ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK

EDWARD J. DAVILA, District Judge.

Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. The Court found the petition (Docket No. 5, "Petition"), stated cognizable claims which merited an answer from Respondent. (Docket No. 7.) Respondent filed an answer on the merits. (Docket No. 13, "Answer"). Despite three extensions of time (Docket Nos. 16, 18, 20), Petitioner failed to file a traverse. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is DENIED.

I. BACKGROUND

On May 19, 2011, Petitioner was found guilty by a jury in Contra Costa County Superior Court ("trial court") of first-degree murder of three people, conspiracy to commit murder, and participation in a criminal street gang. (See Pet. at 8.) Petitioner was sentenced to two consecutive terms of life in prison without possibility of parole, plus an additional sentence of 95 years to life. (See id.)

On July 6, 2016, the California Court of Appeal ("state appellate court") affirmed the judgment in a reasoned opinion, (Ans., Ex. 131; see also People v. Camacho, No. A132875, 2016 WL 3680119, at *1 (Cal. Ct. App. July 6, 2016)), but remanded to the trial court in part with directions to delete a 10-year gang enhancement to Petitioner's sentence (see id.). The California Supreme Court summarily denied a petition for review on October 12, 2016. (Exs. 15, 16.)

Petitioner filed the instant habeas petition on October 5, 2017.

II. STATEMENT OF FACTS

The following facts are taken from the opinion of the state appellate court on direct appeal:

Camacho, 2016 WL 3680119, at *1-8.

III. DISCUSSION

A. Legal Standard

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "Under § 2254(d)(1)'s `unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. The federal habeas court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Here, as noted above, the California Supreme Court summarily denied Petitioner's petitions for review. See supra at 2; (Exs. 15, 16). The California Court of Appeal, on direct review, addressed all the claims in the instant petition. (Ex. 13.) The Court of Appeal thus was the highest court to have reviewed the claims in a reasoned decision, and it is that decision that this Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).

The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, there is a heightened level of deference a federal habeas court must give to state court decisions. See Hardy v. Cross, 132 S.Ct. 490, 491 (2011) (per curiam); Harrington v. Richter, 131 S.Ct. 770, 783-85 (2011); Felkner v. Jackson, 131 S.Ct. 1305 (2011) (per curiam). As the Court explained: "[o]n federal habeas review, AEDPA `imposes a highly deferential standard for evaluating state-court rulings' and `demands that state-court decisions be given the benefit of the doubt.'" Id. at 1307 (citation omitted). With these principles in mind regarding the standard and limited scope of review in which this Court may engage in federal habeas proceedings, the Court addresses Petitioner's claims.

B. Claims and Analysis

Petitioner raises the following grounds for federal habeas relief:

(1) his right to due process was violated because one of the counts of murder rested on a theory of vicarious liability not permitted under California law;

(2) his convictions for one of the murders, for conspiracy to commit murder, and for participation in a street gang violated his right to due process because they were based on uncorroborated testimony of co-conspirators;

(3) his convictions for one of the murders violated his right to due process because there was insufficient evidence that the murder was committed in furtherance of or as a reasonable and probable consequence of the conspiracy;

(4) the trial court violated his right to due process by admitting testimony about his participation in gang crimes;

(5) the trial court violated his right to due process by allowing the jury to use his prior arrest on gun charges to convict him of conspiracy;

(6) admission of his statement to a jail officer violated his privilege against self-incrimination and his lawyer's failure to object to the evidence violated his right to the effective assistance of counsel;

(7) instructions to the jury not to speculate why accomplices were not being prosecuted violated his rights to confrontation and due process;

(8) prosecutorial misconduct violated his right to due process and his lawyer's failure to object to the misconduct violated his right to the effective assistance of counsel; and

(9) his sentence violated his right to be free from cruel and unusual punishment. (Pet. at 10-46.) Because Claims 6 and 8 challenge both an event in the underlying criminal trial and defense counsel's failure to object to that event, the Court will discuss these arguments as Claim 6A (the admission of the statement), Claim 6B (counsel's failure to object), Claim 8A (the prosecutor's conduct), and Claim 8B (counsel's failure to object to the prosecutor's conduct).

