Olivera-Beritan v. Asuncion

Filing 38

ORDER (1) Adopting Report and Recommendation [Doc. No. 25 ]; (2) Rejecting Petitioner's Objections [Doc. No. 36 ]; (3) Denying the Petition for Writ of Habeas Corpus [Doc. No. 1 ]; (4) Denying Certificate of Appealability [Doc. No. 34 ]; (5) Granting Motion to Exceed Page Limit [Doc. No. 36 ]; and Denying Motion for Hearing and Appointment of Counsel [Doc. No. 16 ]. Signed by Judge Cathy Ann Bencivengo on 1/8/2018. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE OLIVERA-BERITAN, Case No.: 3:16-cv-2646-CAB-(PCL) Petitioner, 12 13 v. 14 ORDER (1) ADOPTING REPORT AND RECOMMENDATION [Doc. No. 25]; (2) REJECTING PETITIONER’S OBJECTIONS [Doc. No. 36]; (3) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 1]; (4) DENYING CERTIFICATE OF APPEALABILITY [Doc. No. 34]; (5) GRANTING MOTION TO EXCEED PAGE LIMIT [Doc. No. 36]; and DENYING MOTION FOR HEARING AND APPOINTMENT OF COUNSEL [Doc. No. 16.] DEBRA ASUNCION, 15 Respondent. 16 17 18 19 20 21 22 Jose Olivera-Beritan (“Petitioner”), is a state prisoner proceeding pro se with a 23 Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 24 2254. [Doc. No. 1.] This matter was referred to the United States Magistrate Judge Peter 25 C. Lewis pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Lewis issued a Report 26 and Recommendation (“Report”) recommending the Court deny the petition. [Doc. No. 27 25.] Petitioner filed objections to the Report. [Doc. No. 36.] 28 1 3:16-cv-2646-CAB-(PCL) 1 Following de novo review of Petitioner’s claims, the Court finds the Report to be 2 thorough, complete, and an accurate analysis of the legal issues presented in the petition. 3 For the reasons explained below, the Court: (1) adopts the Report in full; (2) rejects the 4 Petitioner’s objections; (3) denies the writ of habeas corpus; and (4) denies a certificate of 5 appealability. Additionally, the Court grants the motion to exceed page limits and denies 6 the motion for hearing and appointment of counsel. 7 I. 8 A. Factual Background 9 BACKGROUND The Report contains an accurate recital of the facts as determined by the California 10 Court of Appeal, and the Court fully adopts the Report’s statement of facts. 11 magistrate judge correctly notes, the Court presumes state court findings of fact to be 12 correct. 13 As the B. State Procedural Background 14 The Report contains a complete and accurate summary of the state court 15 proceedings, and the Court fully adopts the Report’s statement of state procedural 16 background. 17 C. Federal Procedural Background 18 On 2017, Petitioner filed a Petition for a writ of habeas corpus challenging his San 19 Diego County Superior Court convictions. [Doc. No. 1.] Respondent filed an Answer to 20 the Petition, and lodged portions of the state court record. [Doc. Nos. 10, 11.] Petitioner 21 filed a Traverse. [Doc. No. 20.] 22 On April 5, 2017, Petitioner filed a Motion for Hearing and Appointment of Counsel. 23 [Doc. No. 16.] On November 15, 2017, Petitioner filed a Motion for Certificate of 24 Appealability. [Doc. No. 34.] 25 On July 24, 2017, Magistrate Judge Peter C. Lewis issued a Report recommending 26 that the petition for writ of habeas corpus and motion for an evidentiary hearing and 27 appointment of counsel be denied. [Doc. No. 25.] On November 16, 2017, after being 28 granted applications for enlargement of time, Petitioner filed his Objections along with a 2 3:16-cv-2646-CAB-(PCL) 1 Motion to Exceed Page Limit. [Doc. No. 36.] Within his objection, Petitioner argues that 2 the magistrate judge erred in finding that the state court did not make an unreasonable 3 application of clearly established federal law or an unreasonable determination of facts in 4 light of the evidence. Because Petitioner has objected to the Report in its entirety, the Court 5 reviews the Report de novo. 28 U.S.C. § 636(b)(1)(C); Holder v. Holder, 392 F.3d 1009, 6 1022 (9th Cir. 2004). 7 II. 8 A. Legal Standard 9 10 11 12 13 14 15 16 DISCUSSION The Report sets forth the correct standard of review for a petition for writ of habeas corpus. 28 U.S.C. § 2254(d) provides: (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(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 17 18 19 20 21 22 23 24 25 26 27 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 403, 123-13 (2000). Under § 2254(d)(1), a state court’s decision is “contrary to” clearly established federal law if the state court “arrives at a conclusion opposite to that reached by this Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.” Williams, 529 U.S. at 405. A state court’s decision is an “unreasonable application” if the application was “objectively unreasonable.” Lockyear v. Andrade, 538 U.S. 63, 75-76 (2003). Further, § 2254(d)(2) habeas relief is not available due to a state court’s “unreasonable determination of the facts” unless the underlying factual determinations were objectively unreasonable.” See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see 28 3 3:16-cv-2646-CAB-(PCL) 1 also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds 2 reviewing the record might disagree” does not render a decision objectively unreasonable). B. Analysis of Petitioner’s Claims 3 4 Petitioner raises nine claims in his Petition, all based on purported violations of his 5 federal constitutional rights. Specifically he claims: (1) if the accomplice testimony of 6 Carlos Pena and Guillermo Moreno-Garcia is set aside there is insufficient evidence to 7 support his convictions for attempted kidnapping of Martinez-Barrera, the first degree 8 murders of Ivan Lozano, Jr., Uribe and Marc Leon, Jr. , and the Uribe and Leon 9 kidnappings [Doc. No. 1 at 9-18]; (2) his convictions for murdering Lozano and Leon under 10 the natural and probable consequences theory of aider and abettor liability are invalid 11 following a change in substantive law [Id. at 19-28]; (3) his right to confront witnesses was 12 violated by the admission of hearsay testimony from Adrian Gonzalez that David Valencia 13 said Uribe owed Valencia money [Id. at 30-34]; (4) his appellate counsel failed to challenge 14 the purposeful racial discrimination he contends occurred in the selection of the jury [Id. 15 at 36-37]; (5) he was not a major participant in the murders and is therefore ineligible for 16 sentences of life without the possibility of parole [Id. at 38]; (6) he was prejudiced by the 17 denial of his motion for severance of his trial from that of Valencia’s and request for dual 18 juries. Relatedly, he asserts that both his trial and appellate counsel were ineffective by 19 failing to raise these arguments at trial or on appeal [Id. at 39-45]; (7) the trial court erred 20 in its evidentiary and discovery rulings with respect to the gang enhancement evidence [Id. 21 at 46-59]; (8) the trial court imposed restitution fines were made in error because his ability 22 to pay was not considered [Id. at 60-65]; and (9) his state habeas petitions were denied on 23 the pretext he did not present a prima facie case for relief [Id. at 66-70]. 24 /// 25 /// 26 /// 27 /// 28 4 3:16-cv-2646-CAB-(PCL) 1 1. Claim One: Insufficient Evidence To Corroborate Accomplice Testimony. 2 Petitioner argues that his federal due process rights guaranteed under the Fourteenth 3 Amendment were violated because California Penal Code section 11111, which bars 4 conviction of a defendant based on the uncorroborated testimony of an accomplice witness, 5 creates an entitlement to a particular process and resulting liberty interest that cannot be 6 arbitrarily denied. [Doc. No. 1 at 9.] Petitioner asserts that no witnesses, aside from his 7 alleged accomplices, Guillermo Moreno-Garcia and Carlos Pena, identified him or testified 8 as to his role in the first degree murders of Lazano, Uribe and Leon and the kidnappings of 9 Uribe and Leon. [Id. at 9-18.] Further, Petitioner claims that he was convicted merely on 10 the evidence of his participation in the Gonzalez-Tostado kidnapping and the evidence of 11 the modus operandi of the Los Palillos, a cell of the Arellano-Felix Organization Mexican 12 drug cartel, of which he was alleged to be a member. In Petitioner’s view, this evidence 13 was insufficient to corroborate Moreno-Garcia and Pena’s accomplice testimony. [Id. at 14 11.] 