Ramirez v. Foulk et al

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/08/15 recommending that petitioner's petition for a writ of habeas corpus be denied. Referred to Judge Morrison C. England Jr. Objections due within 21 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE RAMIREZ,

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Petitioner,

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No. 2:13-cv-00679 MCE AC

v.

FINDINGS AND RECOMMENDATIONS

FRDERICK FOULK,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, challenging his Tehama County conviction for a gang-

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related carjacking. ECF No. 1. Respondent has filed an answer, ECF No. 15, and petitioner has

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filed a traverse, ECF No. 20. For the reasons that follow, the undersigned recommends that the

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petition be denied

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I.

Procedural and Factual Background
Petitioner was charged in Tehama County with carjacking (Cal. Pen. Code § 215(a)),

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robbery (Cal. Pen. Code § 211), and street terrorism (Cal. Pen. Code § 186.22(a)). The

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information included allegations that the crimes were committed for the benefit of a criminal

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street gang (Cal. Pen. Code § 186.2(b)(4) & (b)(1)(c)), that petitioner personally used a firearm

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(Cal. Pen. Code § 12022.53(b)), and that a principal used a firearm (§ 12022.53). CT 27.1

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A. Evidence at Trial

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The evidence at trial established the following facts. On June 7, 2009, Bradley Brunson

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received a phone call from Porche Hanna, a recent acquaintance, asking him to come over. When

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Brunson arrived at Hanna’s residence, two men later identified as petitioner and Elfego Acevedo

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were in the back yard. Hanna asked Brunson to drive the two men back to Red Bluff. All four

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individuals got into Brunson’s car, with Hanna in the front passenger seat and petitioner sitting

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directly behind Brunson.

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When they got to Red Bluff, petitioner told Brunson to exit the freeway and directed him

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to a location on Bend Ferry Road. Petitioner then pressed a gun to Brunson’s back and told him

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to stop the car. When the car stopped, petitioner opened the door and pushed Brunson out and

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onto the ground. Acevedo got out and pinned Brunson to the ground while defendant held a gun

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to Brunson’s head and searched his pockets. Petitioner told Brunson that if he moved, he would

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be shot. Petitioner took Brunson’s wallet and cell phone from his pockets, then both perpetrators

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returned to the car and drove away with Hanna. Petitioner was behind the wheel, and almost ran

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over Brunson.

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The car was stopped by Red Bluff police a short time later. Petitioner was the sole

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occupant. He was carrying a loaded gun. Brunson’s phone was in the car, and petitioner’s

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fingerprints were on the phone. A backpack that did not belong to Brunson was also found in the

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car, and contained items including CDs.

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Sheri Clayborne, Porche Hanna’s mother, testified that on the day before the incident

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Hanna had brought two tattooed Hispanic men to the house. Sometime after this visit, gang signs

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were painted on Clayborne’s fence. When interviewed by police, Clayborne identified petitioner

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and Acevedo from a photo line-up as the men she had met at her house.

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A month prior to the incident, Special Agent Marquez of the California Department of

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“CT” refers to the Clerk’s Transcript on Appeal, lodged in this court on August 7, 2013 (see
ECF No. 17).

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Corrections had contacted petitioner in the course of a multi-agency investigation. Petitioner had

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visible tattoos on his hands, arms and earlobes, including numerous references to the Sureños and

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to the South Side Locos (“SSL”), a Sureño gang operating in Tehama County. Petitioner

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admitted to Agent Marquez that he was an active member of the SSL. Petitioner’s gang moniker

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was “Lil Bird.”

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Acevedo was also a known Sureño.

