 (1985); see also 21 Evanchyk v. Stewart, 340 F.3d 933, 939 (9th Cir. 2003) (“It is a 22 violation of due process for a jury instruction to omit an element 23 of the crime.”). United States v. Gaudin, 515 U.S. 506, 509-10 (1995); see crime with which he is charged.”). “Jury instructions Carella v. California, 491 U.S. 263, 265 (1989) (per 24 25 Here, contrary to Petitioner’s contention, the modified 26 version of CALCRIM 1403 did not direct a verdict against Petitioner 27 on the robbery counts or otherwise lessen the prosecution’s burden 28 of proof. Rather, as the California Court of Appeal recognized, 30 1 the “limiting instruction informed the jury that it could consider 2 the gang evidence when it determined the question of identity; it 3 did 4 [Petitioner] to be a gang member.” 5 the jury was instructed, inter alia, on the elements of robbery 6 and that the prosecution has the burden of proving those elements 7 beyond a reasonable doubt. 8 also 9 testimony, and particularly that “[t]he People have the burden of 10 proving beyond a reasonable doubt that it was the defendant who 11 committed the crime. 12 must find the defendant not guilty.” 13 Accordingly, 14 prosecution’s burden of proof, Victor v. Nebraska, 511 U.S. 1, 14- 15 15 (1994); Lisenbee v. Henry, 166 F.3d 997, 999 (9th Cir. 1999), 16 and nothing in CALCRIM 1403 altered that burden. 17 presumed to follow its instructions,” Weeks v. Angelone, 528 U.S. 18 225, 234 (2000); Zafiro v. United States, 506 U.S. 534, 540-41 19 (1993), and to attend to the particular language of an instruction, 20 United States v. Olano, 507 U.S. 725, 740 (1993); Franklin, 471 21 U.S. at 324 n.9, Petitioner has not demonstrated a constitutional 22 violation. 23 232 F.3d 704, 714-15 (9th Cir. 2000) (A jury instruction on how to 24 evaluate evidence did not shift the prosecution’s burden of proof 25 in any way. 26 that the prosecution bore the burden of proving every element of 27 the offense beyond a reasonable doubt. 28 instructed on the burden of proof, and there was no error.”). not compel a conclusion specifically the of identity if the (Lodgment A1 at 9). (ART 7-10; CT 351-52). instructed on jury how to found Instead, The jury was evaluate eyewitness If the People have not met this burden, you jury was properly (RT 4230-32; CT 376-77). instructed regarding the As “[a] jury is Bruce, 376 F.3d at 955-56; see also Drayden v. White, “The jury was separately and explicitly instructed 31 Thus, the jury was properly 1 As such, the state court’s denial of Ground Three was not 2 contrary to, or an unreasonable application of, clearly established 3 federal law. 4 5 C. 6 Petitioner Is Not Entitled To Habeas Relief On His Confrontation Clause And Due Process Claims 7 8 In Ground Four(a), Petitioner contends the admission of gang 9 expert Detective Aguirre’s testimony that Petitioner admitted to 10 other non-testifying police investigators that he was a Lott 13 11 gang member violated Petitioner’s right to confront the witnesses 12 against him. 13 the trial court denied him due process of law when it admitted 14 Detective 15 testimony.21 (SAP at 6-16). Aguirre’s (Id.). In Ground Four(b), Petitioner argues “[irrelevant] and prejudicial” expert Petitioner’s contentions are without merit.22 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner also suggests he was denied equal protection of the law, but does not explain why this is so, and his vague, conclusory and unsupported assertion is manifestly insufficient to warrant habeas corpus relief. Greenway, 653 F.3d at 804; James, 24 F.3d at 26. 22 A federal court, in conducting habeas review, is limited to deciding whether a state court decision violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam); McGuire, 502 U.S. at 67-68. Federal habeas corpus relief “does not lie for errors of state law.” Jeffers, 497 U.S. at 780; see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.” (emphasis in original)). Therefore, to the extent Petitioner’s claim can be read as alleging that admission of the gang expert’s testimony violated state law (see SAP at 9-11), such a claim – or any other state law claim – is not cognizable in this proceeding and will not be further addressed. See Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998) (Federal habeas relief is available “only for constitutional violation, not for abuse of discretion.”). 21 32 1 1. Los Angeles County Superior Court’s Opinion 2 3 The Los Angeles County Superior Court did not specifically 4 discuss the Confrontation or 5 Due Process Clauses, but denied Petitioner’s claims, stating: 6 7 [Detective] Eduardo Aguirre properly relied on the 8 Petitioner[’]s admission of gang membership in forming 9 his opinion that the Petitioner was a gang member and the 10 crime was committed for the benefit of the gang. 11 Evid. 12 information made known to him, whether admissible or not, 13 that is of a type that may reasonably [be] relied upon 14 by an expert in forming his opinion. 