15 As correctly noted by Judge Lewis, there is no clearly established federal law 16 requiring accomplice testimony be corroborated. See Laboa v. Calderon, 224 F.3d 972, 17 979 (9th Cir. 2000) (holding that although California Penal Code section 1111, prohibits 18 convictions based only on uncorroborated accomplice testimony, “[a]s a statutory rule, and 19 to the extent that the uncorroborated testimony is not ‘incredible or insubstantial on its 20 face,’ the rule is not required by the Constitution or federal law.”) See also U.S. v. 21 Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993) (“The uncorroborated testimony of an 22 accomplice is enough to sustain a conviction unless it is incredible or insubstantial on its 23 face.”) Here, Petitioner is not claiming, and the record does not suggest, that the 24 25 26 27 28 Section 1111 provides: “[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable for prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” CAL. PENAL CODE § 1111. 1 5 3:16-cv-2646-CAB-(PCL) 1 accomplice testimony of Moreno-Garcia and Pena was neither incredible nor insubstantial 2 on its face. 3 In his objections, Petitioner states that the magistrate judge was mistaken in finding 4 that the evidence presented during the state court trial satisfied the corroboration standard 5 required by that state rule. [Doc. No. 36 at 11-29.] Petitioner argues that the fact that his 6 alias was used in relation to the payment of rent on the Garber Avenue safe house does not 7 establish that he was involved in renting the residence or was living there when the murders 8 were committed, and that even if he was living at the Garber Avenue address “residency 9 does not necessarily establish presence when the crimes occurred.” [Id. at 15- 18.] 10 However, the Court agrees with Judge Lewis that, assuming arguendo Petitioner had a 11 federal due process right to corroboration of accomplice testimony, all of the evidence 12 summarily outlined below satisfies the requirement that corroborative evidence “need only 13 connect the defendant to the crime sufficiently for the Court to conclude the jury reasonably 14 could have been satisfied that the accomplice was telling the truth.” People v. Letner & 15 Tobin, 50 Cal. 4th 99, 185-186 (2010) (corroborative evidence may be circumstantial, of 16 little weight by itself, and related merely to one part of an accomplice’s testimony). 17 Petitioner’s related argument that “the evidence of guilt was tainted because it was 18 established by evidence that could not satisfy the reasonable doubt standard under state 19 evidentiary rules and decisional law” is equally without merit. [Doc. No. 36 at 23-24.] 20 The fact that evidence was circumstantial and limited does not mean that guilt was not 21 proven beyond a reasonable doubt. Circumstantial evidence can be used to prove any fact. 22 See U.S. v. Ramirez-Rodriguez, 552 F.2d 883, 884 (9th Cir. 1977) (“Circumstantial and 23 testimonial evidence are indistinguishable insofar as the jury fact-finding function is 24 concerned”). In determining whether any rational trier of fact could have found proof of 25 guilt beyond a reasonable doubt, a reviewing court must view the evidence in the light most 26 favorable to the prosecution and presume the trier of fact resolved all conflicts in the 27 evidence in favor of the prosecution. Jackson v. Virginia, 443 U.S. 307, 324 (1979). Here, 28 6 3:16-cv-2646-CAB-(PCL) 1 there was sufficient evidence that could lead a rational jury to conclude that Petitioner was 2 guilty of the crimes with which he was charged. 3 As Judge Lewis’s explicitly noted, the accomplice testimony of Moreno-Garcia and 4 Pena regarding Petitioner’s role in the kidnappings and murders2, was corroborated by 5 evidence presented at trial. Notwithstanding the rent payment evidence involving the use 6 of one of Petitioner’s alias, evidence that corroborated the accomplice testimony was 7 provided in the form of: (1) spare parts from the car Garcia said Petitioner stole and was 8 used to dump Lozano’s body were found in the garage of the Garber Avenue house [RT 9 9101-12, 13713-26]; (2) telephone calls made from the Garber Avenue house’s landline to 10 Petitioner’s cell phone [RT 13505]; (3) a photograph of a person who looked like Petitioner 11 using an ATM to withdraw money from Uribe’s bank account [RT 12816-20; 14374]; (4) 12 Tostado’s bank card was in Petitioner’s possession when he was arrested [RT 1410-11, 13 14344, 14374]; (5) Petitioner was the only Cuban member of Los Palillos at the time of the 14 kidnappings and murders [RT 4849-50, 5303-06, 5026-28, 5313, 14347, 14374]; (6) 15 Gonzalez-Tostado identified Petitioner as the Cuban guard who often used a laptop 16 computer [RT 9648-50]; (7) a laptop seized from the Point Dume residence contained 17 photographs showing Petitioner: a) at the Garber Avenue residence on a laptop; b) standing 18 next to his Chevrolet Equinox outside the Point Dume house where he was arrested. [RT 19 13214-13220, 12816-20]; (8) the Point Dume house was identified by Jorge Garcia 20 Vazquez (“Kilino”), one of the Garber Avenue kidnap victims, as the residence used in his 21 kidnapping. 22 Petitioner’s girlfriend as the abode where the wife of a high ranking member of Los Palillos 23 found a bundle of cash [RT 13270-75]; (10) when Jorge Rojas Lopez and Rojas-Gamez 24 were arrested they were in possession of marked bills from the ransom money [RT 11031- 25 32]; (11) human remains were found at the Imperial Beach ranch exactly where Pena said [RT 13844-48, 13906-19]; (9) Garber Avenue was also identified by 26 27 28 2 See Report [Doc. No. 25 at 49-50] for an accurate summary of the accomplice testimony. 7 3:16-cv-2646-CAB-(PCL) 1 he had dumped the barrels with the remains of Uribe and Leon inside [RT 12837-927]; and 2 (12) Lozano’s body had Taser injuries and a Taser gun, with Petitioner’s DNA on it was 3 found in the couch on which Petitioner was sitting when the FBI raided the Point Dume 4 house. Records illustrate that the Taser gun was discharged 5 times on the day Lozano was 5 abducted, 8 times on the day Uribe and Leon were abducted, and several times while Uribe 6 and Leon were being held at the Garner Avenue residence [RT 9208-20, 13007-36.]. 7 Further evidence that corroborates the accomplice testimony is provided in the 8 testimony of Vazquez, Gonzalez Tostado and Hernandez. Vasquez testified that one of his 9 captors was Cuban and that he was shot with a Taser and identified the Garber Avenue 10 house as the place where he was held. [RT 4244, 4328-36, 4403.] He also testified that 11 one of the men who guarded him was a foreigner with a Cuban or Venezuelan accent who 12 was called “El Cubano,” and Gonzalez-Tostado testified that one of his guards was called 13 “Asere,” nicknames by which Petitioner was known. [RT 1609-1610, 9639-41, 9724.] 14 Additionally, Lourdes Hernandez testified that Martinez was lured to the Briarwood 15 apartment complex by Juan Laureano-Arvizu so that he could be abducted by some of the 16 members of Los Palillos disguised as police officers and that, when the plan went awry, 17 the kidnappers drove to the Garber Avenue safe house. [RT 3574-617.] 18 Thus, the jury was presented with not only the accomplice testimony of Moreno- 19 Garcia and Pena, but also corroborative evidence that Petitioner participated in the 20 attempted kidnapping of Martinez-Barrera by helping plan his abduction, acting as lookout, 21 and preventing Martinez-Barrera’s escape, sufficient to support the jury’s guilty verdicts. 