Respondent argues that Claim 1 is not cognizable because it is based on state law. Respondent argues that Claims 2, 4, 5, 6A, 7, and 8A have been procedurally defaulted. For the sake of efficiency, the Court will address these procedural arguments before considering the merits of petitioner's claims.

1. Non-Cognizable Claim

Respondent argues that Claim 1 is not cognizable because it is based on state, rather than federal, law. (See Ans. at 15-21.)

In Claim 1, Petitioner argues his conviction for the murder of Rico McIntosh is premised "on a legally erroneous theory of vicarious liability," because "conspiracy is not a valid theory of criminal liability under California law." (Pet. at 10.) Petitioner argues that, although California courts have recognized conspiracy as a theory of criminal liability, the legislature has not and so Petitioner's conviction is invalid. (See id. at 11.)

The state appellate court rejected this argument on direct appeal:

Camacho, 2016 WL 3680119, at *11.

Respondent notes that the state appellate court considered only California law when it rejected Petitioner's, and argues that "[t]his claim is not cognizable because federal habeas relief is available only to state prisoners who are `in custody in violation of the Constitution or laws or treaties of the United States.'" (Ans. at 20 (citation omitted).) Respondent is correct on both fronts. The Supreme Court has repeatedly held that the federal habeas writ is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Swarthout v. Cooke, 131 S.Ct. 859, 861-62 (2011); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle v. Isaac, 456 U.S. 107, 119 (1982); Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994); see, e.g., Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006) (claim that state supreme court misapplied state law or departed from its earlier decisions does not provide a ground for habeas relief); Moore v. Rowland, 367 F.3d 1199, 1200 (9th Cir. 2004) (per curiam) (state's violation of its separation-of-powers principles does not give rise to a federal due process violation); Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (state law determination that arsenic trioxide is a poison as a matter of law and not an element of the crime for jury determination is not open to challenge on federal habeas review); Franklin v. Henry, 122 F.3d 1270, 1272-73 (9th Cir. 1997) (court was bound by state court finding that a violation of state law had occurred, but still had to consider whether the violation amounted to a federal constitutional error). Because Petitioner's first claim is based purely on state law of which the interpretation or application is not cognizable in federal habeas, see Swarthout, 131 S. Ct. at 861-62; Estelle, 502 U.S. at 67-68, it is not cognizable.

2. Procedurally Defaulted Claims

Respondent argues that Claims 2, 4, 5, 6A, 7, and 8A have been procedurally defaulted because Petitioner did not object in the trial court. (See generally, Ans.) A review of the record reveals that Petitioner, in fact, failed to object at trial. (See generally, Ex. 13 ("Transcript").) The state appellate court found the failure to object dispositive of Claims 2, 4, 5, 6A, 7, and 8A. See generally, Camacho, 2016 WL 3680119. Accordingly, these claims were procedurally defaulted.

a. The state appellate court's findings

In Claim 2, Petitioner argues that his convictions "based on conspiracy depend on uncorroborated accomplice testimony" and that this violates his due process. (Pet. at 15.) The state appellate court concluded that Petitioner's claim was "both forfeited and unavailing." Camacho, 2016 WL 3680119, at *8. The state appellate court explained that "[s]ome of the CALJIC accomplice instructions ultimately given to the jury were listed among defense counsel's proposed jury instructions," and "defense counsel lodged no objection to the court's accomplice instructions proposed and ultimately given to the jury." Id. Because Petitioner's defense counsel did not object to these instructions at trial, the state appellate court concluded that this claim was forfeited. See id.

In Claim 4, Petitioner argues that statements regarding Petitioner's "participation in VFL crimes" were admitted in violation of Petitioner's Fifth and Fourteenth Amendment rights. (Pet. at 24.) The state appellate court concluded there was no error on the part of the trial court, because "defense counsel should have made a specific objection," but "failed to make an appropriate objection." Camacho, 2016 WL 3680119, at *12.

In Claim 5, Petitioner argues that the trial court "erred by letting the jury use [Petitioner's] 2006 arrest for gun possession" as evidence of his participation in the conspiracy, and that this error violates Petitioner's Fifth and Fourteenth Amendment rights. (Pet. at 28.) The state appellate court "conclude[d] defendant's claim of error is forfeited as he made no objection to the trial court's ruling on the two grounds he now asserts on appeal." Camacho, 2016 WL 3680119, at *13.