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Tehama County Sheriff’s Sergeant David Kain testified as an expert on Hispanic gangs in

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Tehama County. RT 438-85.2 Sgt. Kain reviewed the taking of Brunson’s car to determine

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whether it was gang-related. Based on the investigation reports, petitioner’s jail classification

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forms, photographs of petitioner’s tattoos, and other evidence including photographs and ring

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tones from petitioner’s cell phone and writing on a CD found in the victim’s car, Sgt. Kain opined

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that petitioner was an active member of the Sureño gang on the date of the offense. Sgt. Kain

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also pointed to petitioner’s association with other known Sureños both prior to the incident and in

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jail following his arrest, and to petitioner’s admission of gang membership on several occasions.

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RT 459-68.

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Sgt. Kain was asked to respond to a hypothetical carjacking and robbery in which two

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known gang members produce a firearm and force the driver to travel to a remote location. Once

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there, the driver is pushed from the car, held at gunpoint while he is searched and personal items

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are removed from his pockets, and left on the ground while the gang members flee in his car. Sgt.

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Kain opined that such a crime would benefit the gang in several respects: the person wielding the

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gun would gain respect within the gang for intimidating the victim; the two perpetrators would

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each “feed off of” the joint intimidation of the victim; and the gang members could later use the

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stolen items, including the car. Sgt. Kain further opined that the hypothetical crime would

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promote, further and benefit the gang as a whole, because it would increase the gang’s status and

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garner respect from other gang members. RT 480-83. Apart from the issue of benefit, Sgt. Kain

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“RT” refers to the Reporter’s Transcript on Appeal, lodged in this court on August 7, 2013 (see
ECF No. 17).

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opined that the two hypothetical individuals would have been acting “in association with” a

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criminal street gang. RT 482.

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The defense presented no evidence.

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On September 20, 2010, the jury found petitioner guilty on all counts, and found the

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special allegations to be true. CT 123-31. Petitioner was sentenced on October 26, 2010, to an

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aggregate term of 25 years to life in prison. CT 159-60.

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B. Post-Conviction Proceedings

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The California Court of Appeal affirmed the judgment on August 8, 2012. Lodged Doc.

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1. The California Supreme Court denied review on October 17, 2012. Lodged Doc. 6. Petitioner
did not seek collateral relief in the state courts.

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The federal habeas petition was timely filed on March 31, 2013.3 ECF No 1. Respondent

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answered on the merits, on July 18, 2013. ECF No. 15. Petitioner thereafter submitted a traverse.

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ECF No. 20.

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II.

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Standards Governing Habeas Relief Under the AEDPA
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), provides in relevant part as follows:

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(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a state court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim –

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(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

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(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.

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The statute applies whenever the state court has denied a federal claim on its merits,

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whether or not the state court explained its reasons. Harrington v. Richter, 131 S. Ct. 770, 785

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The petition, docketed on April 5, 2013, was signed by petitioner on March 31, 2013. Under
the prison mailbox rule, the earlier date is considered the constructive filing date. See Houston v.
Lack, 487 U.S. 266, 276 (1988); Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003).

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(2011). State court rejection of a federal claim will be presumed to have been on the merits

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absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing

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Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is

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unclear whether a decision appearing to rest on federal grounds was decided on another basis)).

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“The presumption may be overcome when there is reason to think some other explanation for the

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state court's decision is more likely.” Id. at 785.

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The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal

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principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538

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U.S. 63, 71-72 (2003). Clearly established federal law also includes “the legal principles and

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standards flowing from precedent.” Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002)

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(quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent

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may constitute “clearly established Federal law,” but circuit law has persuasive value regarding

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what law is “clearly established” and what constitutes “unreasonable application” of that law.

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Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044,

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1057 (9th Cir. 2004).

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A state court decision is “contrary to” clearly established federal law if the decision

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“contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529

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U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state

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court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to

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the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court

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was incorrect in the view of the federal habeas court; the state court decision must be objectively

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unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

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Review under § 2254(d) is limited to the record that was before the state court. Cullen v.