22 See Coleman v. Johnson, 566 U.S. 650, 654 (2012) (“Under Jackson, evidence is sufficient 23 to support a conviction, if ‘after viewing the evidence in the light most favorable to the 24 prosecution, any rational trier of fact could have found the essential elements of the crime 25 beyond a reasonable doubt.” (citing Jackson, 443 U.S. at 319) (emphasis in original)). 26 Sufficient evidence was also presented that Petitioner directly participated in the 27 kidnappings of Lozano, Uribe and Leon, directly participated in the murders of Uribe and 28 Leon and facilitated the murder of Leon to support the jury’s guilty verdicts. See Jackson, 8 3:16-cv-2646-CAB-(PCL) 1 443 U.S. at 319 (juries have broad discretion in deciding what inferences to draw from the 2 evidence presented at trial, with the jury only being required to “draw reasonable inferences 3 from basic facts to ultimate facts.”). Therefore, it cannot be said that the jury’s findings 4 were “so insupportable as to fall below the threshold of bare rationality.” Coleman, 566 5 U.S. at 658. Accordingly, the Court rejects the Petitioner’s objections, adopts the Report 6 and denies the petition as to this claim. 7 2. Claim Two: Convictions Based on Natural and Probable Theory of Aider 8 and Abettor Liability. 9 Petitioner argues that his convictions for murdering Lozano and Leon under the 10 natural and probable consequences theory3 of aider and abettor liability are invalid 11 following the change in substantive law set forth in People v. Chiu, 59 Cal. 4th 155 (2014) 12 [Doc. No. 1 at 19-28]4. Petitioner contends that the holding in Chiu, which “took the 13 natural and probable consequence theory off the table entirely as a ground for a first-degree 14 murder conviction,” applies with equal force when vicarious liability is based on a 15 conspiracy theory. [Id. at 22-24.] Further, he asserts that because such a theory was used 16 as a basis for his convictions two of his first-degree murder convictions must be reversed. 17 [Id.] But, as Judge Lewis correctly noted, Petitioner has cited no authority for the 18 proposition that Chiu has been extended to include situations where the jury was instructed 19 on the natural and probable consequences theory of conspiracy and that the murder must 20 be willful, deliberate and premeditated. See Chiu, 59 Cal. 4th at 166 (holding that a 21 defendant cannot be convicted of first degree premeditated murder under the natural and 22 probable consequences doctrine). In his objections, Petitioner states that the magistrate 23 24 25 26 27 28 An aider and abettor is guilty not only of the intended crime, but also “for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.” People v. McCoy, 25 Cal. 4th 1111, 1117 (2001). 4 Petitioner states that “the jury was instructed on the alternate first-degree and felony murder theories of liability; they were also instructed on direct perpetrator, aider and abettor , and conspirator theories of liability and the applicability of the natural and probable consequences doctrine to the latter two vicarious liability theories.” [Doc. No 1 at 21.] 3 9 3:16-cv-2646-CAB-(PCL) 1 judge erroneously distinguished applying the doctrine under conspiracy liability versus 2 under an aiding and abetting theory of liability and used the distinction to preclude 3 application of Chiu to conspiracy prosecutions. [Doc. No. 36 at 30.] 4 As accurately reported by Judge Lewis, Petitioner has not shown that an instruction 5 on a natural and probable consequence theory of aiding and abetting liability, rather than 6 an instruction on the natural and probable consequences theory of conspiracy liability, was 7 presented to the jury.5 [Doc. No. 25 at 58.] See Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) 8 (federal constitutional error occurs when a general verdict is returned by a jury instructed 9 on two theories of guilt, one of which was legally correct and one legally incorrect, but 10 only when it is impossible to determine which theory the jury relied upon). Petitioner’s 11 jury was instructed on both first-degree murder and felony murder, and as Judge Lewis 12 explained, the Chiu court expressly noted its holding “does not affect or limit an aider and 13 abettor’s liability for first degree felony murder under section 189 [of the Penal Code].” 14 Chiu, 59 Cal. 4th at 166. Therefore, not only is Petitioner’s reliance on Chiu misplaced, 15 he has also failed to demonstrate that his jury was instructed on an invalid theory of 16 liability, and as a consequence, has not demonstrated the existence of a federal 17 constitutional error. The conviction for aiding and abetting murder during the commission 18 of a kidnapping was sufficient to preclude relief under Chiu. 19 Furthermore, Judge Lewis’ was correct in his analysis that even if the jury was 20 instructed on an invalid theory along with valid theories, and assuming this instruction 21 amounted to federal error, any such error was harmless because it did not have “a 22 substantial and injurious effect or influence in determining the jury’s verdict.” See Brecht 23 v. Abrahamson, 507 U.S. 619, 623 (1993) (a federal habeas court must determine if it is 24 harmless by examining whether the flaw in the instructions “had a substantial and injurious 25 effect or influence in determining the jury’s verdict.”) Upon consideration of the fact that 26 27 5 28 See Report at pages 55-57 for a recitation of the instructions presented to the jury regarding the first degree murder and felony murder theories. 10 3:16-cv-2646-CAB-(PCL) 1 the jury convicted Petitioner of the kidnappings of Lozano, Uribe and Leon, returned true 2 findings as to the special circumstances allegations that all three murders were committed 3 during the course of a kidnapping, and in light of the ample evidence presented to the jury 4 that supports a finding that Petitioner directly aided and abetted6 the willful, deliberate and 5 premeditated murder of Lozano and Leon (a theory permissible under Chiu), the Court is 6 not left “in grave doubt about the likely effect of an error.” Padilla v. Terhune, 309 F.3d 7 614, 621-22 (9th Cir. 2002) (“an error is harmless unless the record leaves the 8 conscientious judge in grave doubt about the likely effect of the error . . . (i.e.,) that, in the 9 judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as 10 to the harmlessness of the error.”) (internal quotation marks and citations omitted). 11 Accordingly, the Court rejects the Petitioner’s objections, adopts the Report and denies the 12 petition as to this claim. 13 3. Claim Three: Admission of Hearsay Evidence. 14 Petitioner argues his right to confront witnesses was violated by the admission of 15 hearsay testimony from Adrian Gonzalez. [Doc. No. 1 at 30-34.] Gonzalez testified that 16 David Valencia said Uribe owed Valencia money and that, when Uribe paid his debt to 17 Valencia, Valencia would, in turn, pay Gonzalez the $9,000.00 he owed in back rent. [Id. 18 at 30]. Petitioner asserts the testimony of Gonzalez that Valencia said Uribe owed him 19 $70,000 was “being offered as proof of Valencia’s belief and the fact that his belief 20 motivated him to participate in a crime against Uribe” and that this was inadmissible 21 hearsay. [Id. at 31.] However, as correctly recited by the magistrate judge, “[t]he Supreme 22 23 24 25 26 27 28 Under California law, an aider and abettor must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” People v. Beeman, 35 Cal. 3d 547, 560 (1984). See also Chiu, 59 Cal. 4th at 166-67 (“Aiders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles. Under those principles, . . . [a]n aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder. (Id.) 6 11 3:16-cv-2646-CAB-(PCL) 1 Court has made very few rulings regarding the admission of evidence as a violation of due 2 process…, it has not yet made a clear ruling that admission of irrelevant or overtly 3 prejudicial evidence constitutes a due process violation sufficient to warrant issuance of 4 the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (2009). Therefore, absent a clearly 5 established federal law, the Court cannot conclude that the state court’s ruling as to the 6 evidentiary issues was an unreasonable application. 