In Claim 6A, Petitioner argues that his right against self-incrimination was violated by the admission of his "acknowledgment of [gang] membership to a jail intake officer." (Pet. at 33.) The state appellate court noted that defense counsel "failed to object to the admission of any portion of" the intake officer's testimony. Camacho, 2016 WL 3680119, at *14.

In Claim 7, Petitioner argues that the trial court erred in giving the jury instruction CALJIC 2.11.5, which "directed the jury not to speculate why [certain] accomplice-informants were not being prosecuted." (Pet. at 37.) The state appellate court "conclude[d] defendant ha[d] forfeited appellate review" because "[a]t no time did defense counsel object to the use of" that jury instruction. Camacho, 2016 WL 3680119, at *15.

In Claim 8A, Petitioner argues that the prosecutor engaged in misconduct during Petitioner's criminal trial, in that the prosecutor attacked defense counsel's integrity, and that this misconduct violated Petitioner's right to due process. (See Pet. at 41.) The state appellate court "conclude[d] the argument [was] not preserved for appellate review," and that "defendant ha[d] forfeited his claim of error as he did not object or request an admonition in the trial court." Camacho, 2016 WL 3680119, at *16, 17.

Thus, the state appellate court reached particularized, record-based findings that petitioner failed to object as to Claims 2, 4, 5, 6A, 7, and 8A.

b. Analysis

A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In the context of direct review by the United States Supreme Court, the "adequate and independent state ground" doctrine goes to jurisdiction; in federal habeas cases, in whatever court, it is a matter of comity and federalism. Id. The procedural default rule is a specific instance of the more general "adequate and independent state grounds" doctrine. Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

Here, the state appellate court rejected Claims 2, 4, 5, 6A, 7, and 8A because Petitioner did not make the necessary objections in trial court. See Camacho, 2016 WL 3680119, at *8-17. The Ninth Circuit has specifically held that failure to comply with the California contemporaneous objection rule results in a procedural default. See Fairbank v. Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011); Rich v. Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999). Moreover, the Ninth Circuit has applied California's contemporaneous objection rule in affirming denial of a federal petition on grounds of procedural default where there was a complete failure to object at trial. See Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999). Accordingly, this Court cannot reach the merits of Claims 2, 4, 5, 6A, 7, and 8A because those claims were procedurally defaulted. See Coleman, 501 U.S. at 729-30.

There is an exception to procedural default, which applies when a petitioner shows "cause" for the failure to comply with the state procedural rule and "prejudice" arising from the default, or that the failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To establish cause, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish a "fundamental miscarriage of justice," a petitioner must demonstrate "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Wood v. Ryan, 693 F.3d 1104, 1117-18 (9th Cir. 2012) (internal quotation omitted). A claim of actual innocence is rarely met and must be based on reliable evidence not presented at trial. Casey v. Moore, 386 F.3d 896, 921 n.27 (9th Cir. 2004).

1. Petitioner did not raise cause as to Claims 2, 4, 6, and 7.

As to Claims 2, 4, 5, and 7, Petitioner has not made any showing of cause.2 The Petition makes no mention of why defense counsel failed to object to the events of which Claims 2, 4, 5, and 7 complain.3 (See generally, Pet.) Such an explanation is the sine qua non of a cause showing. See Carrier, 477 U.S. at 488 (requiring a petitioner to identify some "objective factor external to the defense"); see also Buffalo v. Sunn, 854 F.2d 1158, 1163-64 (9th Cir. 1988) (lockdown by prison officials established cause); Frost v. Gilbert, 835 F.3d 883, 889 (9th Cir. 2016) (en banc) (cause for failing to raise Brady and Napue violations existed when prosecution suppressed exculpatory evidence). Nor did the Petition argue that Petitioner was factually innocent (see generally, Pet.), as is required to establish that a fundamental miscarriage of justice will occur, see Wood v. Ryan, 693 F.3d at 1117-18. As Petitioner failed to file a Traverse, despite being given three extensions of time to do so, he likewise did not establish cause or a miscarriage of justice in such a document.