15 admission of gang membership to a police officer is that 16 type of information. 17 admission 18 pursuant to [Cal. Evid. Code §] 1220. Code § of 801(b)] gang permits an expert to [Cal. rely on The Petitioner’s In addition[,] the Petitioner’s membership is admissible hearsay 19 20 (Dkt. No. 34-1 at 39).23 21 \\ 22 \\ 23 24 25 26 27 28 Although the Superior Court did not specifically discuss the federal aspects of the claims Petitioner raised, the Court presumes the Superior Court denied his Confrontation Clause and Due Process claims on the merits, see Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013) (“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits — but that presumption can in some limited circumstances be rebutted.”), and Petitioner has not rebutted this presumption. 23 33 1 2. Analysis 2 3 a. Confrontation Clause 4 5 The Sixth Amendment’s Confrontation Clause provides that “[i]n 6 all criminal prosecutions, the accused shall enjoy the right . . . 7 to be confronted with the witnesses against him. . . .” 8 Const., Amend. VI. 9 testimonial statements of a witness who did not appear at trial 10 unless he was unavailable to testify, and the defendant . . . had 11 a 12 Washington, 541 U.S. 36, 53-54 (2004); Davis v. Washington, 547 13 U.S. 813, 821 (2006). The Confrontation Clause applies only to 14 “‘witnesses’ against the 15 testimony.’” Crawford, 541 U.S. at 51 (citation omitted); Davis, 16 547 U.S. at 823-24. 17 declaration or affirmation made for the purpose of establishing or 18 proving some fact.” 19 internal punctuation omitted); Davis, 547 U.S. at 824. 20 Davis court explained: prior U.S. The Confrontation Clause bars “admission of opportunity for cross-examination.” accused, i.e., Crawford those who v. ‘bear “‘Testimony,’ in turn, is typically a solemn Crawford, 541 U.S. at 51 (citation and some As the 21 22 [a] critical portion of [Crawford’s] holding . . . is 23 the phrase “testimonial statements.” 24 this sort cause the declarant to be a “witness” within 25 the meaning of the Confrontation Clause. 26 testimonial character of the statement that separates it 27 from other hearsay that, while subject to traditional 28 34 Only statements of It is the 1 limitations upon hearsay evidence, is not subject to the 2 Confrontation Clause. 3 4 Davis, 547 U.S. at 821 (citation omitted). 5 statements do not implicate the Confrontation Clause. 6 California, 554 U.S. 353, 376 (2008); Whorton v. Bockting, 549 U.S. 7 406, 420 (2007). 8 the 9 establishing the truth of the matter asserted.” use of Thus, nontestimonial Giles v. Moreover, the Confrontation Clause “does not bar testimonial statements for purposes other than Crawford, 541 U.S. 10 at 59 n.9; see also United States v. Wahchumwah, 710 F.3d 862, 871 11 (9th Cir. 2013) (Crawford “applies only to testimonial hearsay, 12 and ‘does not bar the use of testimonial statements for purposes 13 other 14 (citation 15 violation is subject to harmless error analysis. 16 Arsdall, 17 violation is harmless, and does not justify habeas relief, unless 18 it had substantial and injurious effect or influence in determining 19 the jury’s verdict. 20 F.3d 1098, 1114 (9th Cir. 2011). than establishing omitted)). 475 U.S. 673, the truth of Additionally, 684 (1986). the a A matter asserted.’” Confrontation Clause Delaware v. Van Confrontation Clause Brecht, 507 U.S. at 623; Ocampo v. Vail, 649 21 22 Here, Petitioner complains his Confrontation Clause rights 23 were violated when gang expert Detective Aguirre testified that 24 Petitioner admitted to several officers that he was Fatty from Lott 25 13. 26 Court has not clearly established that the admission of out-of- 27 court statements relied on by an expert violates the Confrontation 28 Clause.” (RT 2421-22). This contention is without merit. “The Supreme Hill v. Virga, 588 F. App’x 723, 724 (9th Cir. 2014), 35 1 cert. denied, 135 S. Ct. 2355 (2015); see also Lopez v. Davey, 2015 2 WL 4776434, *18 (N.D. Cal. 2015) (“There is no clearly established 3 Supreme Court authority that admission of hearsay statements relied 4 on by an expert violates the Confrontation Clause.”); Castillo v. 5 Lewis, 2015 WL 10401594, *13 (C.D. Cal. 2015) (“[T]o date the 6 Supreme Court has not held that the use of testimonial hearsay 7 evidence as a basis for expert opinion violates the Confrontation 8 Clause.”), report and recommendation adopted by, 2016 WL 837891 9 (C.D. Cal. 2016); Watts v. Brazelton, 2013 WL 2317793, *11 (C.D. 10 Cal. 2013) (“[N]o 11 admission 12 Confrontation 13 rejection of Petitioner’s Confrontation Clause claim cannot have 14 been 15 established federal law. 16 126 (2008) (“Because our cases give no clear answer to the question 17 presented, state court 18 unreasonabl[y] appli[ed] clearly established Federal law. Under 19 the 20 unauthorized.” (citation and internal quotation marks omitted; 21 brackets in original)); Carey v. Musladin, 549 U.S. 70, 77 (2006) 