7 Petitioner’s related argument that Valencia’s statements to Gonzalez were 8 testimonial in nature and were considered by the jury in convicting Petitioner of “counts 5, 9 6 and 5 [sic]” is equally unpersuasive. [Doc. No. 1 at 34.] As Judge Lewis correctly noted, 10 the Confrontation Clause “guarantees the defendant a face-to-face meeting with witnesses 11 appearing before the trier of fact.” 12 Notwithstanding the guarantees offered by the clause, “where necessary, the admission of 13 certain hearsay statements against a defendant despite the defendant’s inability to confront 14 the declarant at trial” is permitted and its protections do not extend to non-testimonial 15 evidence. Maryland v. Craig, 497 U.S. 836, 847-48 (1990); Davis v. Washington, 547 U.S, 16 813, 821 (2006). For example, if a witness is unavailable and there was a prior opportunity 17 for cross-examination, introduction of the witness’s prior testimonial statement is 18 permitted and does not violate a defendant’s confrontation rights. Crawford v. Washington, 19 541 U.S. 36, 68 (2004).7 Coy v. Iowa, 487 U.S. 1012, 1016 (1998). 20 In his objections, Petitioner contends that the magistrate judge erroneously 21 determined: (1) Valencia’s statements were not testimonial hearsay; (2) Valencia’s 22 testimony was insignificant in light of other evidence; and (3) any error in admitting 23 Valencia’s testimony did not have a substantial and injurious effect or influence on the 24 jury’s verdict. [Doc. No. 36 at 36, 37.] The Court agrees with Judge Lewis that the 25 statement Valencia made to his landlord about paying his past due rent does not amount to 26 27 But, “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51. 7 28 12 3:16-cv-2646-CAB-(PCL) 1 testimonial evidence. See Crawford, 541 U.S. at 51-52 (testimonial statements are the 2 functional equivalent of court testimony, and include affidavits, depositions, custodial 3 examinations, prior testimony, confessions and pretrial statements that the declarant would 4 reasonably expect to be used prosecutorially.”) Valencia’s statements to Garcia were by 5 their nature non-testimonial because Valencia could not have reasonably anticipated that 6 casual remarks to a landlord would later be used as evidence against himself and his 7 accomplices. Further, the statement is not accusatory, was not made in a formal setting 8 and bears no resemblance to the “various formulations of th[e] core class of testimonial 9 statements” provided in Crawford. See Id. Thus, the trial court did not violate Petitioner’s 10 federal constitutional right to confrontation by admitting Gonzalez’s testimony regarding 11 the conversation between himself and Valencia. 12 Moreover, even if the admission of Valencia’s statements through Gonzalez did 13 violate Petitioner’s rights under the Confrontation Clause, Judge Lewis was correct in 14 finding Petitioner would still not be entitled to habeas relief. “A showing of constitutional 15 error under the Sixth Amendment only merits grant of the petition for habeas corpus if the 16 error was not harmless, that is, if it had a ‘substantial and injurious effect or influence in 17 determining the jury’s verdict.’” Holley v. Yarborough, 568 F.3d at 1100 (citation 18 omitted). The admission of Gonzalez’s testimony was harmless under any standard of 19 prejudice because it is inconsequential in light of the other evidence presented to support 20 the role Valencia played in the crimes, and did very little if anything to incriminate 21 Petitioner. Additionally, in light of the fact that the jury was instructed that certain 22 evidence was admitted only against certain defendants and the insignificance of the 23 challenged testimony, nothing in the record suggests that the alleged error rises to the level 24 necessary to warrant habeas relief. See Brecht 507 U.S. at 628-29. Accordingly, the Court 25 rejects the Petitioner’s objections, adopts the Report and denies the petition as to this claim. 26 27 28 13 3:16-cv-2646-CAB-(PCL) 1 2 4. Claim Four: Racial discrimination and ineffective assistance of appellate counsel. 3 Within Claim 4, Petitioner makes two arguments. First, he contends that purposeful 4 racial discrimination occurred in the selection of the jury; his defense counsel made a prima 5 facie showing of racial discrimination after the prosecutor dismissed potential jurors 49, 6 96, 118, 137 who were all African-American jurors; and the trial judge erred in finding that 7 no prima facie showing had been made. [Doc. No. 1 at 36-37.] Second, Petitioner posits 8 that his appellate counsel’s failure to raise his racial discrimination/Batson-Wheeler claim 9 on appeal and his failure to order the record of the voir dire and jury selection process, 10 rendered counsel’s assistance ineffective. [Id..] 11 A single strike of an African-American juror for racial reasons violates the equal 12 protection clause. Batson v. Kentucky, 476 U.S. 79, 95-96 (1986). As Judge Lewis 13 accurately recounted, when the State’s removal of a juror is challenged under Batson, a 14 three step process is performed: (1) defendant must make out a prima facie case by showing 15 that the totality of the relevant facts give rise to an inference of discriminatory purpose; (2) 16 upon such a showing the burden shifts to the State to explain adequately the racial exclusion 17 by offering permissible race-neutral justifications for the strike; and (3) if a race-neutral 18 explanation is tendered, the trial court must then decide whether the opponent of the strike 19 has proved purposeful racial discrimination. Johnson v. California, 545 U.S. 162, 168 20 (2005). “[A] defendant satisfies the requirements of Batson’s first step by producing 21 evidence sufficient to permit the trial judge to draw an inference that discrimination has 22 occurred.” Id. at 170. The transcript of the Batson motion hearing clearly illustrates that 23 defense counsel simply pointed out that the prosecutor had removed four African- 24 American jurors from the panel, but failed to show or allege that the removal was done for 25 a discriminatory purpose, that it had a discriminatory impact or indicate the total number 26 of African-American potential jurors in the venire or on the panel. [Doc. No. 11-110 at 27 221-222.] Furthermore, the record indicates that the Prosecutor did not disproportionately 28 use his preemptory challenges to dismiss minority jurors; he used 25 preemptory 14 3:16-cv-2646-CAB-(PCL) 1 challenges, four of which were used to excuse African-Americans, [Id.] – meaning only 16 2 percent of his challenges were used to excuse minority jurors. 