The Ninth Circuit has recognized that the petitioner bears the burden of establishing cause and prejudice, or a fundamental miscarriage of justice. See Madrid v. Gregoire, 187 F.3d 648 (9th Cir. 1999) (finding petitioner had not borne his burden of establishing cause); Woolery v. Arave, 8 F.3d 1325, 1331 (9th Cir. 1993) ("the burden of showing `cause and prejudice' is on the petitioner"); Blumberg v. Cal. Med. Facility, 967 F.2d 584 (9th Cir. 1992) ("The burden is on the petitioner to show cause and prejudice."). Because Petitioner did not even attempt to carry this burden as to Claims 2, 4, 5, and 7, these claims have been procedurally defaulted.

2. Petitioner raised, but did not establish, cause as to Claims 6A and 8A.

As to Claim 6A, Petitioner argues that his counsel provided ineffective assistance by failing to object to the admission of Petitioner's statement that he was a Sureño. (See Pet. at 27-30.) To establish good cause on the ground of ineffective assistance of counsel, a petitioner must show that (1) counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment, and (2) the deficient performance prejudiced the defense. Loveland v. Hatcher, 231 F.3d 640, 644 (9th Cir. 2000) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Petitioner raised this ineffective assistance argument to the state appellate court, and "argue[d] that his claim of error is cognizable on direct appeal because there can be no valid strategic reason why counsel would not have objected to the evidence." Camacho, 2016 WL 3680119, at *14. The state appellate court concluded that, even assuming the admission of Petitioner's statement was erroneous, "there was no prejudicial error" because "defendant's `gang affiliation was amply established by independent and uncontradicted evidence.'" Id. at *15. Specifically, the state appellate court noted that Petitioner's VFL membership was established by the testimony of four other VFL members, as well as by expert testimony, and the fact that Petitioner possessed "gang drawings and graffiti and notebooks with the notations of "Sur" and "13.'" Id. As discussed more fully below, see Section III.B.4.a, the Court agrees with the state appellate court that this evidence was sufficient to establish Petitioner's VFL membership even without admission of Petitioner's statement, and so Petitioner has not shown he was prejudiced by counsel's failure to object.

As to Claim 8A, Petitioner argues the failure to object was caused by ineffective assistance of counsel. (See Pet. at 42 ("Appellant would respectfully like to add to this claim that trial defense counsel rendered ineffective assistance by failing to object . . . .").) Petitioner did not raise this argument to the state appellate court. (See Ex. 6 at 97-99 (opening brief, not arguing that trial counsel should have objected to the prosecutor's alleged misconduct); see generally Exs. 8 and 9 (reply brief and supplemental opening brief, failing to argue about prosecutorial misconduct at all).) To serve as "cause," the claim of ineffective assistance of counsel must have been presented as an independent claim to the state courts. See Carrier, 477 U.S. at 489. Here, because Petitioner failed to argue to the state appellate court that his trial counsel was ineffective in not objecting to the prosecutor's misconduct, Petitioner has failed to establish cause as to Claim 8A.

Because Respondent has shown that Claims 2, 4, 5, 6A, 7, and 8A were procedurally defaulted, and because Petitioner fails to establish cause and prejudice for his procedural default, this Court cannot reach the merits of those claims.

3. Sufficiency of Evidence Claim

In Claim 3, Petitioner argues there was insufficient evidence to support his conviction for the murder of Rico McIntosh. Petitioner argues that the murder of Rico McIntosh was not "a reasonably foreseeable consequence" of the VFL conspiracy, and disputes the geographic breadth with which the VFL conspiracy was defined. (See Pet. at 21-23.) Petitioner contends that the VFL conspiracy only reached the city of Richmond, and so crimes committed in the city of San Pablo were not a reasonably foreseeable consequence of the conspiracy. (See id. at 21.) He argues that the shooting of Rico McIntosh in San Pablo was an "independent, spontaneous act," for which he should not be vicariously liable. (Id. at 23.)

On direct appeal, the state appellate court rejected Petitioner's claim:

Camacho, 2016 WL 3680119, at *10-11.

The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324.