22 (“Given the lack of holdings from this Court. . . , it cannot be 23 said 24 established Federal law.’” (citation omitted)); Stenson v. Lambert, 25 504 F.3d 873, 881 (9th Cir. 2007) (“Where the Supreme Court has 26 not addressed an issue in its holding, a state court adjudication 27 of the issue not addressed by the Supreme Court cannot be contrary of expert . explicit the to, . or . state based establishe[s] on unreasonable hearsay the that the violates the California application of, court’s clearly See Wright v. Van Patten, 552 U.S. 120, cannot of case Accordingly, an it terms Court opinion Clause.”). contrary that Supreme § court be said 2254(d)(1), that therefore, ‘unreasonabl[y] 28 36 the relief appli[ed] is clearly 1 to, or an unreasonable application of, clearly established federal 2 law.”). 3 4 Even if this was not the case, the Court need not address 5 whether Detective Aguirre’s disputed testimony violated the 6 Confrontation Clause because any possible error was harmless. 7 Brecht, 507 U.S. at 623. 8 admission, Detective Aguirre never opined that Petitioner was a 9 Lott 13 gang member. In particular, despite Petitioner’s Instead, based on items recovered from 10 Petitioner’s home and jail cell,24 Detective Aguirre concluded 11 Petitioner was a member of the ACR gang, not Lott 13.25 12 2200). 13 gang moniker was Fatty, he based this opinion primarily on evidence 14 he recovered from Petitioner’s home and a letter Petitioner signed, 15 all of which referred to him as Fatty from ACR. (RT 2199- Although Detective Aguirre did opine that Petitioner’s (CT 270-71; (RT 16 17 18 19 20 21 22 23 24 25 26 27 28 These items included a letter found in Petitioner’s jail cell which he signed “Edgar Faty” and “Still Alcoholic.” (CT 270-71; RT 2200). Petitioner signed another letter Edgar “Still an Alcoholic catching respect.” (RT 2201). Additionally, a mousepad and a business card recovered from Petitioner’s home both said “Fatty ACR.” (RT 2201-02). Moreover, Detective Aguirre identified Petitioner in a photograph in which Petitioner was “throwing up ACR, hand signs.” (RT 2208). Detective Aguirre also testified about ACR graffiti with three different monikers, including “Fatty,” which Detective Aguirre stated was a “roster” signifying that ACR was “present” in the area and that “Fatty” – i.e., Petitioner – was “active.” (RT 2430-32). Finally, in another letter Petitioner wrote while he was in jail, Petitioner urged his friends to manufacture evidence that would exonerate him on the pending gang enhancement by showing that “we,” i.e., ACR members, do not get along with Lott 13 members. (CT 272-73). 25 Detective Aguirre explained that Lott 13 and ACR are allies. (RT 2422, 2425-26, 2786; see also RT 2435-37). Detective Aguirre also testified that ACR members have sometimes moved on to Lott 13, and Lott 13 allows ACR to operate in its territory. (RT 2195, 2197, 2797). 24 37 1 2200-02). 2 Petitioner’s Lott 13 admission, and as Petitioner’s statement that 3 he was Fatty was cumulative of other evidence admitted at trial, 4 Petitioner 5 disputed 6 influence in determining the jury’s verdict. 7 623; see also Woods v. Sinclair, 764 F.3d 1109, 1125-26 (9th Cir. 8 2014) (Given the cumulative nature of the improperly admitted 9 statements, petitioner “cannot establish prejudice as a result of 10 the Confrontation Clause violation, and he is not entitled to 11 habeas relief on this issue.”), cert. denied, 135 S. Ct. 2311 12 (2015); Whelchel v. Washington, 232 F.3d 1197, 1210-11 (9th Cir. 13 2000) (Confrontation Clause error was harmless when improperly 14 admitted evidence was “merely cumulative”). Thus, cannot testimony because show had Detective that a Aguirre admission substantial of and did not Detective injurious rely on Aguirre’s effect or Brecht, 507 U.S. at 15 16 b. Due Process 17 18 “Under AEDPA, even clearly erroneous admissions of evidence 19 that render a trial fundamentally unfair may not permit the grant 20 of federal habeas corpus relief if not forbidden by ‘clearly 21 established Federal law,’ as laid out by the Supreme Court.” Holley 22 v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting 28 23 U.S.C. § 2254(d)). 24 regarding the admission of evidence as a violation of due process” 25 and “has not yet made a clear ruling that admission of irrelevant 26 or overtly prejudicial evidence constitutes a due process violation 27 sufficient to warrant issuance of the writ.” 28 state court’s rejection of Petitioner’s due process claim cannot “The Supreme Court has made very few rulings 38 Id. Therefore, the 1 be 2 established federal law. 3 555 F.3d 742, 761-62 (9th Cir. 2009). contrary to, or an unreasonable application of, clearly 28 U.S.C. § 2254(d)(1); Moses v. Payne, 4 5 Even setting aside the “clearly established federal law” 6 issue, Petitioner’s due process claim is without merit. 7 petitioner bears a heavy burden in showing a due process violation 8 based on an evidentiary decision.” 