3 Notwithstanding Petitioner’s arguments to the contrary in his objections [Doc. No. 4 36 at 40-44], defense counsel did not provide any support for his Batson motion and, as a 5 consequence, did not satisfy the first step of making a prima facie case. See Johnson, 545 6 U.S at 168 (“defendant must make out a prima facie case by showing that the totality of 7 the relevant facts gives rise to an inference of discriminatory purpose.”) (internal quotation 8 marks and citation omitted); Washington v. Davis, 426 U.S. 22, 29-42 (1976) (an act 9 challenged solely because it has a racially disproportionate impact “without regard to 10 whether it reflects a racially discriminatory purpose” is not unconstitutional); Cooperwood 11 v. Cambra, 245 F.3d 1042, 1048 (9th Cir. 2001) (the fact that African-Americans remained 12 on the panel when the challenges were made generally weighs against an inference of 13 discrimination.) Thus, the Court agrees with Judge Lewis that the trial court’s rejection 14 was not objectively unreasonable nor an unreasonable determination of the facts. See Rice, 15 546 U.S. at 338-39 (state court factual findings in the Batson context are presumed correct, 16 and a federal habeas “petitioner has the burden of rebutting the presumption by ‘clear and 17 convincing evidence’”) (quoting 28 U.S.C. § 1154(e)(1). Accordingly, the Court rejects 18 the Petitioner’s objections, adopts the Report and denies the petition as to this portion of 19 the fourth claim.8 20 As to the ineffective assistance of appellate counsel portion of the claim, a petitioner 21 making such a claim must show that counsel failed to find non-frivolous arguable issues 22 and, but for counsel’s failure to file a merits brief on the issue, the petitioner would have 23 prevailed on his appeal. Smith v. Robbins, 528 U.S. 259, 288 (2000). (Applying standard 24 laid out in Strickland v. Washington, 466 U.S. 668, 687 (1994), to challenge counsel’s 25 26 27 28 Additionally, Judge Lewis was correct when he noted that Petitioner, “failed to allege in state court, as he has here, how the voir dire transcripts support his claim.” [Doc. No. 25 at 73.] Petitioner could have, but did not, provide the Court with information regarding what was contained in the voir dire transcripts. 8 15 3:16-cv-2646-CAB-(PCL) 1 effectiveness on appeal). Failure to raise an argument on appeal does not constitute 2 ineffective assistance because counsel has discretion to decline to raise arguments that 3 he/she foresees has little or no likelihood of success. Smith, 528 U.S. at 288; Wildman v. 4 Johnson¸ 261 F.3d 832, 840 (9th Cir. 2001) (“appellate counsel’s failure to raise issues on 5 direct appeal does not constitute ineffective assistance when appeal would not have 6 provided grounds for reversal.”) Rather, to successfully make an ineffective assistance of 7 counsel claim Petitioner must show that counsel’s performance was deficient and that the 8 deficiency prejudiced the defense. Strickland, 466 U.S. at 687. As Judge Lewis explained, 9 this requires Petitioner demonstrate “counsel made errors so serious that counsel was not 10 functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and the 11 deficient performance deprived defendant of “a fair trial, a trial whose result is reliable.” 12 Id. at 687. Further Petitioner must establish “that there is a reasonable probability that, but 13 for counsel’s unprofessional errors, the result of the proceeding would have been 14 different.” Id. at 694. Here, Petitioner has not overcome Strickland’s high bar and 15 demonstrated that his appellate counsel’s conduct regarding the Batson motion and voir 16 dire transcripts was unreasonable. Neither has Petitioner demonstrated that, even assuming 17 the challenged conduct was unreasonable and more than a strategic decision, he suffered 18 sufficient prejudice to warrant setting aside his sentences. Accordingly, the Court rejects 19 the Petitioner’s objections, adopts the Report and denies the petition as to this portion of 20 the fourth claim. 21 5. Claim Five: Ineligibility for sentences of life without the possibility of parole. 22 Petitioner argues that because he was not a major participant in the murders and he 23 is, therefore, ineligible for sentences of life without the possibility of parole. [Doc. No. 1 24 at 38.] Major participation in a criminal enterprise occurs when a defendant is “actively 25 involved in every element” of the underlying crimes “and was physically present during 26 the entire sequence of criminal activity culminating in the murder.” See People v. Banks, 27 61 Cal. 4th 788, 802 (2015). 28 participation in criminal activities known to carry a grave risk of death was sufficiently Ultimately, the question is “whether the defendant’s 16 3:16-cv-2646-CAB-(PCL) 1 significant to be considered major.” Banks, 61 Cal. 4th at 803 (identifying a handful of 2 factors that may be considered in order to evaluate whether a defendant is sufficiently 3 culpable to warrant the penalty awarded9) (internal quotation marks and citations omitted). 4 As Judge Lewis correctly surmised, a de novo review of the record10 illustrates that 5 a myriad of evidence was presented to the jury regarding Petitioner’s participation in the 6 crimes that is sufficient to support the life sentences without parole imposed. For example, 7 evidence was presented that Petitioner deliberately chose to join the Los Palillos crew, 8 participated in at least one of the crew’s kidnappings, lived at and rarely left the safe house 9 where the three murders were committed, purchased the supplies necessary to concoct the 10 acid mix used to dissolve the bodies of Leon and Uribe, guarded all three victims leading 11 up to their murders, kicked Uribe and Leon while they were being strangled to death, 12 participated in the barbeque organized to mask the smell of the disintegrating bodies, 13 cleaned and sterilized the residence after the murders, participated in the dumping of 14 Lozano’s body, and a Taser gun that was discharged on the dates of the kidnappings and 15 murders tested positive for Petitioner’s DNA. Furthermore, the kidnappings and murders 16 of Uribe and Leon occurred after Petitioner had already participated in the earlier Lozano 17 kidnapping and murder. See Banks, 61 Cal. 4th at 804-805. In light of this evidence a 18 reasonable jury could infer that Petitioner’s own actions and inactions caused him to be a 19 20 21 22 23 24 25 26 27 28 Factors to be considers include: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inactions play a particular role in the death? [footnote omitted] What did the defendant do after lethal force was used?” Banks, 61 Cal. 4th at 338-39. 10 As noted by the magistrate judge, owing to Petitioner’s failure to exhaust the state judicial remedies, and because any attempt to seek further post-conviction relief would meet with the imposition of a procedural bar, de novo review of this claim is appropriate. See Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005) (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”) (quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991). 9 17 3:16-cv-2646-CAB-(PCL) 1 major participant in the kidnappings and deaths of Lozano, Uribe and Leon and that he 2 acted with reckless indifference to human life. 3 Petitioner’s objections, adopts the Report and denies the petition as to this claim. Accordingly, the Court rejects the 4 6. 5 Petitioner argues he was prejudiced by the denial of his motion for severance of his 6 trial from that of Valencia’s and his request for dual juries. [Doc. No. 1 at 39-44.] Further, 7 he claims that the court’s limiting instruction regarding evidence admitted against his co- 8 defendant Valencia was “wholly inadequate to prevent the jury from applying the evidence 9 against Petitioner.” [Id. at 40.] Relatedly, Petitioner asserts that both his trial and appellate 10 counsel were ineffective by failing to raise these arguments at trial or on appeal. [Id. at 11 45.]11 Claim Six: Denial of requests to sever trials and for separate juries. 