The Supreme Court has emphasized that "Jackson claims face a high bar in federal habeas proceedings . . . ." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (finding that the 3rd Circuit "unduly impinged on the jury's role as factfinder" and failed to apply the deferential standard of Jackson when it engaged in "fine-grained factual parsing" to find that the evidence was insufficient to support petitioner's conviction). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993); see, e.g., Coleman, 566 U.S. at 656 ("the only question under Jackson is whether [the jury's finding of guilt] was so insupportable as to fall below the threshold of bare rationality"). Instead, the federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, has there been a due process violation. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338.

After AEDPA, a federal habeas court applies the standards of Jackson with an additional layer of deference. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Generally, a federal habeas court must ask whether the operative state court decision reflected an unreasonable application of Jackson to the facts of the case. Coleman, 566 U.S. at 651; Juan H., 408 F.3d at 1275 (quoting 28 U.S.C. § 2254(d)). Thus, if the state court affirms a conviction under Jackson, the federal court must apply § 2254(d)(1) and decide whether the state court's application of Jackson was objectively unreasonable. See McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Sarausad v. Porter, 479 F.3d 671, 677-78 (9th Cir. 2007). To grant relief, therefore, a federal habeas court must conclude that "the state court's determination that a rational jury could have found that there was sufficient evidence of guilt, i.e., that each required element was proven beyond a reasonable doubt, was objectively unreasonable." Boyer v. Belleque, 659 F.3d 957, 964-965 (9th Cir. 2011).

Here, the Court cannot conclude that the state appellate court's determination "was objectively unreasonable." As Respondent argues, "[t]here was ample evidence that the VFL gang committed assaults outside of Richmond in order to gain respect and promote the gang." (Ans. at 19.) First, at least three VFL members testified that leader "Gama" wanted to "bring the gang back" by, among other things, "being violent, shootouts, drive-bys, beating you up, whatever." (Tr. at 1316:8-21, 1427:22-25 (Sanchez), 1946:3-10 (Azamar).) Specifically, VFL was to "bring the hood back" by "shooting and beat[ing]" members of the rival Norteños gang. (Id. at 1326:14-23 (Sanchez), 1946:3-10 (Azamar, explaining that VFL would "bring the hood back" by engaging in violence against Norteños), 3525:5-19 (Ruelas, explaining that VFL members would "drive around . . . Pablo and stuff like that, just go looking for people to kill").) These VFL members also testified that VFL members went to San Pablo specifically to look for Norteños and, when they found Norteños, attacked them. (Id. at 1281:9-1283:26, 1311:16-1312:18, 1438:11-27.) In fact, as part of the conspiracy, Petitioner went to San Pablo and shot Luis Perez, because Luiz Perez was dressed in red, the color of the Norteños. See Camacho, 2016 WL 3680119, at *3. In light of testimony from other VFL members that the conspiracy extended to hunting and killing Norteños in San Pablo, and the fact that Petitioner went to San Pablo and shot someone he believed to be a Norteño, it was not "objectively unreasonable" for the state appellate court to conclude that a rational jury could have found the conspiracy extended to San Pablo. Accordingly, there was sufficient evidence of guilt.

Accordingly, Petitioner is not entitled to relief on Claim 3.

4. Ineffective Assistance Claims

Petitioner's Claim 6 complains of the admission of Petitioner's statement to a jail officer, and his Claim 8 complains of prosecutorial misconduct. As part of Claims 6 and 8, Petitioner argues that his trial counsel provided ineffective assistance by failing to object to the admission and misconduct, respectively. (See Pet. at 33-36, 42.) As noted, supra, the Court will refer to the ineffective assistance claims as Claim 6B and Claim 8B.

Claims 6B and 8B are without merit. In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, Petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as the result of the alleged deficiencies. Id. at 697.

A "doubly" deferential judicial review is appropriate in analyzing ineffective assistance of counsel claims under § 2254. See Cullen v. Pinholster, 131 S.Ct. 1388, 1410-11 (2011); Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (same); Premo v. Moore, 131 S.Ct. 733, 740 (2011) (same). The general rule of Strickland, i.e., to review a defense counsel's effectiveness with great deference, gives the state courts greater leeway in reasonably applying that rule, which in turn "translates to a narrower range of decisions that are objectively unreasonable under AEDPA." Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When § 2254(d) applies, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 131 S. Ct. at 788.

a. Claim 6B

Petitioner argues that his trial counsel erred in failing to object to the admission of Petitioner's statement to a jail officer, that Petitioner was a member of VFL. (See Pet. at 33-36.) The state appellate court considered and rejected this argument:

Camacho, 2016 WL 3680119, at *14-15.