9 1172 (9th Cir. 2005), as amended, 421 F.3d 1154 (9th Cir. 2005). 10 “‘The admission of evidence does not provide a basis for habeas 11 relief 12 violation of due process.’” 13 omitted); Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008). 14 In the context of a claim of improperly-admitted evidence, “[a] 15 writ of habeas corpus will be granted . . . only where the 16 ‘testimony is almost entirely unreliable and . . . the factfinder 17 and 18 recognize, and take due account of its shortcomings.’” 19 Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (citation omitted). 20 “Only if there are no permissible inferences the jury may draw from 21 evidence 22 Woodford, 334 F.3d 862, 887 (9th Cir. 2003) (emphasis in original); 23 Houston v. Roe, 177 F.3d 901, 910 n.6 (9th Cir. 1999). 24 the evidence must ‘be of such quality as necessarily prevents a 25 fair trial[,]’” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 26 1991) (emphasis in original; citation omitted); Randolph v. People 27 of the State of Cal., 380 F.3d 1133, 1147-48 (9th Cir. 2004), which 28 can only occur if the admission of the evidence had a “‘substantial unless the it adversary can its rendered system admission the “A habeas Boyde v. Brown, 404 F.3d 1159, trial fundamentally unfair in Holley, 568 F.3d at 1101 (citations will not violate 39 be due competent process.” to uncover, Mancuso v. Alcala v. “Even then, 1 and 2 verdict.’” 3 also Plascencia v. Alameida, 467 F.3d 1190, 1203 (9th Cir. 2006) 4 (“[T]he 5 Plascencia’s due process rights” since “[e]ven if the admission of 6 the [evidence] was improper, the error could not have had ‘a 7 substantial and injurious effect on the jury’s verdict.’” (citation 8 omitted)). injurious effect or influence in determining the jury’s Brecht, 507 U.S. at 623 (1993) (citation omitted); see admission of the challenged evidence did not violate 9 10 Here, “since evidence of [P]etitioner’s gang membership was 11 clearly relevant to the gang enhancement charge[s] against 12 [P]etitioner, . . . [P]etitioner was not denied due process of law 13 when evidence regarding his gang membership was admitted into 14 evidence.” 15 States v. Takahashi, 205 F.3d 1161, 1164 (9th Cir. 2000) (“Evidence 16 of gang affiliation is admissible when it is relevant to a material 17 issue in the case.”); People v. Williams, 170 Cal. App. 4th 587, 18 609 (2009) (“Gang evidence, including expert testimony, is relevant 19 and admissible to prove the elements of the substantive gang crime 20 and gang enhancements.”); Hernandez, 33 Cal. 4th at 1049 (“Evidence 21 of the defendant’s gang affiliation — including evidence of the 22 gang’s 23 practices, criminal enterprises, rivalries, and the like — can help 24 prove identity, motive, modus operandi, specific intent, means of 25 applying force or fear, or other issues pertinent to guilt of the 26 charged crime.”). Ratliff, 712 F. Supp. 2d at 1065; see also United territory, membership, 27 28 40 signs, symbols, beliefs and 1 For all these reasons, the state court’s rejection of Ground 2 Four was not contrary to, or an unreasonable application of, 3 clearly established federal law. 4 5 D. 6 Petitioner Is Not Entitled To Habeas Relief On His Impermissibly Suggestive Pretrial Identification Claim 7 8 9 10 In Ground impermissibly Five, suggestive Petitioner contends photographic denied him due process of law. the use identification of an procedure (SAP at 6, 16-33). 11 12 1. Background 13 14 The robberies occurred on October 3, 2009. (RT 1228-33, 1561, 15 1565-66, 1830-32, 1846, 2143). 16 Aguirre 17 photographic 18 1851-52, 2183-84, 3006). 19 lineup, Detective Aguirre read Arturo a standard admonition in 20 English and Spanish.27 interviewed lineup Arturo On October 9, 2009, Detective Frias containing and showed Petitioner’s him a six-pack photograph.26 (RT Before showing Arturo the photographic (RT 3015-17). On cross-examination, 21 22 23 24 25 26 27 28 In addition to the six-pack photographic lineup containing Petitioner’s picture, Detective Aguirre showed Arturo multiple sixpack photographic lineups on November 5, 2009. (RT 2183-87). Any further reference to “the photographic lineup” refers to the October 9, 2009, photographic lineup containing Petitioner’s picture, which is the lineup relevant to Ground Five. 27 While the photographic lineup, including the standard admonition, was in evidence before the jury, it is not part of the record before this Court. (RT 2183-84, 3904). Similarly, Detective Aguirre recorded the October 9, 2009 interview with Arturo, but it is not part of the record. (RT 3033-34). Therefore, the Court is unaware of exactly what Detective Aguirre told 26 41 1 Detective Aguirre conceded that in addition to the admonition, he 2 told Arturo that he was going to show him the driver.28 3 After several minutes, Arturo picked out Petitioner’s photograph 4 from the lineup, identifying him as the green car’s driver.29 