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Pinholster, 131 S. Ct. 1388, 1398 (2011). The question at this stage is whether the state court

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reasonably applied clearly established federal law to the facts before it. Id. In other words, the

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focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399. Where the

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state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to “the

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state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 724, 738 (9th
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Cir. 2008) (en banc). A different rule applies where the state court rejects claims summarily,

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without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court

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denies a claim on the merits but without a reasoned opinion, the federal habeas court must

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determine what arguments or theories may have supported the state court’s decision, and subject

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those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786.

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III.

Sufficiency of Evidence to Support Gang Charge and Enhancements

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A. Petitioner’s Claim

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Petitioner alleges that the evidence presented at trial was insufficient to support his

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conviction on Count III (street terrorism in violation of Cal. Pen. Code § 186.22(a)), or the special

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allegation that he committed the carjacking and robbery for the benefit of a criminal street gang

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(Cal. Pen. Code § 186.2(b)(4) & (b)(1)(c)). ECF No. 1 at 4, 7.4 Petitioner contends that his

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federal due process rights were violated by conviction and enhanced sentencing in the absence of

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evidence sufficient to prove gang-relatedness beyond a reasonable doubt. Id. at 7-22.

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B. The Clearly Established Federal Law

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Due process requires that each essential element of a criminal offense be proven beyond a

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reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). In reviewing the sufficiency of

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evidence to support a conviction, the question is “whether, viewing the evidence in the light most

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favorable to the prosecution, any rational trier of fact could have found the essential elements of

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the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1974). If the

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evidence supports conflicting inferences, the reviewing court must presume “that the trier of fact

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resolved any such conflicts in favor of the prosecution,” and the court must “defer to that

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resolution.” Id. at 326; see also Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 & n.13 (9th Cir.

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2005).

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In order to grant a writ of habeas corpus under AEDPA, the court must find that the

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decision of the state court reflected an objectively unreasonable application of Jackson and

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Citations to court documents refer to the page numbers assigned by the court’s electronic
docketing system.

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Winship to the facts of the case. Juan H., 408 F.3d at 1274. The federal habeas court determines

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the sufficiency of the evidence in reference to the substantive elements of the criminal offense as

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defined by state law. Jackson, 443 U.S. at 324 n.16; Chein v. Shumsky, 373 F.3d 978, 983 (9th

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Cir. 2004).

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C. The State Court’s Opinion

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This claim was raised on direct appeal. Because the California Supreme Court denied

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discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned

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decision on the merits and is the subject of habeas review in this court. See Ylst v. Nunnemaker,

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501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012).

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The California Court of Appeal ruled as follows:
[Petitioner] contends his count III conviction and the street gang
enhancements on counts I and II must be reversed because there
was insufficient evidence he actively participated in a criminal
street gang or committed the carjacking and robbery for the benefit
of a street gang. Specifically, he claims (1) his gang membership
was insufficient to prove he committed the crimes for the benefit of
his gang, or that he actively participated in a gang; (2) Sergeant
Kain’s “unsupported” opinion was not substantial evidence that
defendant committed the crimes for the benefit of a gang; and (3)
the gang graffiti at Hanna’s residence was not substantial evidence
that the crimes were gang related. These contentions have no merit.
“On appeal, the test of legal sufficiency is whether there is
substantial evidence, i.e., evidence from which a reasonable trier of
fact could conclude that the prosecution sustained its burden of
proof beyond a reasonable doubt. [Citations.] Evidence meeting this
standard satisfies constitutional due process and reliability
concerns. [Citations.] [¶] While the appellate court must determine
that the supporting evidence is reasonable, inherently credible, and
of solid value, the court must review the evidence in the light most
favorable to the [judgment], and must presume every fact the jury
could reasonably have deduced from the evidence. [Citations.]
Issues of witness credibility are for the jury. [Citations.]” (People v.
Boyer (2006) 38 Cal.4th 412, 479-480.) If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might
also be reconciled with a contrary finding. (People v. Albillar
(2010) 51 Cal.4th 47, 60.) This standard of review applies to
charged counts as well as enhancements. (Ibid; People v. Wilson
(2008) 44 Cal.4th 758, 806.)
To establish the count III offense (§ 186.22, subd. (a)), the
prosecution must prove that defendant (1) actively (as opposed to
nominally or passively) participated in a criminal street gang, (2)
knew that the gang’s members engage in or have engaged in a
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pattern of criminal gang activity, and (3) willfully promoted,
furthered, or assisted in any felonious conduct by members of that
gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.) The criminal
conduct promoted, furthered, or assisted need not itself be gangrelated. (People v. Albillar, supra, 51 Cal.4th at p. 55.)
Section 186.22, subdivision (b)(1) provides a sentence enhancement
for “any person who is convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in
any criminal conduct by gang members . . . .” (E.g., People v.
Williams (2009) 170 Cal.App.4th 587, 625.) Because there rarely is
direct evidence that a crime was committed for the benefit of a
gang, the trier of fact may infer the requisite mental state from
“how people act and what they say.” (People v. Margarejo (2008)
162 Cal.App.4th 102, 110.)