Under a "doubly" deferential judicial review, the state appellate court did not unreasonably apply Strickland in rejecting Petitioner's argument. See Pinholster, 131 S. Ct. at 1410-11; Harrington, 131 S. Ct. at 88. As noted, supra, the state appellate court concluded that, even assuming the admission of Petitioner's statement of gang affiliation was erroneous, "there was no prejudicial error" because "defendant's `gang affiliation was amply established by independent and uncontradicted evidence.'" Id. at *15. The record reveals that Petitioner's VFL membership was independently established by the testimony of other VFL members, by expert testimony, and by Petitioner's possession of "gang drawings and graffiti and notebooks with the notations of "Sur" and "13.'" Id. Because Petitioner's VFL membership was established by ample independent evidence, counsel's failure to object to the admission of Petitioner's statement that he was a VFL member cannot be said to have prejudiced Petitioner.

Accordingly, Petitioner's claim for ineffective assistance of counsel fails.

b. Claim 6B

In Claim 8B, Petitioner argues that defense counsel was ineffective in failing to object to prosecutorial misconduct, specifically to the maligning of defense counsel. (See Pet. at 36.) Petitioner did not raise Claim 8B to the state appellate court. (See Ex. 6 at 97-99 (opening brief, arguing the prosecutor engaged in misconduct, but not arguing that trial counsel should have objected); see generally, Exs. 8 and 9 (reply brief and supplemental opening brief, failing to argue about prosecutorial misconduct at all).) Accordingly, Petitioner has not exhausted this claim. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (explaining that, to exhaust, a petitioner must invoke "one complete round of the State's established appellate review process."); see also 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement . . . unless the State, through counsel, expressly waives the requirement."). While this Court may deny an unexhausted claim on the merits, see Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (holding a court may deny an unexhausted petition that fails to raise a federal claim), it may not grant an unexhausted claim, see 28 U.S.C. § 2254(b)(1) (a habeas petition "shall not be granted unless it appears that . . . the applicant has exhausted the remedies").

In addition to being unexhausted, Claim 8B fails on the merits. The record reveals that the prosecutor did not engage in misconduct, and so defense counsel was not ineffective for failing to object. The state appellate court held:

Camacho, 2016 WL 3680119, at *18.

The record reveals that any objection to the prosecutor's alleged misconduct would have been meritless. Accordingly, the state appellate court's rejection of this claim was not unreasonable, because counsel did not give an incompetent performance in the trial court. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).

A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Under Darden, the first issue is whether the prosecutor's remarks were improper; if so, the next question is whether such conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005); see also Deck v. Jenkins, 768 F.3d 1015, 1023 (9th Cir. 2014) (recognizing that Darden is the clearly established federal law regarding a prosecutor's improper comments for AEDPA review purposes). A prosecutorial misconduct claim is decided "`on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014) ("Our aim is not to punish society for the misdeeds of the prosecutor; rather, our goal is to ensure that the petitioner received a fair trial."). Even if there was misconduct, a habeas petitioner is not entitled to relief unless the misconduct "`had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, state prisoners seeking federal habeas relief may obtain plenary review of constitutional claims of trial error, but are not entitled to habeas relief unless the error resulted in "actual prejudice." Id. (citation omitted); see e.g., Johnson, 63 F.3d at 930 (finding prosecutorial vouching "could not have had substantial impact on the verdict necessary to establish reversible constitutional error" under Brecht).

Here, a review of the record reveals that the challenged statements were not misconduct, and so counsel was not ineffective in failing to object to them.

