NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 17 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL BURCIAGA,                               No.    19-55006

                Petitioner-Appellant,           D.C. No.
                                                2:17-cv-03830-JVS-PJW
 v.

RAYMOND MADDEN, Warden, Centinela               MEMORANDUM*
State Prison,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                             Submitted April 2, 2020**
                               Pasadena, California

Before: CALLAHAN and LEE, Circuit Judges, and LYNN,*** District Judge.

      Michael Burciaga was convicted in Los Angeles County Superior Court of

shooting at an occupied motor vehicle, unlawful possession of a firearm by a felon,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
and the attempted murders of Eddie Campbell and Adrian Torres. The jury found

that Burciaga committed the attempted murders with premeditation and

deliberation and also committed the attempted murders and the vehicle shooting

for the benefit of his gang and with the specific intent to assist criminal conduct by

members of the gang, qualifying Burciaga for certain sentencing enhancements.

On appeal, the California Court of Appeal found insufficient evidence to maintain

the gang enhancement for the attempted murder of Campbell, but otherwise

affirmed the verdict.1

      Burciaga filed a petition for writ of habeas corpus with the district court,

claiming insufficient evidence of premeditation and deliberation for both attempted

murders and of specific intent for the remaining gang enhancements. The district

court denied the petition on all grounds, but granted a certificate of appealability as

to the sufficiency of the evidence of premeditation and deliberation for the

attempted murder of Torres. Burciaga now appeals the district court’s denial of

habeas relief and seeks certificates of appealability on the remaining issues.2


1
  The California Court of Appeal found that, although gang members were at the
scene, there was no evidence that Burciaga acted with them when he attempted to
murder Campbell. In contrast, the court found that the evidence of Burciaga’s
cooperation with a gang member, Robert Valdivia, when Burciaga shot at Torres
was sufficient for the remaining gang enhancements.
2
  Burciaga also filed a Motion to Take Judicial Notice of a photograph of the house
at which the shootings took place, admitted at trial as People’s Exhibit 4, and an
aerial image of the house prepared by Burciaga’s counsel. The Motion is granted
with respect to People’s Exhibit 4, and denied with respect to the aerial image.

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      A petition for habeas relief challenging the sufficiency of the evidence must

establish that, after viewing the evidence in the light most favorable to the

prosecution, “no rational trier of fact could have found proof of guilt beyond a

reasonable doubt.” Jackson v. Virginia, 

, 324 (1979). Under the

Antiterrorism and Effective Death Penalty Act of 1996, relief is available if the

California Court of Appeal’s decision to affirm Burciaga’s conviction was an

unreasonable application of clearly established federal law. 28 U.S.C.

§ 2254(d)(1).

      There was sufficient evidence to support the jury’s finding that Burciaga

acted with premeditation and deliberation when shooting at Torres. Premeditation

and deliberation require advanced thought and the “careful weighing of

considerations in forming a course of action.” People v. Cole, 

,

1224 (2004). Evidence demonstrating premeditation and deliberation includes: (1)

planning; (2) motive; and (3) manner of the crime. People v. Anderson, 

, 26–27 (1968).

      Shortly before Burciaga fired at Torres, Robert Valdivia identified Torres’

presence by yelling, “That’s his nephew. Get him.” This evidences that Burciaga

and Valdivia came to an agreement for Burciaga to shoot Torres, though the time

of the dialogue was brief. See People v. Bolin, 

, 332 (1998), as

modified on denial of reh’g (Aug. 12, 1998). Furthermore, both Burciaga and


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Torres were members of the Puente Trece gang. Torres may have had a “Puente”

tattoo on his forehead at the time, and Burciaga may have seen Campbell—an

“original” and presumably well-known member of Puente Trece—hand Torres a

gun.

       Given the internal strife in the Puente Trece gang at the time, Burciaga and

Torres’ common membership in the gang supports the reasonable inference that

there was gang-related animosity between them. Potential gang rivalries can

support the existence of “a preplanned, purposeful resolve to shoot” gang rivals.

See People v. Sanchez, 

, 849 (2001) (emphasis present). Even if

Burciaga did not know Torres or his gang affiliation, Burciaga may still have

considered Torres a gang rival because Torres was associated with Campbell, a

well-known gang member with whom Burciaga’s brother had animosity. See

People v. Rand, 

, 1001–02 (Ct. App. 1995). Given the

evidence of planning and motive, a rational trier of fact could have found beyond a

reasonable doubt that Burciaga acted with premeditation and deliberation when he

fired at Torres, and the California Court of Appeal’s decision affirming the

conviction was not an unreasonable application of federal law. See Davis v.