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Gang Membership
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[Petitioner] notes that section 186.22 “does not criminalize mere
gang membership.” Specifically, he claims his “mere membership
in a gang was insufficient, by itself, to prove” that the crimes were
committed “for the benefit of” the gang. (§ 186.22, subd. (b)(1).)
However, the statute is satisfied by evidence that the crime was (1)
for the benefit of, (2) at the direction of, or (3) in association with,
the gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198
(Morales).) Here, [petitioner] committed the crime in concert with
Acevedo, another member of his gang. “Thus, the jury could
reasonably infer the requisite association from the very fact that
defendant committed the charged crimes in association with [a]
fellow gang member[].” (Ibid.) Evidence of “benefit” by the gang
was not required.

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Morales acknowledged it was “conceivable that several gang
members could commit a crime together, yet be on a frolic and
detour unrelated to the gang.” (112 Cal.App.4th at p. 1198.)
[Petitioner] posits that this is what happened here. He notes that
Brunson never observed any indication that either perpetrator was
related to a gang. In his view, “[t]here was nothing to indicate that
[the perpetrators’] intent was anything other than purely personal,
that is, to carjack and rob for their personal gain.”
However, [petitioner] had visible gang tattoos on his fingers and ear
lobes, and he took no evident steps to conceal those body parts.
Brunson’s failure to observe the tattoos may be attributed to his
being seated in front of defendant in the car during most of their
time together. Thus, reasonable jurors could deduce that defendant
intended to instill fear and obtain compliance based upon his status
as a gang member. The jury was not compelled to find that the
incident was a purely personal frolic or detour unrelated to the
gang. The fact the jury could have done so does not require reversal
of the judgment. (People v. Albillar, supra, 51 Cal.4th at p. 60.)

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[Petitioner] may be understood to contend that there was
insufficient evidence he acted “with the specific intent to promote,
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further, or assist in any criminal conduct by gang members . . . .” (§
186.22, subd. (b)(1).) The point has no merit.

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“‘Commission of a crime in concert with known gang members is
substantial evidence which supports the inference that the defendant
acted with the specific intent to promote, further or assist gang
members in the commission of the crime.’” (People v. Miranda
(2011) 192 Cal.App.4th 398, 412, quoting People v. Villalobos
(2006) 145 Cal.App.4th 310, 322; see Morales, supra, 112
Cal.App.4th at p. 1198 [“very fact that defendant committed the
charged crimes in association with fellow gang members” supports
the enhancement].) In Miranda, the defendant and two codefendants
were members or associates of the same gang. (192 Cal.App.4th at
p. 412.) In Villalobos, a non-gang member’s commission of the
crime in concert with her known gang member boyfriend was
sufficient evidence of specific intent to promote, further, or assist
criminal conduct by a gang member. (145 Cal.App.4th at p. 322.) In
Morales, the defendant and two co-participants were members of
the same gang. (112 Cal.App.4th at p. 1183.) Here, [petitioner’s]
commission of the crime with Acevedo was sufficient to show
specific intent to assist a gang member in the commission of a
crime.