Petitioner first challenges the prosecutor's statement to the jury that defense counsel was trying to "get you to take your eye off of what really happened, off of the truth." (Pet. at 41.) Courts are instructed to consider, among other things, "whether the [prosecutor's] comment was invited by defense counsel in summation." Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014). A prosecutor may fairly rebut defense counsel's contentions. See United States v. Bagley, 772 F.2d 482, 494 (9th Cir. 1985). Here, when the challenged statement is read in context, it is clear that the prosecutor was rebutting defense counsel's arguments rather than maligning defense counsel personally:

(Tr. at 3881:18-3882:7.) Because it is clear from context that the prosecutor was referring to defense counsel's tactics at trial and rebutting defense counsel's arguments, and the comments "did no more than respond substantially in order to `right the scale,' [the] comments [do] not warrant reversing [Petitioner's] conviction." United States v. Young, 470 U.S. 1, 12-13 (1985). Accordingly, the state appellate court reasonably found no evidence of prosecutorial misconduct in this regard. Therefore, it cannot be said that counsel rendered deficient performance by failing to make a meritless objection. See Juan H., 408 F.3d at 1273.

Similarly, Petitioner directs the Court's attention to "20 RT 3877-3878." (Pet. at 41.) On those pages of the transcript, the prosecutor stated that he was not misrepresenting the law, and that it was in the defense's interests rather than the prosecution's to misrepresent the law. (See Tr. at 3877:5-3878:25.) Read in context, it is clear that the prosecutor was responding to defense counsel's provocation. Specifically, defense counsel stated:

(Tr. at 3850:13-26.) Defense counsel thus appears to have suggested to the jury that the prosecutor had provided misleading excerpts, which gave an "impression" the jury should not "trust." It appears that the prosecutor did no more than "right the scale" in response to defense counsel's provocation, and so did not engage in misconduct. Again, because there was no prosecutorial misconduct, it cannot be said that counsel rendered deficient performance by failing to make a meritless objection. See Juan H., 408 F.3d at 1273.

Finally, even if the prosecutor had engaged in misconduct, any failure to object would not have prejudiced Petitioner in the context of this case. As noted several times above, the evidence against Petitioner was "ample" to the point of being overwhelming. Petitioner was found guilty of participation in a criminal street gang (see Pet. at 8), and the jury received evidence in the form of witness testimony, expert testimony, physical evidence, and Petitioner's own statements that he was a member of a criminal street gang. Petitioner was convicted of conspiracy to commit murder (see id.), and the jury heard testimony from multiple witnesses that VFL members decided to kill Norteños in order to "bring back" VFL's prestige. Petitioner was found guilty of murdering three people (see id.), and the jury heard testimony from two eyewitnesses who had seen Petitioner murder Luis Perez, an eyewitness who saw Petitioner murder Lisa Thayer, and an eyewitness to the Rico McIntosh murder who testified that the shooting was in furtherance of the conspiracy. In light of all this evidence, the Court cannot conclude that Petitioner was prejudiced by the prosecutor's rebuttal statements.

Accordingly, Petitioner is not entitled to relief on Claims 6B and 8B.

5. Eighth Amendment Claim

Petitioner's final claim is that his sentence to life imprisonment without the possibility of parole ("LWOP") constitutes cruel and unusual punishment. (See Pet. at 43-46.) Petitioner argues that the United States Supreme Court has found that an LWOP sentence for a juvenile is unconstitutional, and that Petitioner was little more than a juvenile when he committed the two murders. (See id. at 43.) Petitioner argues that because he was "immature [and] impetuous," he should be entitled to "the constitutional presumption of `lessened culpability.'" (Id. at 45.)

The state appellate court rejected this argument on direct appeal:

Camacho, 2016 WL 3680119, at *19.

This Court agrees with the state appellate court's determination. In the last fifteen years, the U.S. Supreme Court has issued opinions discussing the application of the Eighth Amendment to juvenile offenders: Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that the Eighth Amendment forbids the "imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed"), Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that the Eighth Amendment "prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide") (emphasis added), and Miller v. Alabama, 567 U.S. 460, 465 (2012) (holding that "mandatory life without parole [sentences] for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on `cruel and unusual punishments'"). However, petitioner was not legally a juvenile at the time of the crimes at issue in this case. Neither Miller, nor Graham, nor Roper precludes an LWOP sentence for an adult offender.

As Petitioner concedes (see Pet. at 44-46), the Supreme Court in Roper chose to draw a line for special sentencing rules, and set that line at age 18.