12 As Judge Lewis correctly noted, a fundamentally unfair state criminal trial can rise 13 to the level of a federal due process violation. California v. Trombetta, 467 U.S. 479, 485 14 (1984) (“Under the Due Process Clause of the Fourteenth Amendment, criminal 15 prosecutions must comport with prevailing notions of fundamental fairness.”). However, 16 it has not been clearly established whether and to what to degree a failure to sever charges 17 rises to the level of a federal due process violation. See, e.g., Collins v. Runnels, 603 F.3d 18 1127, 1132-33 (9th Cir. 2010) (concluding that Supreme Court’s holdings in U.S. v. Lane, 19 474 U.S. 438 (1986) and Zafiro v. U.S., 506 U.S. 534 (1993) “establish a constitutional 20 standard binding on the states requiring severance”)12. Accordingly, it would be improper 21 for the Court to conclude that the state court’s determination of these portions of 22 23 24 25 26 27 28 11 Petitioner does not provide specific objections as to the sixth claim. In Lane, the Supreme Court concluded that when it comes to federal defendants “improper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial. 474 U.S. 438, 446 n.8. In Zafiro the Supreme Court held that under Federal Rule of Criminal Procedure 14(a) severance is not automatically necessary where co-defendants present mutually antagonistic defenses. 506 U.S. 534. Moreover, “it is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials.” Id. at 540 12 18 3:16-cv-2646-CAB-(PCL) 1 Petitioner’s sixth claim were contrary to, or involved an unreasonable application of clearly 2 established federal law within the meaning of 28 U.S.C. § 2254(d)(1). 3 Moreover, even assuming clearly established federal law provides that a failure to 4 sever trials or charges can rise to the level of a federal due process violation, Judge Lewis 5 was correct that Petitioner has not demonstrated that the appellate court’s adjudication of 6 his claim resulted in an objectively unreasonable application of that principal. Apart from 7 making conclusory speculations, Petitioner has made no showing that the evidence against 8 Valencia tainted him and downplays the fact that the jury was presented with evidence that 9 Petitioner guarded the victims, participated in their kidnappings, assisted in their murders, 10 facilitated the disposal of the bodies and aided in the post-murder clean-up. Accordingly, 11 the Court adopts the Report and denies the petition as to this portion of the sixth claim. 12 Similarly, Petitioner has simply made conclusory statements that the jury failed to 13 consider the evidence against each defendant separately and that because the jury heard 14 evidence of Valencia’s role in the Gonzalez-Tostado kidnapping while not being informed 15 of Valencia’s guilty plea on counts 8 and 9 related to the crime it was “left to speculate as 16 to why Valencia was not on trial.” [Doc. No. 1 at 41.] Therefore, Petitioner contends that 17 it was “reasonably likely that the jury’s confusion prevented it from making a reliable 18 judgment about Petitioner’s guilt or innocence.” [Id.] But, absent evidence that the jury 19 misused the Valencia evidence to convict Petitioner, the jury is presumed to have faithfully 20 followed the limiting instructions provided by the trial judge. Weeks v. Angelone, 528 U.S. 21 225, 234 (2000) (“A jury is presumed to follow its instructions.”); U.S. v. Olano, 507 U.S. 22 725, 740 (1993). Accordingly, the Court adopts the Report and denies the petition as to 23 this portion of the sixth claim. 24 As to the ineffective assistance of trial counsel portion of the claim, the Court agrees 25 with Judge Lewis that Petitioner has failed to allege facts which would, if true, establish 26 prejudice arising from trial counsel’s failure to seek severance of the trial or the counts 27 against him. Strickland¸466 U.S. at 687 (to successfully make an ineffective assistance of 28 counsel claim Petitioner must show that counsel’s performance was deficient and that the 19 3:16-cv-2646-CAB-(PCL) 1 deficiency prejudiced the defense). Moreover, as the superior court noted “[c]ontrary to 2 petitioner’s assertion, his trial counsel filed a motion for severance of the jury trial from 3 co-defendant Valencia … [and] sought bifurcation of trial on the gang enhancement 4 allegations prior to trial.” [Doc. No. 11-97, Lodgment 17, at 7-8.] As to the ineffective 5 assistance of appellate counsel portion, as discussed above, a petitioner making such a 6 claim must show that counsel failed to find non-frivolous arguable issues and, but for 7 counsel’s failure to file a merits brief on the issue, the petitioner would have prevailed on 8 his appeal. Smith, 528 U.S. at 288. Here, Petitioner has not overcome Strickland’s high 9 bar and demonstrated that appellate counsel’s decision to not appeal the trial court’s denial 10 of the motions to sever Petitioner’s trial and empanel dual juries, was unreasonable or that 11 Petitioner suffered sufficient prejudice to warrant setting aside his sentences. Accordingly, 12 the Court adopts the Report and denies the petition as to this portion of the sixth claim. 13 7. Claim Seven: Admission of evidence regarding gang membership. 14 Petitioner claims the trial court erred in a number of its evidentiary and discovery 15 rulings with respect to the gang enhancement evidence. [Doc. No. 1 at 46-59.] Petitioner 16 argues that the testimony of Agents Bird, Giboney and Weiler was prejudicial and 17 irrelevant because it resulted in the admission of unreliable and pseudo-scientific “expert” 18 opinion evidence regarding the Los Palillos cell and his affiliation to it. [Id.] In his 19 objections Petitioner focuses on the testimony of Agent Giboney and, relying on People v. 20 Sanchez, 63 Cal. 4th 665 (2016)13, contends that he did in fact identify the testimonial 21 22 23 24 25 26 27 28 13 In this 2016 decision, the California Supreme Court held that a gang expert may testify about his general knowledge but not about case-specific facts of which he has no personal knowledge, but they can “rely on background information accepted in their field of expertise . . ., [t]hey can rely on information within their personal knowledge, [] they can give an opinion based on a hypothetical case-specific facts that are properly proven . . . ., [and they] may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.” 63 Cal. 4th at 685-86. The Sanchez court explained that when a gang expert “relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay.” Id. In order to shed some light on its holding, the Sanchez court provided a handful of examples to illustrate the difference between background information versus case specific facts, for example: 20 3:16-cv-2646-CAB-(PCL) 1 nature of Agent Giboney’s gang expert opinion testimony, and the admission of this 2 testimonial hearsay violated the Confrontation Clause. [Doc. No. 36 at 48-57.] But, the 3 Sanchez decision is not determinative because its ruling does not constitute “clearly 4 established Federal law, as determined by the Supreme Court of the United States” and is 5 not binding on this Court. See Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002) 6 (“[D]ecisions of [the United States Supreme] Court are the only ones that can form the 7 basis justifying habeas relief . . . .”). 8 Further, much of Petitioner’s argument relies on alleged violations of California 9 Evidence Code, which cannot be the basis of a federal habeas claim. Estelle v. McGuire, 10 502 U.S. 62, 67-68 (1991) (“federal habeas relief does not lie for errors of state law”). 