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Petitioner. However, the record does contain an Detective Aguirre read to Mario Frias, which stated: [DC]: 23 26 27 28 admonition (CT 330; see also RT 1534-35). Because Detective Aguirre indicated he read the admonition to Arturo from a form that is provided to investigators before they show six-pack photographic lineups to witnesses and the same admonition is read in every case in which a witness is shown a photographic lineup (RT 2184, 2510-11), it is reasonable to assume that this is the admonition Detective Aguirre read Arturo, though this assumption has no bearing on the outcome of this case. 28 The following colloquy occurred between Petitioner’s defense counsel (“DC”) and Detective Aguirre (“Det.”): 22 25 (RT You’ll be asked to look at a group of photographs. The fact that the photographs are shown to you should not influence your [judgment]. You should not conclude or guess that the photographs contain the picture of the person that committed the crime. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties. Please do not discuss the case with other witnesses or indicate in any way that you have identified someone. Do you understand that? 21 24 (RT 3018). [Det.]: [DC]: [Det.]: And specifically what you said to [Arturo] was, I’m going to show you, you know, some photographs. And if you see him, tell me. Okay. Tell me which one it was. Okay? And no, no hurry. Take your time. Well, you said that the – the fat one that was in the car, you didn’t take a good look at him. But I’m going to show him to you see anyone? Yes. That’s what you told him. You told him you were going to show the driver to him, didn’t you? Yes. (RT 3018). 29 Arturo initially dismissed four of the six photographs and focused on the first two photos in the array. (RT 3018). Detective Aguirre then covered the four rejected photos and told Arturo to 42 1 1851-52, 2183-84, 3029-30). 2 Petitioner as the green car’s driver. At trial, Arturo also identified (RT 1845-46). 3 4 2. Analysis 5 6 “[C]onvictions based on eyewitness identification at trial 7 following a pretrial identification . . . will be set aside on that 8 ground only if the [pretrial] identification procedure was so 9 impermissibly suggestive as to give rise to a very substantial 10 likelihood of irreparable misidentification.” 11 States, 390 U.S. 377, 384 (1968); see also Perry v. New Hampshire, 12 565 U.S. 228, 238-39 (2012) (“[D]ue process concerns arise only 13 when law enforcement officers use an identification procedure that 14 is both suggestive and unnecessary.”). 15 misidentification 16 process. . . .” 17 to successfully challenge identification testimony, a defendant 18 must 19 identification procedures were so unnecessarily suggestive as to 20 give rise to a substantial likelihood of misidentification. 21 565 U.S. at 239; Biggers, 409 U.S. at 198. 22 procedure 23 identification testimony is not required. 24 Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Biggers, 409 U.S. 25 at 199. 26 ‘totality of the circumstances’ the identification was reliable show is which violates a Simmons v. United “It is the likelihood of defendant’s right to Neil v. Biggers, 409 U.S. 188, 198 (1972). that the government’s impermissibly suggestive, pre-trial or due Thus, in-court Perry, Even if a pretrial automatic exclusion of Perry, 565 U.S. at 239; Rather, the court must determine “whether under the 27 28 take his time and look at both of the remaining photos, which Arturo did. (RT 3018-21). 43 1 even though the confrontation procedure was suggestive.” 2 409 U.S. at 199; Perry, 565 U.S. at 239; Brathwaite, 432 U.S. at 3 114. 4 court identification testimony is sufficiently reliable: (1) the 5 witness’s opportunity to view the criminal at the time of the 6 crime; (2) the witness’s degree of attention; (3) the accuracy of 7 the witness’s prior description of the criminal; (4) the level of 8 certainty 9 identification; and (5) the length of time between the crime and Biggers, Five factors must be considered in determining whether in- demonstrated pretrial by the identification. witness Perry, at 565 the 10 the U.S. at 11 pretrial 239 n.5; Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199. 12 13 Petitioner “bears the burden of showing impermissible 14 suggestiveness.” 15 2005); see also English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 16 2001) (“In order to prevail on a claim of an unduly suggestive 17 [identification procedure], a defendant has the initial burden of 18 proving 19 suggestive.” 