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Expert Opinion
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[Petitioner] argues Sergeant Kain’s opinion that defendant’s
“crimes were committed for the benefit of a street gang” is “not
entitled to any weight” because it is “inconsistent with the evidence
and purely speculative.” (Citing, e.g., People v. Ochoa (2009) 179
Cal.App.4th 650, 661-662; People v. Ramon (2009) 175
Cal.App.4th 843, 851.) Because, as we have seen, there was
sufficient evidence the crimes were committed in association with
the gang (Morales, supra, 112 Cal.App.4th at p. 1198), it is not
necessary to consider the sufficiency of evidence on the alternative
issue of benefit.

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Gang Graffiti

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This leaves [petitioner’s] contention that the evidence of gang
graffiti at Hanna’s residence was not substantial evidence that the
crimes were gang related. He notes that the graffiti appeared days
or weeks following the offense while he was incarcerated. In his
view, even if the graffiti was made by members of his gang, in
support of him, the graffiti’s presence is not probative of whether
defendant had committed the present crimes for the benefit of the
gang.

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For the reasons we have stated, it is not necessary to consider
whether the present crimes were committed for the benefit of the
gang. Thus, we need not address whether the graffiti is relevant to
the benefit issue. The conviction and true findings are not based
upon the graffiti and are supported by substantial evidence.
Lodged Doc. 1 at 10-15.
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D. Objective Unreasonableness Under 28 U.S.C. § 2254(d)

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The California Court of Appeal did not unreasonably apply clearly established federal

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law. As Jackson v. Virginia requires, the court reviewed the evidence in the light most favorable

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to the prosecution, and concluded that it supported a rational finding that the carjacking was

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gang-related. In light of the trial record as a whole, that conclusion was not unreasonable.

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Petitioner’s own acknowledged gang membership, and the fact that he committed the carjacking

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and robbery in concert with a fellow gang member, was enough to rationally support the jury’s

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conclusion as to Count III that he had assisted in the felonious conduct of another gang member.

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See Cal. Pen. Code § 186.22(a). The same facts support the inference that the crime was

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committed in association with the gang, and with the specific intent to assist in criminal conduct

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by gang member, as required for the gang enhancement. See Cal. Pen. Code 186.22 (b)(1). The

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inference that the carjacking was gang-related was not compelled by the evidence, but it was a

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rational inference and therefore may not be disturbed on post-conviction review. Jackson, 443

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U.S. at 326.

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This court may not disturb the state court’s holding that, as a matter of California law,

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evidence sufficient to support a finding that the crimes were committed in association with the

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gang moots the question whether there was sufficient evidence to prove that the crimes were

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committed for the benefit of the gang. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (federal

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habeas court bound by state court’s interpretation of state law).

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For these reasons, petitioner is not entitled to relief on Claim One.
IV.

Improper Expert Testimony

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A. Petitioner’s Claim

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Petitioner alleges that the trial court improperly allowed the prosecution expert to testify

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in the form of a hypothetical. ECF No. 1 at 4. He contends that his federal due process rights

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were violated by the erroneous testimony. Id. at 22-31.

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B. The Clearly Established Federal Law

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Errors of state law do not present constitutional claims cognizable in habeas. Pulley v.

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Harris, 465 U.S. 37, 41 (1984). The erroneous admission of evidence violates due process only if
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the evidence is so irrelevant and prejudicial that it renders the trial as a whole fundamentally

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unfair. Estelle v. McGuire, 502 U.S. 62 (1991).