11 Additionally, Agent Bird’s testimony regarding the patterns and practices of drug cartels 12 is the type of propensity evidence the Supreme Court has reserved ruling on; therefore it 13 cannot be said that there is “clearly established federal law” recognizing such a claim. See 14 Id. at 75 n. 5 (the Supreme Court expressly reserved consideration of the broader question 15 of “whether a state law would violate the Due Process Clause if it permitted the use of 16 ‘prior crimes’ evidence” to demonstrate a defendant’s propensity to commit the charged 17 offense). See also Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) (the court held 18 that it could not conclude that the Nevada Supreme Court “acted in an objectively 19 unreasonable manner in concluding that the propensity evidence introduced against 20 [defendant] did not violate due process, given that Estelle expressly left this issue an “open 21 22 23 24 25 26 27 28 That an associate of the defendant had a diamond tattooed on his arm would be a case specific fact. The fact could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows that person belongs to the gang. Id. at 677. See also People v. Mearz, 6 Cal. App. 5th 1162, 1174-75 (2016) (following Sanchez, under state law gang expert “plainly permitted to testify to non-case specific general background information about gang, including “its primary activities” and “its pattern of criminal activity,” even if such testimony was “based on hearsay sources like gang members and gang officers.”) 21 3:16-cv-2646-CAB-(PCL) 1 question.”). Similarly, Agent Giboney’s testimony regarding the membership of Los 2 Palillos and the predicate crimes they committed falls into the same propensity evidence 3 category. Likewise, the testimony of Agent Weiler regarding Petitioner’s membership in 4 a Cuban drug gang in Kansas City is also propensity evidence and thus cannot form the 5 basis of a habeas claim. In sum, the right Petitioner asserts “has not been clearly established 6 by the Supreme Court, as required by AEDPA.” Alberni, 458 F.3d at 866 (2006). 7 Furthermore, Petitioner has made no showing that the state court’s alleged evidentiary 8 errors “so fatally infected the proceedings as to render them fundamentally unfair.” 9 Jammal v. Van De Kamp, 926 F.2d 918, 919 (9th Cir. 1991). 10 Also without merit is Petitioner’s argument that the expert testimony of Agent 11 Giboney violated his right to confront the witnesses upon whom the experts relied. As 12 explained by the magistrate judge, where, as here, an expert is subject to cross-examination 13 regarding his opinion, the expert is permitted to explain the facts on which his opinion is 14 based without violating the Confrontation Clause. Williams v. Illinois, 567 U.S. 50, 58 15 (2012) (“When an expert testifies for the prosecution in a criminal case, the defendant has 16 the opportunity to cross-examine the expert about any statements that are offered for their 17 truth. Out-of-court statements that are related by the expert solely for the purpose of 18 explaining the assumptions on which that opinion rests are not offered for their truth and 19 thus fall outside the scope of the Confrontation Clause.”) Additionally, the jury was able 20 to judge the credibility of Agent Giboney’s testimony in light of the sources he described 21 in his testimony and upon which he relied, and weigh it in conjunction with additional 22 evidence presented. While some portions of Agent Giboney’s testimony were case 23 specific, this testimony was not barred under state or federal law because he was present 24 during the interviews of Moreno and Pena, he had personal knowledge of the facts, and 25 was subject to cross-examination at trial. Equally unavailing is Petitioner’s contention that 26 the jury might have been confused by the dual testimony of Agent Giboney as an expert 27 and as an investigator. The jury was given a number of limiting instructions regarding 28 expert and gang evidence and Petitioner has failed to present any evidence that the jury did 22 3:16-cv-2646-CAB-(PCL) 1 not faithfully follow the instructions provided by the trial judge. Weeks, 528 U.S. at 234 2 (“A jury is presumed to follow its instructions.”); Boyde v. U.S., 494 U.S. 370, 378 (1990) 3 (following the familiar rule that “a single instruction to a jury may not be judged in artificial 4 isolation, but must be viewed in the context of the overall charge.”) (internal quotation 5 marks and citations omitted). 6 Petitioner also challenges the admission of testimony from informant G. Moreno 7 regarding the Balitas and Kilino crimes as being illustrative of predicate gang activities, 8 the modus operandi of Los Palillos, motive, and conspiracy. But, as Judge Lewis correctly 9 noted Petitioner has failed to show that the state court adjudication of the claim involves 10 an unreasonable application of clearly established federal law. See Holley, 568 F.3d at 11 1101 (acknowledging that the Supreme Court “has not yet made a clear ruling that 12 admission of irrelevant or overtly prejudicial evidence constitutes a due process violation 13 sufficient to warrant issuance of the writ.”). 14 15 In light of the above, the Court rejects the Petitioner’s objections, adopts the Report and denies the petition as to this evidentiary rulings portion of this claim. 16 As to the trial court’s discovery orders, Petitioner claims that “the defense was 17 forever playing catch-up.” [Doc. No. 1 at 55.] Specifically, Petitioner argues that: the 18 discovery protective orders put in place early in the proceedings prevented the defense 19 from acquiring the grand jury transcripts, police reports, and witness statements; the last 20 minute production of evidence on the eve of trial violated Petitioner’s due process rights; 21 Petitioner and Valencia were treated differently than cooperating witnesses Moreno Garcia 22 and Pena, and Petitioner’s trial notes were confiscated from his prisoner cell and reviewed 23 by the Prosecutor. [Id. at 56-57.] Although the Report is silent as to this portion of the 24 claim, the Court has reviewed Petitioner’s arguments regarding the discovery orders and 25 finds they were addressed by the trial court and reasonably denied. [Doc. No. 19 at 5-6.] 26 Furthermore, to the extent Petitioner is claiming a violation of state discovery law, he is 27 not entitled to federal habeas relief. Estelle, 502 U.S. at 67-68 (a violation of state 28 23 3:16-cv-2646-CAB-(PCL) 1 evidentiary or discovery law cannot form the basis of federal habeas relief). Accordingly, 2 the Court adopts the Report and denies the petition as to this portion of the seventh claim. 3 8. Claim Eight: Restitution fine. 4 Petitioner argues the restitution fines imposed by the trial court were made in error 5 because his ability to pay was not considered. [Doc. No. 1 at 60-65.]14 Petitioner asserts 6 the $1,000 restitution and $2,407.71 compensation he was ordered to pay is an excessive 7 fine which violates the Eight Amendment. [Id. at 60-63.] Further, Petitioner contends that 8 his trial court rendered ineffective assistance by failing to object to the fine and present 9 evidence of his inability to pay and that his appellate counsel also provided ineffective 10 assistance of counsel by failing to raise this issue on appeal. [Id. at 63-65.] But, as Judge 11 Lewis correctly noted, this Court lacks jurisdiction to consider Petitioner’s claim because 12 “§ 2254 does not confer jurisdiction over a state prisoner’s in-custody challenge to a 13 restitution order imposed as part of a criminal sentence.” Bailey v. Hill, 599 F.3d 976, 979- 14 80 (9th Cir. 2010). Additionally, as the magistrate judge correctly reported neither trial 15 nor appellate counsels’ failure to challenge the order rises to the level necessary to 16 successfully make an ineffective assistance of counsel claim. See, e.g., Miller v. Keeney, 17 882 F.2d 1428, 1434 (9th Cir. 1989) (appellate counsel is under no obligation to raise every 18 weak issue, in fact “the weeding out of weaker issues is widely recognized as one of the 19 hallmarks of effective appellate advocacy.”); Wildman 261 F.3d at 840 (“appellate 20 counsel’s failure to raise issues on direct appeal does not constitute ineffective assistance 21 when appeal would not have provided grounds for reversal.”). Accordingly, the Court 22 adopts the Report and denies the petition as to this claim. 23 24 25 26 27 28 14 Petitioner does not set forth any particular objection to this section of the Report. 