20 contend there was any inherent deficiency in the photographic 21 lineup 22 Petitioner argues that the circumstances surrounding Detective 23 Aguirre’s presentation 24 rendered Arturo’s 25 impermissibly suggestive.30 that Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir. the identification (citation Detective omitted)). Aguirre of showed the pretrial procedure Here, to was impermissibly Petitioner Arturo photographic does Frias. lineup identification (SAP at 6, 16-33). of not Rather, to Arturo petitioner In particular, 26 27 28 The majority of Petitioner’s claim focuses on perceived inconsistencies between the victims’ descriptions of the perpetrators. (See SAP at 18-28). But the relevant question here 30 44 1 Petitioner complains that: (1) “Detective Aguirre first show[ed] 2 Arturo . . . photos of Petitioner taken from his home” as well as 3 photos “taken of Petitioner after [he was interviewed] by police 4 in the area where the crimes was committed”; (2) Arturo’s pretrial 5 identification 6 Aguirre placed Petitioner’s photograph in the lineup only because 7 Petitioner “had recently been [stopped and interviewed] by police 8 near, 9 identification of him was impermissibly suggestive because Arturo 10 has cognitive difficulties and the three other robbery victims were 11 unable to identify Petitioner; and (4) Detective Aguirre informed 12 Petitioner that the driver would be in the photographic lineup. 13 (SAP at 6, 17-18, 28-29; Reply at 2, 12-13). or at of the him was scene improperly of the tainted crime”; (3) since Arturo’s Detective pretrial 14 15 Petitioner has lineup not met his procedure burden was of showing impermissibly that the 16 photographic suggestive. 17 Petitioner’s first assertion is unclear and unsupported by citation 18 to any evidence in the record,31 his second assertion is factually 19 incorrect,32 see Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) 20 21 22 23 24 25 26 27 28 is whether the photographic lineup shown to Arturo Frias was impermissibly suggestive. 31 Neither Petitioner’s SAP nor his Reply point to any evidence supporting this allegation, Petitioner cites to no evidence in the record indicating that Detective Aguirre showed Arturo any picture of Petitioner other than the photographic lineup, and the Court need not scour the state court record in search of possible support for Petitioner’s argument. See Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990) (Neither “[Section] 2254 [nor] the Section 2254 Rules require the federal courts to review the entire state court record of habeas corpus petitioners to ascertain whether facts exist which support relief.”). 32 As pretrial proceedings made clear, Detective Aguirre initially focused on Petitioner as a suspect based on “word on the street” 45 1 (factually unfounded argument provides no basis for federal habeas 2 relief), and both the first and second assertions are “cursory and 3 vague [and] cannot support habeas relief.” 4 653 F.3d 790, 804 (9th Cir. 2011); James v. Borg, 24 F.3d 20, 26 5 (9th Cir. 1994); see also Gustave v. United States, 627 F.2d 901, 6 904 (9th Cir. 1980) (affirming dismissal of claim challenging 7 allegedly suggestive display of photographs since it was “vague, 8 conclusory and without any facts alleged in support of the claim”). 9 Similarly, with regard to Petitioner’s third assertion, the trial found Arturo competent to testify Greenway v. Schriro, 10 court (RT 1828-30), and 11 Petitioner does not explain how Arturo’s cognitive difficulty made 12 the six-pack procedure impermissibly suggestive. 13 F.3d at 804 (9th Cir. 2011); James, 24 F.3d at 26; Gustave, 627 14 F.2d at 904. 15 suggestive merely because the witness knew the lineup included a 16 suspect as “it stands to reason that there is a suspect at the 17 lineup stage.” 18 Cir. 2000) (italics in original); see also Jenkins v. City of New 19 York, 478 F.3d 76, 93 (2d Cir. 2007) (“[A]lthough the police 20 generally should refrain from informing a witness that [a] suspect 21 is in [a] lineup, a lineup is not unduly suggestive merely because 22 they do so.”); United States v. Carter, 756 F.2d 310, 313 (3d Cir. 23 1985) (While suggesting there is a suspect in the lineup the witness 24 is about to view “is dangerously suggestive when combined with a 25 one person show-up, this is not true in the case of a fair 26 lineup[.]” (citations omitted)); Gullick v. Perrin, 669 F.2d 1, 5 Greenway, 653 Finally, a pretrial lineup is not impermissibly United States v. Bowman, 215 F.3d 951, 966 (9th 27 28 information he received from a confidential informant rather than any prior stop of Petitioner. (See CT 160-82, 186-92; RT D7-D14). 46 1 n.9 (1st Cir. 1981) (“The mere holding of any lineup [is] likely 2 to suggest to a witness that suspicion has focused on one or more 3 of the participants - else why hold the lineup?”); United States 4 v. Gambrill, 449 F.2d 1148, 1151 n.3 (D.C. Cir. 1971) (“It must be 5 recognized . . . that any witness to a crime who is called upon to 6 view a police lineup must realize that he would not be asked to 7 view the lineup if there were not some person there whom the 8 authorities suspected. 9 average intelligence. To ignore this fact is to underestimate Thus, telling this to a witness may in many 10 instances be relatively harmless.”); Hodge v. Henderson, 761 F. 11 Supp. 993, 1007-08 (S.D. N.Y. 1990) (“[I]t is implicit in the 12 viewing of a lineup that a suspect might appear; this knowledge 13 alone 14 misidentification.”), affirmed by, 929 F.2d 61 (2d Cir. 1991) (per 15 curiam). 