Roper, 543 U.S. at 574. That dividing line did not get moved by Graham or Miller. The Supreme Court cases thus mandate special consideration only for juvenile offenders (i.e., those offenders who committed their offenses while under age 18), and do not mandate special consideration of offenders who committed their offenses at age 18 or later. Because Petitioner was legally an adult at the time he murdered two people, and at the time he is legally liable for a third murder, the holdings of Roper, Graham and Miller do not apply to him. The U.S. Supreme Court has not determined that young adult offenders have a right to the same consideration as juvenile offenders for sentencing purposes.

Because Miller, Graham, and Roper do not apply, Petitioner's Eighth Amendment rights must be analyzed under general Eighth Amendment jurisprudence. Under that case law, his claim fails because the Eighth Amendment does not prohibit a life sentence for a person convicted of murder. "The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances." Graham, 560 U.S. at 59. "For the most part, however, the [Supreme] Court's precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime." Id. The Eighth Amendment contains a "narrow" proportionality principle—one that "does not require strict proportionality between crime and sentence," and forbids only "extreme sentences that are `grossly disproportionate' to the crime." Id. at 59-60. "[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare." Solem v. Helm, 463 U.S. 277, 289-90 (1983); see also Crosby v. Schwartz, 678 F.3d 784, 795 (9th Cir. 2012) ("Circumstances satisfying the gross disproportionality principle are rare and extreme, and constitutional violations on that ground are `only for the extraordinary case'"). Only in that rare case where a comparison of the gravity of the offense and the severity of the sentence leads to an inference of gross disproportionality does a court compare a petitioner's sentence with sentences for other offenders in the jurisdiction and for the same crime in other jurisdictions to determine whether it is cruel and unusual punishment. Graham, 560 U.S. at 60. Binding precedent establishes that a sentence of life in prison for murder does not lead to an inference of gross disproportionality, and therefore does not amount to cruel and unusual punishment forbidden by the Eighth Amendment. See United States v. LaFleur, 971 F.2d 200, 211 (9th Cir. 1991) ("Under Harmelin, it is clear that a mandatory life sentence for murder does not constitute cruel and unusual punishment"); Scott v. Kernan, 37 F.3d 1506 (9th Cir. 1994) ("a life term is not cruel and unusual punishment for first degree murder"); cf. Solem, 463 U.S. at 290 n.15 (discussing earlier case in which it had found the death penalty to be excessive for felony murder in the circumstances of a particular case; "clearly no sentence of imprisonment would be disproportionate" for the felony murder of an elderly couple). Courts in this District have repeatedly applied this principle in cases where the petitioner was a young adult. See Adams v. Frauenheim, No. 17-CV-01289-EMC, 2018 WL 3046939, at *8 (N.D. Cal. June 14, 2018) (petitioner was 18 years and 5 months old at the time he committed murder); Royston v. Grounds, No. C 12-3665 EMC PR, 2012 WL 5504191, at *2 (N.D. Cal. Nov. 13, 2012) (petitioner was 20 years old at the time he committed murder); Brooks v. Walker, No. C 09-1355 LHK PR, 2011 WL 902946, at *7 (N.D. Cal. Mar. 15, 2011) (petitioner was 21 years old when he committed murder); cf. United States v. Mitchell, 502 F.3d 931, 981 (9th Cir. 2007) (affirming capital sentence for 20-year-old, despite petitioner's argument "that it would violate the Eighth Amendment to sentence him to death because of his age and maturity level"). Accordingly, Petitioner's LWOP sentences do not raise an inference of gross disproportionality. See United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990) (generally, "so long as the sentence imposed does not exceed the statutory maximum, it will not be overturned on eighth amendment grounds").

For the reasons stated above, the state appellate court's rejection of Petitioner's Eighth Amendment claim was not contrary to or an unreasonable application of clearly established federal law, as set forth by the U.S. Supreme Court. The state appellate court reasonably determined the sentence was permissible under the Eighth Amendment. The state appellate court's decision was not an unreasonable application of Miller or any other decision clearly establishing federal law. As noted above, Miller's holding applied only to juvenile offenders; Petitioner was not a juvenile. Although the Court recognizes the harshness of the result, Petitioner is not entitled to the writ on this claim.

IV. CONCLUSION

After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus must be DENIED.

Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the Rules Governing Section 2254 Cases. Petitioner has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of Appealability in this Court but may seek a certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases.

The Clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file.

IT IS SO ORDERED.