24 3:16-cv-2646-CAB-(PCL) 1 9. Claim Nine: Arbitrary and perfunctory denial of habeas corpus relief to 2 indigent pro se petitioners. 3 Petitioner claims his state habeas petitions were denied on the pretext he did not 4 present a prima facie case for relief. [Doc No. 1 at 66-70]. Petitioner asserts that “the 5 petitions filed in the respective state courts clearly stated a prima facie case for relief and 6 alleged facts which if proven to be true, would require relief under both state and federal 7 law and rules of procedure.” [Id. at 66.] As Judge Lewis explained, to the extent Petitioner 8 is contending that 28 U.S.C. § 2254(d) is unconstitutional, such a claim has been rejected 9 by the Ninth Circuit. Crater v. Galaza, 491 F.3d 1119, 1126-30 (9th Cir. 2007). 10 Furthermore, as set forth above and in the Report, there is no basis for granting federal 11 habeas relief based on the state court adjudication of his claims. Accordingly, the Court 12 adopts the Report and denies the petition as to this claim.15 13 C. Certificate of Appealability 14 A petitioner complaining of detention arising from state court proceedings must 15 obtain a certificate of appealability to file an appeal of the final order in a federal habeas 16 proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate of 17 appealability if the petitioner “has made a substantial showing of the denial of a 18 constitutional right.” Id. § 2253(c)(2). To make a “substantial showing,” the petitioner must 19 “demonstrat[e] that ‘reasonable jurists would find the district court's assessment of the 20 constitutional claims debatable[.]’ ” Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir.2002) 21 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has not made a 22 “substantial showing” as to any of the claims raised by his petition, and thus the Court 23 DENIES Petitioner’s motion for a certificate of appealability. 24 25 26 27 28 15 Petitioner does not set forth any particular objection to this section of the Report. 25 3:16-cv-2646-CAB-(PCL) 1 2 3 D. Petitioner’s Request for an Evidentiary Hearing. Petitioner also requests an evidentiary hearing in these proceedings. [Doc. No. 16; Doc. No. 20, Traverse, at 9-10, 26.] 4 Section 2254(e) “substantially restricts the district court’s discretion to grant an 5 evidentiary hearing.” Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir. 1999). It provides: 6 If the applicant has failed to develop the factual basis for a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that (A) the claim relies on – (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 U.S.C. § 2254(e)(2). Petitioner identifies the voir dire transcripts, and Carlos Pena’s admission that he perjured himself at trial when he said that he was not the individual who placed the bag over Cesar Uribe’s head while Uribe was being strangled to death, as evidence that was not presented to the state courts. [Doc. No. 20 at 31-70.] As the magistrate judge correctly noted, even assuming the allegations regarding Carlos Pena’s admission of perjury are true, an evidentiary hearing is not required because the state court record provides an adequate basis to adjudicate his claims. [Doc. No. 25 at 96-97.] See Campbell v Wood, 18 F.3d 66, 679 (9th Cir. 1994) (evidentiary hearings are required when “the petitioner’s allegations, if proved, would establish the right to relief” but are not required when allegations are “conclusory and wholly devoid of specifics” nor “on issues that can be resolved by reference to the state court record.”) (internal citations omitted). There is ample evidence in the record to suggest that Petitioner’s conviction was based on more than just Pena’s perjured testimony regarding which individual placed the 26 3:16-cv-2646-CAB-(PCL) 1 bag over Uribe’s head. Regardless of who placed the bag over Uribe’s head, Petitioner 2 was identified by multiple witnesses as one of the individuals who kicked Uribe while he 3 was being strangled to death. Additionally, since Petitioner was not accused of placing the 4 bag over Uribe’s head, whether it was Pena or Estrada-Gonzalez who covered Uribe’s head 5 would have had no discernable effect upon Petitioner’s conviction. See Beardslee v. 6 Woodford, 358 F.3d 560, 585-86 (9th Cir. 2004) (an evidentiary hearing is also not required 7 if the claim presents a purely legal question, there are no disputed facts; Hendricks v. 8 Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992) (an evidentiary hearing is not required if the 9 state court has reliably found the relevant facts). Furthermore, Petitioner has not come 10 forward with a new rule of constitutional law or established by clear and convincing 11 evidence that no reasonable fact finder would have found him guilty. Thus, the Court 12 concludes that evidence of Pena’s perjury was not prejudicial and was unlikely to alter the 13 jury’s verdict. In addition, the Court agrees with the magistrate judge’s finding that the 14 voir dire transcripts are not necessary to address the Batson claim nor helpful to Petitioner. 15 The Court therefore DENIES Petitioner’s request for an evidentiary hearing. 16 17 18 E. Petitioner’s Request for Assistance of Counsel Along with his request for an evidentiary hearing, Petitioner requests appointment of counsel to assist him in these proceedings. [Doc. No. 16; Doc. No. 20 at 9-10, 26.] 19 18 U.S.C. § 3006A(a)(2)(B) provides that “[w]henever the United States magistrate 20 or the court determines that the interests of justice so requires, representation may be 21 provided for any financially eligible person who . . . (B) is seeking relief under section 22 2241 . . . .” The purpose of § 3006A is to provide for appointed counsel whenever required 23 if failure to do so amounts to a denial of due process. Chaney v. Lewis, 801 F.2d 1191, 24 1196 (9th Cir. 1986). Unless an evidentiary hearing is required, appointment of counsel 25 pursuant to 18 U.S.C. § 3006A(a)(2)(B) is in the discretion of the district court. Terrovona 26 v. Kincheloe, 912 F.2d 1176, 1181-82 (9th Cir. 1990). In deciding whether to appoint 27 counsel, the district court “must evaluate the likelihood of success on the merits as well as 28 27 3:16-cv-2646-CAB-(PCL) 1 the ability of petitioner to articulate his claims pro se in light of the complexity of the legal 2 issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 3 Here, there is no indication that appointment of counsel is necessary to prevent due 4 process violations. Chaney, 801 F.2d at 1196. The Court has reviewed Petitioner’s filings 5 to date and agrees with the magistrate judge’s finding that it appears that Petitioner has a 6 good grasp of this case and the legal issues involved. [Doc. No. 25 at 98.] The Court, 7 therefore, concludes that Petitioner is able to adequately articulate his position and 8 appointment of counsel is simply not warranted by the interests of justice. Accordingly, 9 the Court DENIES without prejudice Petitioner’s motion for appointment of counsel. 10 III. 11 In sum, Petitioner has not established that the appellate court's decision was contrary to, 12 or involved an unreasonable application of, clearly established federal law, or was based 13 on an unreasonable determination of the facts in light of the evidence presented in the state 14 courts. The Court hereby: (1) adopts the Report in full; (2) rejects Petitioner's objections; 15 (3) denies the Petition for Writ of Habeas Corpus [Doc. No. 1] ; and (4) denies the motion 16 for a certificate of appealability [Doc. No. 34]. CONCLUSION 17 Further, the Court hereby DENIES the Motion for Hearing and the Motion for 18 Appointment of Counsel [Doc. No. 16.] and GRANTS the Motion to Exceed Page Limit 19 [Doc. No. 36.] 20 21 It is SO ORDERED. Dated: January 8, 2018 22 23 24 25 26 27 28 28 3:16-cv-2646-CAB-(PCL)

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