Woodford, 

, 640 (9th Cir. 2004).

       Burciaga also challenges (1) the sufficiency of the evidence as to whether he

shot Campbell with premeditation and deliberation and (2) whether he possessed


                                          4
the necessary specific intent when he shot at Torres, who was in an occupied

vehicle, to apply the gang enhancement. We construe Burciaga’s briefing of these

uncertified issues as a motion to expand the certificate of appealability. See 9th

Cir. R. 22-1(e). So construed, we grant the certificates, assuming Burciaga “has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); see Miller-El v. Cockrell, 

, 336 (2003) (“Under the

controlling standard, a petitioner must show that reasonable jurists could debate

whether . . . the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”)

(internal quotation marks and alteration omitted).3 However, we deny Burciaga’s

sufficiency claims on the merits.4

      Consideration of the Anderson factors supports the sufficiency of the

evidence of Burciaga’s premeditation and deliberation when he shot Campbell.

After Campbell announced that he did not have a gun, Burciaga approached him

and then shot him during their argument. It was reasonable for the jury to infer


3
  In his opening brief, Burciaga also challenges the sufficiency of the evidence of
specific intent for the gang enhancement to his firearm possession charge.
However, the record indicates that the jury did not find the gang enhancement for
the firearm possession charge. Accordingly, Burciaga’s request for a certificate of
appealability on that issue is denied.
4
  Under Ninth Circuit Rule 22-1(f), we must allow the respondent an opportunity to
brief any previously uncertified issues before we grant relief. Because we deny
relief for Burciaga’s previously uncertified claims, we find no need to require
further briefing on those issues.

                                          5
that Burciaga approached the unarmed Campbell with a gun and a plan to shoot

him, if warranted when they talked. See People v. Romero, 

, 401

(2008). Burciaga also shot Campbell in the stomach at point-blank range, further

demonstrating premeditation and deliberation. See People v. Koontz, 

, 1082 (2002) (firing at a vital area of the body at close range is evidence of

premeditation and deliberation.). Viewing the trial record in the light most

favorable to the prosecution, a rational juror could have concluded that Burciaga

acted with premeditation and deliberation when shooting Campbell. The

California Court of Appeal did not unreasonably apply federal law in affirming

that conviction.

      There was also sufficient evidence that Burciaga shot at Torres with the

necessary specific intent to apply the gang enhancement. Cal. Penal Code

§ 186.22(b) requires proof that Burciaga committed the charged offenses “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.” A jury may infer specific intent to promote, further, or assist if the

“evidence establishes that the defendant intended to and did commit the charged

felony with known members of a gang.” People v. Albillar, 

, 68

(2010).

      Valdivia yelled, “That’s his nephew. Get him,” before Burciaga shot at the


                                           6
vehicle in which Torres sat. Valdivia was a member of the Perth Street clique of

Puente Trece. Given Burciaga’s willingness to accept the suggestion from

Valdivia to commit a violent act, Burciaga likely knew Valdivia’s identity and

gang membership. This certainly supports a reasonable inference that Burciaga

acted with a known Puente Trece–Perth Street clique member to shoot at an

occupied vehicle and attempt to murder Torres. Viewing the evidence in the light

most favorable to the prosecution, a rational juror could have concluded that

Burciaga acted with the necessary specific intent. Moreover, the California Court

of Appeal did not unreasonably apply federal law when it held that there was

sufficient evidence of specific intent to apply gang enhancements to Burciaga’s

attempted murder of Torres and shooting of an occupied vehicle.

      On appeal, Burciaga challenges, for the first time, the gang enhancements

based on the sufficiency of the evidence as to the existence of the gang that

Burciaga allegedly sought to promote, further, or assist. A habeas petitioner must

exhaust his state remedies before filing a petition for relief under 28 U.S.C. § 2254.

Manning v. Foster, 

, 1132 (9th Cir. 2000). A procedural default

from the failure to do so may be excused if the petitioner “can demonstrate cause

for the default and actual prejudice . . . or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson,

, 750 (1991). The latter is reserved for “an extraordinary case, where


                                           7
a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Murray v. Carrier, 

, 496 (1986). Such an

innocence claim requires “new reliable evidence . . . that was not presented at

trial.” Cook v. Schriro, 

, 1028 (9th Cir. 2008).

      We see no cause to excuse Burciaga’s procedural default. He has not

demonstrated a fundamental miscarriage of justice as he does not claim actual

innocence or present any new evidence. Therefore, his argument that there was

insufficient evidence to establish the existence of a gang, to support the gang

enhancement, is not properly before us.

      AFFIRMED.




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