16 that the photographic lineup was impermissibly suggestive, and he 17 cannot establish a due process violation. 18 39; see also United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 19 1985) (“If we find that a challenged procedure is not impermissibly 20 suggestive, our inquiry into the due process claim ends.”). is insufficient to pose a substantial likelihood of Accordingly, Petitioner has not met his burden of showing Perry, 565 U.S. at 238- 33 21 22 Having so concluded, the Court need not consider whether the evidence was reliable under the totality of the circumstances. See Bagley, 772 F.2d at 493 (“Having concluded that the one-on-one show-up was a legitimate identification procedure, we need not reach the question whether the teller’s identification was reliable under the test enunciated in Biggers.”); United States v. Davenport, 753 F.2d 1460, 1463 n.2 (9th Cir. 1985) (“Because we do not regard the confrontation procedures as unnecessarily suggestive, we need not consider the reliability of the identification in determining whether the procedures gave rise to a substantial likelihood of mistaken identification.”). 33 23 24 25 26 27 28 47 1 Where, as here, “the procedure employed does not give rise to 2 ‘a very substantial likelihood of irreparable misidentification,’ 3 identification evidence is for the jury to weigh.” 4 v. Kessler, 692 F.2d 584, 587 (9th Cir. 1982) (citation omitted); 5 United States v. Jones, 84 F.3d 1206, 1210 (9th Cir. 1996). 6 the reliability of Arturo Frias’s identification of Petitioner and 7 his 8 examination of Arturo Frias and Detective Aguirre as well as 9 through the defendants’ use of expert testimony. co-defendants was thoroughly explored United States through the Here, cross- (See, e.g., RT 10 1857-1903, 2103-19, 2438-71, 2496-2511, 2702-26, 2755-61, 2764- 11 2825, 12 circumstances, Petitioner has not demonstrated that he was denied 13 due process of law when the trial court allowed the jury to evaluate 14 the identification evidence. 15 (Short 16 misidentification’” identification “evidence is for the jury to 17 weigh. 18 American 19 untrustworthiness is customary grist for the jury mill. 20 are not so susceptible that they cannot measure intelligently the 21 weight of identification testimony that has some questionable 22 feature.” (citation omitted)); Simmons, 390 U.S. at 384 (“The 23 danger that use of [photographic identification] technique[s] may 24 result 25 substantially lessened by a course of cross-examination at trial 26 which exposes to the jury the method’s potential for error.”); 27 Richardson v. Runnels, 318 F. App’x 492, 493 (9th Cir. 2008) (Since 28 defense “counsel was given every opportunity to challenge the 3002-26, of “‘a 3035-38, very 3947-89, 3991-4007). Under these See Brathwaite, 432 U.S. at 116 substantial likelihood of irreparable We are content to rely upon the good sense and judgment of juries, in for convictions evidence based on 48 with some element misidentification of Juries may be 1 identification 2 suggestive police procedures led to an inaccurate identification, 3 . . . [t]he trial court’s decision to leave the ultimate question 4 of 5 constitutional claim). the evidence” identification’s and “was fully reliability to able the to argue jury” raised that “no 6 7 8 E. Petitioner Is Not Entitled To Habeas Relief On His Ineffective Assistance of Counsel Claims 9 10 In Ground Six, Petitioner contends he received ineffective 11 assistance of counsel when defense counsel failed to object to 12 Detective Aguirre’s hearsay testimony as violating Petitioner’s 13 right to confront the witnesses against him and failed to object 14 to the unduly suggestive identification of Petitioner, as set forth 15 in Grounds Four and Five. (SAP at 33). In Ground Seven, Petitioner 16 alleges he received ineffective assistance when appellate counsel 17 did not raise Grounds Four through Six on appeal. 18 Superior 19 assistance 20 ineffective assistance of appellate counsel claim. 21 1 at 39). Court at concluded trial[,]” that but “counsel did not (Id.). provided address The effective Petitioner’s (Dkt. No. 34- 22 23 “The Sixth Amendment guarantees criminal defendants the 24 effective assistance of counsel.” Yarborough v. Gentry, 540 U.S. 25 1, 4 (2003) (per curiam); see also Missouri v. Frye, 566 U.S. 133, 26 138 (2012) (“The right to counsel is the right to effective 27 assistance of counsel.”). 28 of trial counsel claim, Petitioner must demonstrate both that To succeed on an ineffective assistance 49 1 counsel’s 2 performance prejudiced the defense. 3 U.S. 4 (Strickland standard is clearly established federal law). 5 establish deficient performance, a person challenging a conviction 6 must show that ‘counsel’s representation fell below an objective 7 standard of reasonableness.’” 