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C. The State Court’s Opinion

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The California Court of Appeal, in the last reasoned decision adjudicating this issue, held

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as follows:
[Petitioner’s] sole objection was to the foundation for Sergeant
Kain’s opinion. That objection was initially sustained but ultimately
overruled. [Petitioner] did not object to either of Kain’s opinions,
i.e., that [petitioner] was a gang member, and that the hypothetical
crime would benefit the gang. In particular, [petitioner] did not
object on the specific ground asserted here, that Kain’s response to
the hypothetical scenario was improper opinion testimony. (Evid.
Code, § 353; People v. Geier (2007) 41 Cal.4th 555, 609.) Thus, the
claim is forfeited on appeal. (People v. Valdez (1997) 58
Cal.App.4th 494, 505 [failure to object to gang expert’s testimony
forfeits issue].)
[Petitioner’s] federal due process claim is forfeited for the same
reason. In People v. Partida (2005) 37 Cal.4th 428, on which
[petitioner] relies, “a timely and specific objection to the admission
of evidence was made on state law grounds. The issue was whether
that objection was sufficient to preserve a federal due process claim
where the due process claim was merely ‘an additional legal
consequence of objection from which it could be argued that the
constitutional claim flowed. Accordingly, we conclude that
[Petitioner’s] failure to object forfeits his [federal due process]
claim on appeal.” (People v. Geier, supra, 41 Cal.4th at pp. 610611.)
In any event, [petitioner’s] argument has no merit. The trial court
did not allow Sergeant Kain to “render the opinion that [petitioner]
committed the crimes for the benefit of his gang.” (Italics added.)
Rather, Kain opined that a hypothetical crime benefited a
hypothetical gang in several respects. “Even if expert testimony
regarding the defendants themselves is improper, the use of
hypothetical questions is proper.” (People v. Vang (2011) 52
Cal.4th 1038, 1047, fn. 3 (Vang).) [Footnote omitted.]
Thus, Sergeant Kain did not offer an improper opinion on
[petitioner’s] guilt, either of count III and the enhancements as a
whole or of the particular elements of knowledge and specific
intent. Opinions on guilt or innocence are inadmissible because the
trier of fact is as competent as a witness to weigh the evidence and
draw conclusions on the issue of guilt. (Vang, supra, 52 Cal.4th at
p. 1047.) “But [Kain] properly could, and did, express an opinion,
based on hypothetical questions that tracked the evidence, whether
the [offenses], if the jury found [they] in fact occurred, would have
been for a gang purpose.” (Id. at p. 1048.)

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[Petitioner] complains that the prosecutor used “a blatant
hypothetical where it is clear to everyone in the courtroom that the
person at issue in the hypothetical question was the defendant.” In
his view, it is “disingenuous” to allow experts to testify to the
ultimate facts at issue under the “guise” of hypothetical questions.
Vang rejected identical contentions explaining: “Hypothetical
questions must not be prohibited solely because they track the
evidence too closely, or because the questioner did not disguise the
fact the questions were based on the evidence.” (52 Cal.4th at p.
1051.)

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Finally, for the reasons expressed in Vang, admission of Sergeant
Kain’s opinion was not fundamentally unfair and did not violate
[petitioner’s] federal right to due process of law. (E.g., Estelle v.
McGuire (1991) 502 U.S. 62, 70 [116 L.Ed.2d 385, 397].) Reversal
is not required.

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Lodged Doc. 1 at 17-19.

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D. Procedural Default

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Respondent contends that petitioner’s claim is procedurally defaulted due to his failure to

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make a timely and specific objection. ECF No. 15 at 14. Respondent does not, however, brief

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the issue of default.
As a general rule, a federal habeas court will not review a claim rejected by a state court if

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the decision of the state court rests on a state law ground that is independent of the federal

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question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729

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(1991). The Ninth Circuit has squarely held that California’s contemporaneous objection rule is

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both independent and adequate within the meaning of Coleman and progeny, and therefore

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supports application of the procedural default doctrine. Melendez v. Pliler, 288 F.3d 1120, 1125

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(9th Cir. 2002); see also Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir.), cert. denied, 528

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U.S. 965 (1999). Accordingly, petitioner’s claim is defaulted absent a showing of cause for the

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default and actual prejudice as a result of the alleged violation of federal law. Coleman, 501 U.S.

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at 753.

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Petitioner has made no showing related to cause and prejudice. However, the undersigned

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finds that respondent’s one-sentence invocation of the procedural default doctrine, in what

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amounts to a throw-away line, did not put petitioner on notice of the need to do so. Accordingly,

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because the claim may be denied on the merits for the reasons now explained, the court exercises
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its discretion to bypass the issue of procedural default. See Franklin v. Johnson, 290 F.3d 1223,

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1232 (9th Cir. 2002).

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E. Objective Unreasonableness Under 28 U.S.C. § 2254(d)

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The state court reasonably held that Sgt. Kain’s testimony regarding the hypothetical did

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not violate the due process standards articulated by the United States Supreme Court in Estelle,

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supra. Even assuming for purposes of argument that the jury would have understood Sgt. Kain to

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be expressing an opinion as to petitioner’s guilt, no United States Supreme Court precedent

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clearly establishes that due process is violated by an expert opinion on an ultimate issue. See

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Moses v. Payne, 543 F.3d 1090, 1105-06 (9th Cir. 2008) (rejecting, as unsupported by clearly

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established federal law, claim that opinion testimony improperly intruded on the province of the

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jury and thereby violated due process). Indeed, the United States Supreme Court has never held

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that the admission of any type of evidence violates due process. See Holley v. Yarborough, 568

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F.3d 1091, 1101 (9th Cir. 2009) (Supreme Court has never “made a clear ruling that admission of

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irrelevant or prejudicial evidence constitutes a due process violation sufficient to warrant issuance

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of the writ.”). Accordingly, the state court cannot have unreasonably applied federal law within

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the meaning of the AEDPA. See Wright v. Van Patten, 552 U.S. at 125-26; Moses, 543 F.3d at

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1098.

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The Court of Appeal’s holding that the testimony was not improper is a determination of

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California law that may not be revisited here. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990)

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(federal habeas corpus relief does not lie for errors of state law); Bradshaw v. Richey, 546 U.S. at

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76 (federal habeas court bound by state court’s interpretation of state law). The only question

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cognizable in this court is whether admission of the testimony rendered the trial fundamentally

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unfair. Estelle, 502 U.S. at 72. In light of the trial record as a whole, it was not unreasonable of

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the Court of Appeal to answer that question in the negative. The defense had a full opportunity to

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cross-examine Sgt. Kain and to argue the issue to the jury, and the jury was properly instructed

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regarding the evaluation of expert testimony and the function of hypothetical questions. CT 84.5

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“Witnesses were allowed to testify as experts and to give opinions. You must consider the
(continued…)
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For these reasons, petitioner is not entitled to relief on Claim Two.
V.

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Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States

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District Courts, “[t]he district court must issue or a deny a certificate of appealability when it

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enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of

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appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either

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issue a certificate of appealability indicating which issues satisfy the required showing or must

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state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons

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set forth herein, petitioner has not made a substantial showing of the denial of a constitutional

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right. Therefore, no certificate of appealability should issue.

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CONCLUSION

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For all the reasons explained above, the state courts’ denial of petitioner’s claims was not

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objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS

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RECOMMENDED that the petition for writ of habeas corpus be denied.

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////

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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opinions, but you are not required to accept them as true or correct. The meaning and importance
of any opinion are for you to decide. . . . An expert witness may be asked a hypothetical question.
A hypothetical question asks the witness to assume certain facts are true and to give an opinion
based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If
you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that
fact in evaluating the expert’s opinion.” CT 84. See also CT 69 (prosecution burden and
standard of proof beyond a reasonable doubt), 70 (jury’s job to decide the facts), 72 (reliance on
circumstantial evidence to prove facts beyond a reasonable doubt), 73 (use of circumstantial
evidence to prove intent).

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Courts order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 8, 2015

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