8 omitted); Premo v. Moore, 562 U.S. 115, 121 (2011). 9 “focuses on the question whether counsel’s deficient performance 10 renders the results of the trial unreliable or the proceeding 11 fundamentally unfair.” 12 (1993); Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000). 13 is, Petitioner must establish there is a “reasonable probability 14 that, but for counsel’s unprofessional errors, the result of the 15 proceeding would have been different[,]” Strickland, 466 U.S. at 16 694; Pinholster, 563 U.S. at 189, and “[t]he likelihood of a 17 different 18 Richter, 562 U.S. at 112; Pinholster, 563 U.S. at 189. 19 bears the burden of establishing both components. 20 U.S. at 390-91; Strickland, 466 U.S. at 687. 21 need not determine whether counsel’s performance was deficient 22 before examining the prejudice the alleged deficiencies caused 23 Petitioner. 24 (“‘If it is easier to dispose of an ineffectiveness claim on the 25 ground of lack of sufficient prejudice, . . . that course should 26 be followed.’” (quoting Strickland, 466 U.S. at 697)). performance 668, 687 (1984); result must was deficient see also and that the deficient Strickland v. Washington, 466 Pinholster, 563 U.S. at 189 “‘To Richter, 562 U.S. at 104 (citation Prejudice Lockhart v. Fretwell, 506 U.S. 364, 372 be substantial, not just That conceivable.” Petitioner Williams, 529 However, the Court See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000) 27 28 50 1 “[T]he right to effective assistance of counsel is not 2 confined to trial, but extends also to the first appeal as of 3 right.” 4 Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). 5 establishing a prima facie claim of ineffective appellate counsel 6 is the same as for trial counsel: Petitioner must show his appellate 7 counsel was deficient and the deficient performance prejudiced him. 8 Robbins, 528 U.S. at 285, 289; Strickland, 466 U.S. at 687; Cockett 9 v. Ray, 333 F.3d 938, 944 (9th Cir. 2003). Kimmelman v. Morrison, 477 U.S. 365, 378 n.2 (1986); The standard for Moreover, appellate 10 counsel has no constitutional duty to raise every issue, where, in 11 the attorney’s judgment, the issue has little or no likelihood of 12 success. 13 Calderon, 281 F.3d 851, 881 (9th Cir. 2002). 14 of the court, appellate counsel is under an ethical obligation to 15 refrain from wasting the court’s time on meritless arguments. 16 McCoy v. Wisconsin, 486 U.S. 429, 436 (1988). 17 appellate 18 appellate counsel used reasonable tactics; otherwise, it “could 19 dampen 20 discourage the acceptance of assigned cases, and undermine the 21 trust between attorney and client.” 22 1430, 1435 (9th Cir. 1997) (citing Strickland, 466 U.S. at 690). Jones v. Barnes, 463 U.S. 745, 751-53 (1983); Turner v. the counsel’s ardor performance, and impair the Indeed, as an officer court [counsel’s] Thus, in reviewing will presume independence. . that . , Pollard v. White, 119 F.3d 23 24 Here, because Petitioner’s ineffective assistance of trial 25 counsel claims relate to claims that have been found meritless, 26 Petitioner cannot demonstrate his trial counsel was ineffective. 27 See Flournoy v. Small, 681 F.3d 1000, 1006 (9th Cir. 2012) (“The 28 failure to make an objection that would have been overruled was 51 1 not deficient performance.”); Sexton v. Cozner, 679 F.3d 1150, 1157 2 (9th 3 failing to raise even a nonfrivolous claim, so clearly we cannot 4 hold counsel ineffective for failing to raise a claim that is 5 meritless.” (citation omitted)). 6 appellate counsel rendered ineffective assistance in failing to 7 raise Grounds Four through Six on appeal. 8 694 F.3d 1094, 1106 (9th Cir. 2012) (“Counsel is not required to 9 raise Cir. an 2012) (“Counsel ‘untenable issue’ is not on necessarily ineffective for Nor can Petitioner prove his appeal.” See Rogovich v. Ryan, (citations omitted)); 10 Moorman v. Ryan, 628 F.3d 1102, 1107 (9th Cir. 2010) (“If trial 11 counsel’s performance was not objectively unreasonable or did not 12 prejudice Moormann, then appellate counsel did not act unreasonably 13 in failing to raise a meritless claim of ineffective assistance of 14 counsel, and Moormann was not prejudiced by appellate counsel’s 15 omission.”); Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) 16 (“[Petitioner] cannot sustain his claim for ineffective assistance 17 of appellate counsel because the issues he raises are without 18 merit”). 19 20 Accordingly, the state court’s rejection of Grounds Six and 21 Seven was neither contrary to, nor an unreasonable application of, 22 clearly established federal law. 23 \\ 24 \\ 25 \\ 26 \\ 27 28 52 1 VII. 2 CONCLUSION 3 4 For the foregoing reasons, the Petition for Writ of Habeas 5 Corpus is DENIED and Judgment shall be entered dismissing this 6 action with prejudice. 7 8 DATED: March 24, 2017 9 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53

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